CDDRL

WORKING PAPERS

Equality and
Difference:
Regional Courts
and Women’s
Human Rights

Helen Stacy

Center on Democracy, Development, and the Rule of Law

Stanford Institute for International Studies

Number 18
1 September 2004

This working paper was produced as part of CDDRL’s ongoing programming on economic and political
development in transitional states. Additional working papers appear on CDDRL’s website:
http://cddrl.stanford.edu. This paper also appears in the Stanford Public Law and Legal Theory Working Paper
Series http://papers.ssrn.com/sol3/papers.cfm?abstract_id=546202.
Center on Democracy, Development,
and the Rule of Law
Stanford Institute for International Studies
Stanford University
Encina Hall
Stanford, CA 94305
Phone: 650-724-7197
Fax: 650-724-2996
http://cddrl.stanford.edu/

About the Center on Democracy, Development and the Rule of Law (CDDRL)
CDDRL was founded by a generous grant from the Bill and Flora Hewlett Foundation in October in 2002 as
part of the Stanford Institute for International Studies at Stanford University. The Center supports analytic
studies, policy relevant research, training and outreach activities to assist developing countries in the design and
implementation of policies to foster growth, democracy, and the rule of law.

About the Author

Helen Stacy is a lecturer at the Stanford Law School and a senior research scholar at CDDRL. Her research
interests include human rights, jurisprudence, comparative law, and environmental law. Within CDDRL's Rule
of Law Program, she is coordinating a project on the functioning of the court system and the police in Romania,
as part of a comparative project examining rule-of-law reforms in Romania, Thailand and Mexico. She has
published extensively on international and comparative law; the adversarial system of law; legal and social
theory; and human rights. She is the author of Postmodernism and Law: Jurisprudence in a Fragmenting
World, (Ashgate Press, 2001), which explores the impact of postmodernism on legal thinking and discusses how
law can benefit from postmodern thought.
 Equality and Difference: Regional Courts and Women's Human Rights

Helen Stacy
Introduction
I. Setting the women’s international human rights scene
CEDAW
Practical problems with CEDAW and the international system
Reservations to CEDAW
Religious derogations from CEDAW
Reservations Based on Domestic Law
Recognition of Economic and Social Realities
The CEDAW Committee System
Operation
Problems and constraints
Applying CEDAW at the international level
Applying CEDAW at the national level
Applying CEDAW at the national level
Problems and constraints

II. Intellectual and Empirical Trends

A. Critique of International Law methods for women
1. Women’s Domestic Representation Is Mirrored in International
Representation
2. Difficulties of global application
B. Globalization’s effects upon women
1. Globalization and economy
2. Globalization producing gender conservatism

III. The regional supplement

A. Institutional models for expanded regional systems
1. Hybrid courts
(a) Advantages
i. Proximity begets legitimacy
ii. Technical and cultural expertise
(b) Drawbacks
i. Legitimacy
ii. Lack of resources
(c) Lessons learned
B. Current Regional Framework
1. The European human rights system
2. The Inter-American system
3. The African Union system
C. Regional court development: rational and recommendations
1. Rationale
2. What regional courts provide\
3. Specific Recommendations
a. Regional Protocols on the Rights of Women
b. An Asia-Pacific Human Rights Commission and Court
c. Cautionary note

Conclusion

1
 Equality and Difference: Regional Courts and Women's Human Rights

Helen Stacy*

Abstract

Women’s human rights lie at the intersection of two intellectual and political
movements: gender equality, and multiculturalism. In this chapter I argue that the role
and the reach of regional human rights institutions should be expanded so that they
participate more fully in developing women’s human rights jurisprudence. Regional
courts could help to mediate between the human right to be equal and the human right to
be different. Regional human rights institutions could provide an important institutional
supplement to better adjudicate differences between national and international human
rights standards.

