International Human Rights Law and Practice: Implications for Women

By Florence Butegwa* (This article originally appeared in a publication by Women, Law and Development International entitled, From Basic Needs to Basic Rights: Women's Claim to Human Rights, edited by Margaret Schuler. Posted with the publisher's permission.)

There appears to be broad agreement that "modern" international human rights law owes its development to the United Nations and its institutions (Buergenthal, 1988; Renteln, 1990; Shelley, 1989). It is becoming increasingly clear that the human rights discourse is central to many multilateral and bilateral policy formulations whether within or outside the framework of the United Nations. Progress in the protections of human rights is a determining factor, at least at the rhetorical level and in certain international political contexts, in shaping international and bilateral political and economic relationships (Shelley, 1989).

In spite of this broad agreement and the significance of the concept of human rights in current politics at the national and international level, the exact meaning tends to be hazy, subjective and clouded by political self-interests of the states. The nature and content of human rights is as controversial today as it was in 1948 when the Universal Declaration of Human Rights was adopted.

This paper examines the concept of human rights, the development of international human rights law and the implications for the human rights of women. The major human rights instruments shy away from a definition of human rights, contenting themselves with an enumeration of the rights that they respectively seek to protect. Despite attempts by scholars to define the concept, it would appear from the formulations of the instruments and the practice of human rights treaty bodies, states and nongovernmental human rights organizations that the content of human rights and the nature and extent of obligations assumed by states is not definitive. It may vary from one historical moment to another. Human Rights is a dynamic concept and this fact has significant implications for women.

If the content of and obligations pertinent to changes with time, are they also influenced by cultural, religious and development specificity? In other words, is the controversy over the so-called universality or relativism of human rights significant to the women's human rights discourse? This paper argues that women's human rights are vulnerable in both theoretical and political positions. While many states and the international human rights bodies have historically promoted the concept of universal human rights, their practices have rarely addressed women-specific violations. Similarly, those states advancing the need for a concept of human rights that is sensitive and responsive to cultural, religious and developmental contexts have tended to raise their voices more in those issues of specific concern to women.

The development of human rights law and practice also has been significantly influenced by the still controversial concept of indivisibility of human rights. In spite of the Universal Declaration of Human Rights, which treated all human rights stated therein as equal, the practice has been for different states to give preference to either civil and political rights or economic, social and cultural rights. The so-called "Western" and "socialist" or developing country positions can easily be seen from the following excerpts:

Since human rights and fundamental freedoms are indivisible, the full realization of civil and political rights without the enjoyment of economic, social and cultural rights is impossible. The achievement of lasting progress in the implementation of human rights is dependent upon sound and effective national and international development policies of economic and social development (Proclamation of Tehran, 1968).

By contrast, some legal scholars do rank rights in order of importance. Cassese (1986), for example, argues, "Although it is not possible to rank human rights in order of preference, civil and political rights appear to be of primary importance."

The paper argues that the division of human rights into civil and political rights and the resultant hierarchical importance given to civil and political rights within the United Nations and in the practice of states have slowed down progress in the recognition and protection of women's human rights. They have also restricted the women's human rights discourse and jurisprudence to the framework of equality and discrimination. In this framework the theory, practice and application accept the male as the norm and point of departure (Peterson, 1990). As a result, legitimate concerns of women which lacked a male norm or experience, have been considered irrelevant to the human rights framework until very recently.

The end of the Cold War and the growth of a strong women's human rights advocacy movement have opened up possibilities for international human rights law to be relevant to the majority of the world's women. The progress made as a result of the Second World Conference on Human Rights in Vienna in 1993 needs to be consolidated by the development and jurisprudence and practice in women's rights in the United Nations human rights system, in regional human rights frameworks and in the work of nongovernmental organizations at all levels.

The Concept of Human Rights

Although human rights is a key concept in international law and relations, its precise meaning and content remain as controversial as ever. The Charter of the United Nations, to which the development of human rights law is often attributed, is a prototype. Article 1(3) includes, as part of the purposes of the organization, the promotion and encouragement of a respect for human rights and fundamental freedoms for all, but without defining them. (See also Article 55 and 56 of the Charter of the United Nations.) The Universal Declaration of Human Rights also shies away from a definition. Its preamble merely declares that "recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world." The operative articles merely list the rights and freedoms guaranteed by the Declaration. This pattern is repeated in the other major international human rights instruments. (See the International Covenant on Social, Economic and Cultural Rights, the International Covenant on Civil and Political Rights, the Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of all Forms of Discrimination Against Women and the Convention on the Rights of the Child.)

