16 Feminist critique of human rights
Dr. Y S R Murthy
TABLE OF CONTENTS
1. LEARNING OBJECTIVES
2. INTRODUCTION TO THE IDEA OF HUMAN RIGHTS
3. HISTORICAL CONTEXT
4. FEMINIST CRITIQUE TO HUMAN RIGHTS
- PUBLIC AND PRIVATE BIFURCATION OF HUMAN RIGHTS LAW
- CIVIL AND POLITICAL RIGHTS OVER SOCIAL AND ECONOMIC RIGHTS
5. WOMEN’S RIGHTS AS HUMAN RIGHTS
- POLITICAL AND CIVIL APPROACH
- SOCIO ECONOMIC APPROACH
- LAW ON WOMEN’S RIGHTS
- TRANSFORMATION OF HUMAN RIGHTS FROM WOMEN’S PERSPECTIVE
6. CONCLUSION
1. Learning Objectives
- In this module, the students will learn about the feminist perspective to human rights.
- How public-private divide in the International Law hampered the enjoyment of women’s rights.
- The students will also learn about the feminist movement to transform women rights issue into a human rights issue
- At the end of the module, the students will learn about the significance of this feminist movement and the effective changes it has brought.
2. Introduction to the idea of Human Rights
The contemporary idea of human rights came into existence after the Second World War. The allied powers had maintained that the reason for their inclusion in the war was the protection of human rights. The end of Second World War saw the emergence of United Nations Organization which was set up with the main purpose of acting as a promoter of human rights. The Universal Declaration of Human Rights adopted by the General Assembly of the United Nations in 1948 was seen as the Magna Carta of the contemporary international human rights. Numerous conventions and covenants have derived their authority from it.
Human rights are not an abstract idea but claims which are essential for every human being to live with dignity, decency and fairness. They are so essential to a person’s well-being that they are considered as immunities of a person against the government. To call such rights as “human” implies that they are universal and belong to every human being in every society. They are not limited by geography, gender, history, culture, birth, origin or any other classification.
Human rights are an obligation on the State which it has to fulfill or to provide remedies to people whose rights are violated. They are an entitlement of every human being and thus everyone must respect them.
Article 2 of UDHR asserts that “the rights and freedoms set forth in this declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status” shall be enjoyed by everyone. Since 1948, the world community has discussed many facets of human rights but these debates have not paid adequate attention to gender. The last two decades have witnessed a major surge in the development of women’s rights due to the development of the ideology of feminism. This includes a vast writing on
Source: http://www.genderandeducation.com/resources-2/feminism/
The concept of human rights is never static but ever expanding. In this view the feminist critique of human rights have an ultimate aim to redefine human rights through their specific experiences to transform their practice so that they take better account of women’s lives.
The foundation of the modern notion of human rights can be seen in the Western Society which makes them highly contested. Human Rights emerged as a result of certain political, economic and social conditions.
The feminist critique of human rights argues that the motive behind recognizing the notions of human rights was political as well as gendered. It mainly revolves around the argument that the construction of the human rights law is unsatisfactory for women because it reflects a male point of view. The feminist criticizes the public private divide in the International Human Rights law. The private aspect in which most women are relegated is beyond state control and thus it makes women vulnerable.
3. Historical Context
In the sphere of International Law, state is a subject. States only participate on behalf of the individuals who are part of the state in the international norm creation. However, after the World War II human rights protection took a centre stage as it was realized that the states are unable to protect its individuals. Thus, the International Human Rights Law became more and more centered to individual.
With the development in the feminist ideology in the 1980s, laws were analyzed from feminist perspective like other social sciences which raised the fundamental question about the very nature of the law. Though the influence of the ideology of feminism first had an impact on laws specifically pertaining to women like family law, equal remuneration, and reproductive rights it slowly and gradually started influencing the criminal law and constitutional law with a view to transform such law to make them gender neutral.
The development of International Human Rights Law is seen in a very optimistic way given its huge potential to protect the life and dignity of every human. Although, this very idea of human rights has been criticized when it claims that such notion of human rights is universal and neutral. The main criticism is from two section the culture relativists who claim that the human rights is not universal but relative to a culture they are applied in and feminist who argue that human rights are not neutral but male biased.