Introduction

From its post-WW II inception, the international human rights system has
increasingly recognized that certain groups within society are especially vulnerable. As
early as the framing of the International Covenant on Civil and Political Rights, women’s
special needs have been recognized under two principal headings: women’s lack of
political power relative to men’s political power, and women’s special vulnerability
because of their biology.1 Women are especially vulnerable to sexual violence, and
women’s child-bearing and child-raising responsibilities render women especially
vulnerable to economic discrimination. In 1979, the Convention for the Elimination of
Discrimination Against Women (CEDAW) created international obligations upon
signatory nation states to institute national reforms for women’s political, economic,
social and cultural rights. Catalyzed by the spirit of second wave feminism of the 1960s,
CEDAW is one of the institutions of international law that encourages and impels nation
states to take better care of their women and children.

In the decades following CEDAW’s formation, intellectual trends and empirical

global conditions have altered. The politics of feminism have since merged into the
concerns of post-colonial peoples and, more recently, into a new debate about the status
of minority peoples. Other draft international treaties between the early 1980s and 1990s
articulated gender-neutral minority rights, cultural rights, and rights to self-determination.
But in seeming contradistinction to the universalist principle driving CEDAW, these
treaties exhibit a new respect for human diversity. With the advent of multiculturalism,
the politics of feminism must interact with the politics of difference.

*
Stanford Institute for International Studies. E-mail: hstacy@stanford.edu. My thanks go to Kathleen
Sullivan for her thoughtful listening and her patiently close reading; and to Christine Keller, Alexander
Rosas and Luke Barefoot for their excellent research assistance.
1
See Ruth Bader Ginsburg, “Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade”
originally delivered as the William T. Joyner Lecture on Constitutional Law at the University of North
Carolina School of Law on April 6, 1984, and reproduced in Frances E. Olsen (ed), Feminist Legal Theory
I: Foundations and Outlooks (1995), 281.

2
 Global economic conditions have also altered markedly in the last decade.
Population movements in the post-Cold War period have produced interactions among
national, ethnic and religious groups on a scale not envisaged when these international
human rights treaties were first framed. New technologies have created a heightened
awareness of cultural minorities within nation states and also of the differences between
national legal systems. Globalization has given new impetus to the debate about
universal standards of human rights versus multiculturalism. Women are at the nexus of
this debate.

In this paper, I argue that expanded and invigorated regional human rights
systems are an important bridge between women’s human rights and multiculturalism.
Women’s human rights intersect with region-specific problems and contexts as well as
national governments’ commitments and capacities. A more explicit system of power
sharing between the international and the regional human rights systems could lead to
more accurate measurements of human rights compliance by states. It could encourage
more honest assessments of whether departures from international human rights standards
are premised upon legitimate national constraints, or are instead simply a shield for
national governments reluctant to step up to their human rights plate. Regional human
rights commissions and courts have the advantage of proximity to the local and regional
context and could thus formulate standards of human rights for nation states that are both
morally credible and practically attainable. Through a more practically grounded
knowledge of national contexts, regional systems can help to build a women’s human
rights jurisprudence that is compatible with today’s conditions.

In what follows, Part I sets out the architecture of the international women’s
human rights system, pointing out the practical and conceptual problems in achieving
CEDAW compliance from recalcitrant nation states. Part II sets out the changing
normative terrain of the debate about women and multiculturalism. This debate is
accelerating under the new conditions of globalization and the economic and legal
responses to it. Globalization reinforces the need for a better-developed jurisprudence of
women’s human rights. Finally, Part III proposes a stronger role for regional courts in
developing women’s human rights jurisprudence, and makes specific recommendations
about institutional structure and policy.

1. Setting the women’s international human rights scene

(A) CEDAW

“CEDAW”, the International Convention on the Elimination of All Forms of

Discrimination against Women, sets the international benchmark for women’s human
rights.2 Adopted by the General Assembly of the United Nations in December 1979, it
remains open for the accession and ratification of individual nation states. CEDAW has

2
Convention on the Elimination of All Forms of Discrimination Against Women, opened for signature
Mar. 1, 1980, T.I.A.S. No. 8289, 1249 U.N.T.S. 14, available at
http://www.un.org/womenwatch/daw/cedaw/.