Human rights scholars either have assumed that the concept is universal and requires no definition or have offered definitions which offer little help to a person grappling with the questions of what a human right is and what qualifies something to be a human right. Henkin (1989) states that the idea of human rights is related, but not equivalent to, justice, good and democracy. It is a political idea with a moral foundation which defines the relationship that should exist between the individual and society (Henkin, 1989). Cranston (1973) defines human rights as moral rights which all men everywhere at all times ought to have and something which no one may be deprived of without grave affront to justice; something which is owing to every human being simply because he is human. Wasserstrom (1964) outlines the four characteristics which a human right must have:

First, it must be possessed by all human beings, as well as only by human beings. Second, because it is the same right that all human beings possess, it must be possessed equally by all human beings. Third, because human rights are possessed by all human beings, we can rule out as possible candidates any of those rights which one might have in virtue of occupying any particular status or relationship, such as that of parent, president, or promisee. And fourth, if there are any human rights, they have the additional characteristic of being assertable, in a manner of speaking, "against the whole world." (p. 50)

Stark (1989) sees human rights as internationally recognized norms for behavior of states and other persons in international law; Buergenthal (1988) defines human rights by reference to the law which governs human rights. He refers to "the law which deals with the protection of individuals and groups against violations by governments" (p. 1).

Attempts at defining human rights have not been central to the human rights discourse. There is a surprising and significant assumption, similar to that made by the human rights instrument, that the concept itself is obvious and does not require clarification. A look at the definition of human rights provided above shows the inherent difficulty of the concept. They range from the very abstract and justification-oriented approach offered by Henkin to the limited and pragmatic approach adopted by Stark.

The aim of this section of the paper is not to critique existing definitions, however, but rather to shed some light on the position of women within the human rights discourse. International human rights law has not been effectively used to redress violations of women's human rights (Cook, 1993). Is the problem inherent in the definition and perception of human rights as a concept? Wasserstrom's (1964) understanding of human rights as rights possessed by all human beings equally seems to reflect the notion underlying most human rights instruments. While there is no explicit reference to women in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights (ICCPR) or in the International Covenant on Economic, Social and Cultural Rights (ICESCR), all of the instruments implicitly include women in the "equality" context. The covenants underscore this "unisex approach" by providing that

each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as...sex... (Tomasevski, 1993).

Because women have not been perceived as having any human rights unique to their gender and not shared equally with men, any claims to entitlement to protection by women had to be framed within the "equality" framework. For women to show violations of their rights as women, they had to show that they were discriminated against in that the law or practices of the state failed to provide women the same protections as men. As a result, scholars and other proponents of women's human rights were forced to argue for recognition of specific women's human rights issues within the discrimination clauses of the international instruments.

It is this assumption of a "unisex" concept of human rights that needs closer attention and analysis. How objective and/or justified is this assumption of a "unisex" conception of human rights? Women and men do share some common aspirations as to fundamental rights and freedoms, but one cannot deny the fact that there are significant differences between men and women. The differences arise from biological differences as well as from the differential roles and vulnerabilities arising out of those biological differences. They may also arise from the socialization process and consequent roles and vulnerabilities associated with those roles.

It is from this perspective that women do have legitimate claim to human rights and fundamental freedoms due them as women. There are actions and/or omissions which impinge on "the inherent dignity" of women as members of the human family within the context of the Universal Declaration of Human Rights that are not experienced by men. When there is no equivalent category of experience for men, the equality or non- discrimination discourse found in most human rights instruments is inapplicable. The result has been an absence of guarantees for fundamental rights and freedoms when women are the actors most affected. A closer look at the interpretation and actions of various human rights organizations will confirm that despite claims of gender neutrality in human rights instruments, the monitoring bodies and human rights nongovernmental organizations have rarely considered human rights specific to women as worth monitoring and reporting upon.

Similarly, within national constitutions where the concept of gender neutrality has been adopted, interpretation and application tends to leave out women. A notable historical example (unfortunately still replicated in many countries) was the English Representation of the People Act (1867), granting men the right to vote. The term "man" was used in the text of the act. On the basis of the rule of interpretation that words importing the male gender shall be taken to include females, a woman, Mary Abbott, requested that her name be included on the electoral registrar. Her application was rejected by both electoral authorities and the courts in the ensuing court case (Tomasevski, 1993).

Acceptance by the international community of the demand for a specific framework for women's rights would give the human rights system effective mechanisms to address women-specific issues, including reproductive choice and health, and violence against women in all its forms, such as the slave-like practices like Ngozi in Zimbabwe or trokosi in Ghana in which young girls are given out (to other families or to shrines) in atonement for "wrongs" committed by their families.

Some encouraging steps toward broadening the language of human rights instruments to protect women have already been taken. In June 1993, the Second World Conference on Human Rights declared that:

The human rights of women and the girl-child are an inalienable, integral and indivisible part of universal human rights. Gender-based violence and all forms of sexual harassment and exploitation, including those resulting from cultural prejudice and international trafficking, are incompatible with the dignity and worth of the human person, and must be eliminated. (Vienna Declaration and Programme of Action, 1993, p. 33).