4. Feminist Critique to Human Rights
The feminist critique as earlier noted argues that the International human rights law has been so developed that it ignores the concern of women and has limited itself to responding to problems as and when they appear. Thus, the feminist view the notion of human rights as political and biased. Friedman states that ‘law respect and reinforces the interests of particular group in society, these interest have always been pre dominantly male.’1 Human rights laws have been created by people who were dominantly male and hence it is reflected in the law they framed for example the absence of female pronoun. Some critics have also described such law so framed as International men’s law. Charlesworth argues that ‘issues traditionally of concern to men are seen as general human concerns; women’s concern by contrast are regarded as a distinct and limited category.’
Feminist method of criticism is based on practical reasoning rather than on philosophical reasons. Their method begins from actual human experience and the problems they suffer. Such real life experiences are theorized by the feminist critique. Feminist ideology never functions in an isolated fashion but is interlinked with the contemporary social, political and economic problems. Thus this method of critique provides a very objective picture to the problem.
Feminist critique poses a great threat to the contemporary notion of human rights. These include the definition of human rights, the adjudication process as well as their enforcement. The most important aspect of this criticism is the threat to the subject matter of what is being protected by the human rights jurisprudence. The also challenge the working of legal institutions for human rights terming them as incapable and exclusionary.
Public and Private Bifurcation of Human Rights Law
The division of human rights law into public law and private law is central to the feminist critique of human rights. Such division is not only restricted to human rights law but a central to Western Liberal Thought. The problem that such division poses to women is that such division is formed parallel to the development of the idea of ‘state’ which is to be the guardian of the all the people living in it.
The division is based upon the idea that an individual’s life can be divided into two spheres. The first is the domestic sphere which is mainly the sphere of women and the second is the world outside which is the sphere of men. Such spheres are divided on the basis of gender role stereotyping. Women are supposed to take care of the home and children and thus are restricted to the domestic sphere and the evolution of male gender as the primary bread earner has made the outside sphere, the domain of men. This division runs parallel to the public private division. The domestic sphere is the personal zone of the individual and remains largely outside the state control, regulated by customs and cultural norms and the rest of the outside sphere is the civil and political society where social norms made by state comes into play. For example, states are reluctant in intervening in the cases of domestic violence but they easily intervene in the matters of family planning and abortion laws which violate the right to privacy of a woman.
Feminist critique also observes that the non western societies which criticizes the universalization of human rights example the Islamic Critique and the Asian Value Critique have no objection to the neutrality of human rights law. It is ironic as these societies witness the maximum violation of women’s rights. The reason for it can be seen in public private bifurcation. These societies have a concept of extended families and give more preference to community rather than individual which makes the private sphere very wide. Mcquigg rightly states:
Civil and Political Rights over Social and Economic Rights
Another sphere of the Feminist critique of human rights is the preference of civil and political rights over economic, culture and social rights. The narrow definition of human rights solely relies on violation of civil and political rights. There is a considerable concern, hue and cry when a person is beaten to death for expressing his political ideas in comparison to the reaction people have when a women is beaten to death. This is overlooked the state as well as the community. The main reason for it is again that the private sphere is not governed by the state by rituals and cultures which are patriarchal in nature. Some important aspect of women’s rights do not fit into civil liberties because it is a part of socio economic conditions.
Raine Eisler argues that:
“The issue is what types of private acts are and are not protected by the right to privacy and/or the principal of family autonomy. Even more specifically, the issue is whether violations and human rights within the family such as genital mutilation, wife beating and either forms of violence designed to maintain patriarchal control should be within the purview of human rights theory and action. This underlying problem of human rights theory, as for most other fields pf theory, is that the yardstick that has been developed for defining and measuring human rights has been based on the male as the norm”.
5. Women’s rights as Human Rights
The women’s right is treated as a different subject than the human rights however it is a part of it. Such classification has resulted in practical consequences. This distinction has led to the evolution of a idea that gives greater emphasis to human rights than women rights. For example, the Human Rights Commission of the United Nations has greater power than the Commission on the status of the women with respect to hear and investigation and budget and staff. Feminist criticizes this classification and argue that women rights are a part of human rights and thus similar emphasis be accorded to both. Such an argument has four approaches:
Political and Civil Approach
This approach is based on recognizing women violations as part of recognized political and civil liberties and hence increasing the visibility of women who suffer such violations. Example, violence against women can be recognized along with political and civil rights violations as ‘sexual torture of women political prisoners’. This approach not only helps in raising women’s concern but also addressing them. This approach places the women rights equivalent to human rights and thus makes it more visible to human rights groups.