3
been signed by ninety-eight countries and has received 175 ratifications, accessions and
successions.

CEDAW establishes that nation states carry the responsibility of instituting the
international standards of human rights for its women. For example, CEDAW requires
states to eliminate discrimination against women in the enjoyment of all civil, political,
economic and cultural rights and to also establish programmatic measures for the
achievement of equality between women and men.3 Articles 2 and 16 of CEDAW are
core provisions because they set out the key principles of gender equality and the
obligations of the states to ensure them (Article 2) and the equality of women with men in
all matters of family life (Article 16). Like all international human rights treaties, state
participation in CEDAW is voluntary. Some nations, like the US, have yet to adopt
CEDAW.4 Other nations have signed on to the treaty but have also entered reservations
to specific Articles, exempting themselves from particular human rights obligations under
the treaty.

While the main emphasis of CEDAW lies in ensuring women's equal access to,
and equal opportunities in, political and public life such as the right to vote and the right
to stand for election, there are also provisions about equality of opportunity in education,
health and employment. States further agree to take appropriate measures to modify
customary, social and cultural behaviors that are based on gender inferiority or on
stereotyped roles for men and women (Article 5); and to suppress all forms of traffic in
women and exploitation of women (Article 6). The Convention also affirms the
reproductive rights of women (Article 11.2); affirms women's rights to acquire, change,
or retain their nationality and the nationality of their children (Article 9); and affirms full
equality before the law (Article 15).

(B) Practical problems with CEDAW and the international system

While the language of CEDAW seems clear enough, the international system has
had some difficulties in applying it to women in all the signatory states. CEDAW is
likewise framed in universal language, stating one common human rights standard for all
women, regardless of their racial, religious, or ethnic origin. In stating this, CEDAW is
like all international human rights treaties, expressing the belief that individual human
worth and dignity is the fundamental human value worthy of universal legal protection by
the state. Individual autonomy is ranked ontologically prior to group affiliation and
group practices and international treaties use the language of universalism to express this.
But the individualistic assumptions behind CEDAW’s provisions are controversial. They

3
Countries that have ratified or acceded to the Convention are legally bound to put its provisions into
practice. They are also committed to submit national reports, at least every four years, on measures they
have taken to comply with their treaty obligations. Currently, 173 countries - more than two- thirds of the
members of the United Nations - have ratified the Convention, committing them to a legally binding
international treaty, including participation in a country-by-country reporting process. An additional 97
countries have signed the treaty, binding them to do nothing in contravention of its terms.
4
See Sean D. Murphy, Contemporary Practice of the U.S. Relating to International Law 96 A.J.I.L. 956,
971-72 (2002) (explaining that after the U.S. executive signed CEDAW in 1980, continuing attempts to
procure the consent of the U.S. Senate have failed).

4
have led many Asian, Middle Eastern and some Islamic countries to enter reservations to
CEDAW, citing theocratic or cultural values that they claim are instead premised on
group identity and collective well being.

1) Reservations to CEDAW

Like many international treaties, CEDAW expressly permits state parties to enter
reservations. However, CEDAW stands apart from other international human rights
treaties in both the large number and the substantive nature of the reservations that nation
states have entered to it.5 CEDAW restates the general Vienna Convention rule,
providing that a “reservation incompatible with the object and purpose of the present
convention shall not be permitted.”6 But whereas most international treaties carry only a
handful of reservations, of the 175 states that have ratified or acceded to CEDAW, 54
have entered treaty reservations.7 Fifteen states have reservations relating only to the
treaty’s dispute resolution mechanism, and the remaining 39 states have substantive
reservations that eliminate or modify the state’s obligations under the Convention.
Although the specific structure and language varies, these reservations fall along similar
fault lines. States have cited economic imperatives, Islamic law, the purported need for
religious freedom, or domestic law to trump even CEDAW’s most central guarantees. In
this way, CEDAW reservations are both quantitatively and qualitatively more troubling
than those in other treaty regimes.8

(a) Religious Derogations from CEDAW

Many nations have entered reservations limiting CEDAW’s application based on

the mandates of Islamic or Sharia law. Often, these reservations are formulated in
sweeping language declaring that the state will not comply with any treaty provisions that
derogate from Sharia law.9 This renounces all CEDAW obligations that conflict with
Islamic law without specifying the content of that law or the particular instances where it
modifies the state’s CEDAW commitments, leading one scholar to identify Sharia-based
reservations as the “most problematic” of the international human rights treaty regime.10
Other predominantly Islamic states have more limited reservations to CEDAW.