The United Nations General Assembly also has adopted the Declaration on the Elimination of Violence Against Women. The United Nations Commission on Human Rights has appointed a Special Rapporteur on Violence Against Women and has called upon other human rights bodies and special rapporteurs to deal with the issue of violence against women within their specific mandates. These advances are welcome but much more needs to be done in reconceptualizing human rights and the mandates and practices of the international community to address women-specific human rights concerns. The safeguarding of people's rights is, and will continue to be, both conceptually and practically, an unfinished task, a permanent challenge to take action to advance the humanization of the world community.

Universality of Human Rights

The magnitude of the horrors of the Second World War and the need to protect individuals from abuses on that scale provided sufficient incentives for states to put their own interests and claims of sovereignty in second place in 1948. States were able to adopt the Universal Declaration of Human Rights as a common standard of achievement for all peoples and all nations. The rights and freedoms guaranteed therein were to have universal validity and application. The concept of universality of human rights has become one of the cornerstones of the international human rights framework reiterated as recently as 1993. The Vienna Declaration and Programme of Action boldly assert that the universal nature of human rights is beyond question. This would appear to be borne out by the practice states in adopting the principles enshrined in the Universal Declaration of Human Rights into national constitutions and other domestic law or in relying upon it in their relationships with other states and intergovernmental organizations.

In spite of the apparent consensus on universality, however, it cannot be denied that when it suits some states, the idea of universal human rights has been and continues to be questioned and disowned. Demands for a concept of human rights that is sensitive to cultural and religious particularities and values continue to be voiced. Governments in national and international fora that demand cultural and religious hegemony argue that women's dignity is at risk when universal standards are applied in their countries, especially in the arenas of marriage and the family. Even within these spheres, aspects of culture that safeguarded the dignity of women have been largely discarded and/or made inoperable in the modern socio-economic environment.

A look at the Convention on the Elimination of All Forms of Discrimination Against Women may provide a good case study. It is the human rights convention with the most reservations attached. The reservations are not limited to procedural matters, but to substantive provisions, some of which go to the core and purpose of the convention. What is insightful is that some of the states entered reservations on articles they purport to accept in the context of other humans rights instruments. It is, therefore, pertinent to ask whether cultural and religious or other relativism in human rights theory and practice are in the interests of the protection of the human rights of women.

Indivisibility of Human Rights

For decades most "western" developed countries have put emphasis and resources on the promotion and protection of civil and political rights. They see these rights as necessary ingredients of good governance and democracy, which are prerequisites to development (Cassese, 1986). Several reasons have been advanced for this preference. Among these is the perceived cost of states of ensuring these rights. Civil and political rights are characterized as negative and cost-free rights in that governments are only required to abstain from activities which would violate them. This is contrasted with economic, social and cultural rights which require governments to do something, thereby committing considerable resources, to ensure individuals the enjoyment of those rights. An additional difference lies in the fact that civil and political rights are relatively capable of precise definition, readily justiciable and susceptible to enforcement (Alston, 1987).

A discussion of whether treating civil and political rights as superior rights is justified is beyond the scope of this paper. It is sufficient to make several observations. Privileging civil and political rights has resulted in significantly advancing those rights over the promotion of economic, social and cultural rights. The ICCPR has an Optional Protocol providing an individual complaints procedure. The right of access by individuals and the resultant interaction between the committee and state parties have given this treaty body the much needed political clout to be taken seriously. The Human Rights Committee has through its General Comments helped develop jurisprudence in the area of civil and political rights. The United Nations Commission on Human Rights has complemented and consolidated these advances through its special procedures. A significant number of nongovernmental organizations have complemented over the decades the work of the Human Rights Committee and the Commission on Human Rights in promoting rights and monitoring and reporting violations.

Indivisibility and the Human Rights of Women

While these developments are welcome, they have created an undesirable hierarchy among human rights. Civil and political rights are now referred to as first-generation rights. More conservative scholars and practitioners regard them as the human rights. These developments have had considerable implications for the human rights of women. Although women have made significant strides in the bid to play a key role in the politics of their countries, for the majority of women economic, social and cultural rights still remain a major concern. Women are concerned about enhancing their economic status as a major step in freeing themselves from economic dependence on men. This in turn contributes to ensuring their own dignity and life choices. Consequently, access to property, employment (Arts. 6, 7, ICESCR) and credit are crucial rights. Similarly, women are concerned that adequate housing, food, clothing and overall living standards be assured (Art. 11, ICESCR). Women want to work with the State to realize economic, social and cultural rights. It is crucial, therefore, that they be afforded opportunity for education at all levels (Art. 13, ICESCR). Because culture everywhere has a direct impact on the rights of women to exercise fundamental rights and freedoms, especially in developing countries, it is important that women participate in the definitions of cultural values and content (Art. 15, ICESCR).