Socio Economic Approach
This approach strikes at the predominance given to civil and political rights and argues that political rights are meaningless in the absence of economic rights. It focuses on economic rights of women and an end to their vulnerability to violence. It has succeeded in getting attention to
However this approach is limited to women economic development presuming that such development will end violence towards women and promote their rights. The development of women is very much needed to end their vulnerability but it should encompass political, economic and cultural empowerment.
Law on Women’s rights
This approach calls for state to take responsibility for protection of women’s rights and create laws for them. The existing laws which deals with sex determination and violence are an example of such approach. This approach is a way to expand state responsibility to private sphere.
The Convention on the Elimination of All Forms of Discrimination Against Women or CEDAW was adopted by General Assembly in 1979 and ratified by 104 countries. These countries are to report to the Committee on Elimination of Discrimination against Women on their compliance. This convention has a clear and definite human rights agenda for women but the limitation of this document is its little power to make its principles implemented. It is still treated as a document dealing with women’s rights and not human rights.
Transformation of Human Rights from women’s perspective
This approach seeks to transform human rights from a feminist perspective. It seeks to address violation of women’s right by the seeking a change in human rights concept and making it moe responsive to the problem of women. This approach asks some very pertinent question relating to human rights like who defines human rights and who has the authority to decide what can be included in human rights or not. A panel of the 1990 International Women’s Right Action Watch Conference asserted that “Violence against Women is a Human Rights Issue”
The basic foundation of human rights is equality that every person shall be treated with equality and dignity. The feminist critique of human rights is particularly significant because of the practical approach of such criticism. It flows directly from the experiences of the oppressed. The feminist perspective of human rights hit at the very basic foundation of human rights that true meaning of equality is not being treated same but being given equal freedom and opportunity by making the existing legal institutions more flexible.
Feminist methodology is not only significant with respect to human rights but for any social system. By looking at the experiences of women, it becomes easier to challenge the existing notion of human rights and their violations in specific culture. The discussion on feminist ideology have provided a framework where discussion on giving priority to women’s right over the right to culture for example genital mutilation has been possible.
Another significant achievement of the feminist critique is stirring the discussions on the generalizations of human rights violations. Feminist have hit at the very core of such generalization and has explained that the violations of women are different from violations of men. The torture inflicted on a female political prisoner is very different from the one inflicted on male political prisoner.
Feminist critique has placed a oppressed group at the forefront of the human right debate. It is because of such critique that now even within the oppressed groups of marginalized sections and refugees a greater voice is accorded to the experience of women.
Feminist perspective of human rights has challenged the institutional arrangements, sought answers to various questions and suggested pragmatic solutions to the present problem. It has thus succeeded in providing the picture of an alternative vision relevant to the the contemporaray society.
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- Shazia Qureshi, “Feminist Analysis of Human Rights Law”, Journal of Political Studies, Vol. 19, Issue 2, 2012. (Available at <http://pu.edu.pk/images/journal/pols/pdf- files/Shazia%20Qaureshi%20F1-winter2012.pdf>)
- Louis Henkin, “Introduction: The Human Rights Idea”, Foundation Press, 2009.
- Charloette Bunch, “Women’ Rights as Human Rights: Towards a revision of Human Rights” Human Rights Quaterly, Vol. 12, No. 4, (Nov. 1990), pp. 486-498
- Riane Eisler, “Human Rights: Towards and Integrated Theory for Action,” Human Rights Ouaterly 9 (1987): 297. See also Alida Brill, Nobody’s Business: The paradoxes of Privacy (New York: Addison-Wesley, 1990).
- Ronagh J. Mcquigg, “International Human Rights Law and Domestic Violence: The Effectiveness of International Human Rights Law,” Routlegde Taylor and Francis Group, London and New York, 2011.
- GrieBhaber, Rita, “Making Human Rights and Democracy a Reality for Women ” in Making Human Rights and Democracy a Reality for Women: 4th World Conference on Women, Demands of the Green Parliamentary Group Bonn: Bundnis 90/Die Grunen, August 1995.
- Mayer, Elizabeth, “Rhetorical Strategies and Official Policies on Women’s Rights: The Merits and Drawbacks of the New World Hypocrisy ” in Mahnaz Afkhami, ed. Faith and Freedom: Women s Rights in the Muslim World Syracuse, NY : Syracuse University Press, 1995.