5
See Madhavi Sunder, Piercing the Veil, 112 Yale L.J. 1399, 1425 (2003) (“CEDAW has the dubious
distinction of having the highest number of reservations by the states party to it”). See also, William A.
Schabas, Reservations to the Convention on the Elimination of All Forms of Discrimination Against Women
and the Convention on the Rights of the Child, 3 Wm. & Mary J. of Women & L. 79, 84-86 (1997).
6
CEDAW, supra note 2, art. 28(a).
7
See Belinda Clark, The Vienna Convention Reservations Regime and the Convention on Discrimination
Against Women 85 A.J.I.L. 281, 283 (1991) (comparing CEDAW with CERD, to which only four states
had entered substantive reservations as of 1991).
8
See Jennifer Riddle, Making CEDAW Universal: A Critique of CEDAW’s Reservation Regime Under
Article 28 and the Effectiveness of the Reporting Process, 34 Geo. Wash. Int’l L. Rev. 605, 627 (2002).
9
See, e.g., Multilateral Treaties Deposited with the Secretary-General (hereinafter, Multilateral Treaties), at
233, U.N. Doc. ST/LEG/SER.E/14 (2002) (Saudia Arabian reservation stating that “in case of contradiction
between any term of the convention and the norms of Islamic law, [it] is not under obligation to observe the
contradictory terms of the Convention”); see also, Ibid at 231 (Mauritania reservations approving CEDAW
where “not contrary to Islamic Sharia and in accordance with our constitution”).
10
Schabas, supra note 5, at 84.

5
Morocco, the Maldives, and Egypt have entered reservations declaring they will not
comply with CEDAW’s grant of equal rights during marriage, citing Sharia law’s design
of “true equality between the spouses.”11 Singapore has limited compliance with
CEDAW by reference to preserving diversity, invoking “the context of Singapore’s
multi-racial and multi-religious society,” as justification.12

Sharia-based reservations have repeatedly drawn objections from other nations.

Finland, for example, has argued that the “unlimited and undefined nature” of
reservations based on Sharia law “create serious doubts about [a state’s] commitment to
fulfill its obligations under the Convention, [as]…[t]hey are clearly contrary to the object
and purpose of the Convention.”13 Similarly, the U.N. Committee for the Elimination of
All Forms of Discrimination Against Women has declared that reservations like this are
“incompatible with the object and purpose of the present convention”.14 In response to
these objections, some states in the global south have withdrawn or narrowed the scope
of their reservations.15 However, these may be “little more than semantic”16 rather than a
sincere wish to institute gender equality.

While Sharia-based reservations entered by Muslim countries are generally the

most serious, several other nations have used religion to disclaim adherence to CEDAW
guarantees. The United Kingdom, Ireland, and Lesotho make clear that CEDAW will
not apply to religious groups.17 Similarly, Israel’s reservation rejects the obligation to
appoint women to religious courts, and states that Article 16’s personal status provisions
such as rights within marriage, parental responsibility, and reproductive agency don’t
bind Israeli religious communities.18

(b) Reservations Based on Domestic Law

Many nations have entered reservations that limit CEDAW compliance by

reference to their domestic law or their domestic constitution. Some of these nations
guarantee compliance only where the Convention is consistent with the domestic
constitution. For example, Mauritania has stated that it approves the convention only