Economic, Social and Cultural Rights and Human Development

It is not only in the interests of the human rights of women that greater promotion and protection of economic, social and cultural rights is important. Human development, dignity and security within the prevailing socio-economic order depend on it. The United Nations Human Development Report (UNDP, 1994) puts it in the following terms: For a long time, the concept of (human) security has been shaped by the potential for conflict between states.

For too long, security has been equated with threats to a country's borders. For too long, nations have sought arms to protect their security.

For most people today, a feeling of insecurity arises more from worries about life than from the dread of a cataclysmic world event. Job security, income security, health security, environmental security, security from crime - these are emerging concerns of human security all over the world.

A look at human development indicators for a majority of countries will show the urgent need for international human rights community, individual states, intergovernmental and nongovernmental organizations to give as much emphasis to the promotion of economic, social and cultural rights as is given to civil and political rights. For most countries, standards of living are falling. As countries struggle with economic structural adjustment programs, job security is no longer guaranteed. Government subsidies on health, education and other amenities are dwindling fast, exposing greater numbers to a life without health care and education. Malnourishment in children and adults in the developing world is an increasingly serious problem.

The Way Forward

There is an increasing sense of urgency and consensus that economic, social and cultural rights must be promoted and protected with greater zeal and efficiency than ever before. The Second World Conference on Human Rights resulted in the consensus that "all human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis" (Vienna Declaration, 1993, para. 5).

The Second World Conference further encourages the Commission on Human Rights, in cooperation with the Committee on Economic, Social and Cultural Rights, to continue the examination of optional protocols to the ICESCR (Vienna Declaration and Programme of Action, 1993, para. 75). Several other developments are also notable, including the appointment of a thematic working group on the right to development, which the Second World Conference affirmed as an inalienable fundamental right.

There is an urgent need on the part of the Committee on Economic, Social and Cultural Rights, the Commission on Human Rights, other human rights bodies and nongovernmental organizations to make concrete proposals for the effective implementation of the ICESCR. It is true that state parties to the Covenant enter into legally binding obligations to:

take steps, individually and through international assistance and cooperation, especially economic and technical, to the maximum of its available resources, with a vie to progressive realization of the rights recognized in the ...Covenant...

An analysis of this provision indicates that it was never envisaged that states would do nothing. Rather, states must take steps in accordance with heir resources to ensure progressive realization of these rights. The steps may include legislative action to remove barriers to realization of rights or may involve creating an environment conducive to the realization of the rights (Alston, 1987). To facilitate a definition of what steps might be adequate for compliance with the overall obligations in the Covenant (thereby assisting states parties in their reporting), there is a need to look at minimum standards in each area covered by the Covenant. In the field of health, for instance, what is the absolute minimum that states parties in the least developed countries group can do to comply with the obligations in the Covenant? The Covenant recognizes that the realization of rights has to be progressive and the pace is dependent on the resources available to the states. Unless attempts are made at more specific and quantifiable ways of measuring progress there is a real danger of states feeling overwhelmed by the task and just dismissing the entire Covenant as a mere statement of ideals rather than creating legal obligations.

The women's rights movement can play a key role in this process. As indicated earlier, economic, social and cultural rights are important in the struggle for equality and dignity for women. The Commission on the Status of Women, the Committee on the Elimination of All Forms of Discrimination Against Women and the various women's rights advocacy groups around the world need to take the issue of indivisibility of human rights seriously. Lobbying for a faster pace in the development of an optional protocol to the ICESCR is one aspect of the challenge ahead. Articulation of jurisprudence and concepts that define more concretely the obligations of the states is another and perhaps more crucial aspect. Lobbying for the strengthening of the Committee on Economic, Social and Cultural rights is the other aspect. Lobbying so-called mainstream human rights groups to address economic and social rights as an integral part of their mandate also is a means of adding pressure on states to act.

Conclusion

In conclusion, I refer to the words of Merek Thee (1993) that the pursuit of human rights is far from complete. It requires constant attention with a view to greater precision, amplification and actual incorporation in national and international law.

For the world's women, this observation is true. The international human rights community has a long way to go to guarantee the dignity of women. The challenge is to reconceptualize human rights to include the human rights of women and to extend beyond the dictates of equality to cover concerns particular to women as women. Related to this challenge of looking at culture, religion and other tenets of group identity as tools for the dignity of the group and for individuals rather than as a millstone to keep them in servitude and suffering human indignities. Another challenge is addressing economic, social and cultural inequities women suffer by promoting and protecting more effectively economic, social and cultural rights.

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*Florence Butegwa was the founder and coordinator of Women in Law and Development Africa (WiLDAF). She is currently with Associates for Change in Uganda.