11
Multilateral Treaties, supra note 9, at 231 (Morocco), 230-31 (Maldives), and 228 (Egypt). Other
Muslim states have entered similar Sharia-based reservations to specific CEDAW guarantees: Bahrain,
Ibid. at 227 (reserving compliance w/ Article 16 based on Sharia law); Kuwait, Ibid. at 230 (rejecting
CEDAW’s equal rights to adoption and guardianship based on Sharia); Malaysia, Ibid. at 230 (reserving
compliance with CEDAW rights to property division, public offices appointment, and children’s
nationality, all with reference to Sharia mandates).
12
Ibid. at 233. For another example of targeted Islamic CEDAW reservations, see Syria’s reservation, Ibid.
at 233 (stating that Syria will not comply with Article 16’s prohibition on betrothal or marriage of a child
insofar as it is incompatible with Sharia law).
13
Ibid. at 238.
14
Schabas, supra note 5, at 85, citing Report of the Committee for the Elimination of All Forms of
Discrimination Against Women, U.N. GAOR, 49th Sess., Supp. No. 38, at 13, U.N. Doc A/49/38 (1994).
15
Multilateral Treaties, supra note 9, at 250-54 (showing that since 1996, Bangladesh, Brazil, Cyprus,
Malawi, Mauritania, and South Korea have withdrawn or narrowed their CEDAW reservations) .
16
Sunder, supra note 5, at 1427.
17
Multilateral Treaties, supra note 9, at 234 (U.K.), at 229 (Ireland), and at 230 (Lesotho).
18
Ibid. at 229-230.

6
where in accordance with its domestic constitution, and not contrary to Islamic law.19
Similarly, Pakistan has provided that its accession to the Convention is subject to
provisions of the domestic constitution.20 Even Liechtenstein has reserved the right to
apply Article III of its constitution to all its treaty obligations, which preserves the
patrilineal monarchy under Liechtenstein’s constitution.21

Other nations have entered less far-reaching reservations based on domestic law
that apply only to specific Convention guarantees. Algeria has entered reservations
stating that the Algerian Family Code trumps CEDAW provisions on women’s choice of
residence and marriage rights and that CEDAW’s rights on nationality are subject to the
Algerian Nationality Code.22 Tunisia and France have similarly stated that CEDAW’s
provisions on nationality will not be interpreted as precluding application of their
domestic nationality codes.23 Even Switzerland has declared that its domestic laws on
women in armed conflict, family names, and marriage, override CEDAW.24

Commentators have noted that under the Vienna Convention, a country may not
justify noncompliance based on domestic law.25 It is thus unsurprising that CEDAW
derogations based on domestic law have also drawn objections. For example, the
Netherlands has stated that reservations “invoking national law and the Constitution, may
raise doubts as to the [state’s] commitment…to the object and purpose of the Convention
and, moreover contribute to undermining the basis of international treaty law.”26 Despite
objections like this, reservations to CEDAW grounded in domestic law remain common.

(c) Recognition of Economic and Social Realities

A few states share reservations that accept CEDAW rights and endorse their
importance, but recognize the state’s limited ability to implement those rights. For
example, India supports CEDAW Article 16(2)’s requirement of a marriage registry, but
states in its reservation that it has practical implementation problems in such a vast
country with such varying customs, religions, and literacy levels.27 Similarly, Mexico’s
reservation makes it clear that the state will only grant material benefits in accordance
with the convention as the state’s material and economic resources permit.28 Niger has
entered reservations to several CEDAW treaty provisions that it believes cannot be
instituted immediately because they conflict with existing customs, and can only be

19
Ibid. at 231.
20
Ibid. Lesotho and Tunisia provide similar examples, as their reservations free them from taking any
action that would conflict with their domestic constitutions. Ibid. at 230 (Lesotho) and 223-24 (Tunisia).
21
Ibid. at 230.
22
Ibid. at 226.
23
Ibid. at 223-24 (Tunisia) and 228 (France). See also Morocco and Tunisia’s reservations that recognize
the right to choose domicile only to instances where it would not conflict with domestic law. Ibid. at 231
(Morocco) and 223-24 (Tunisia).
24
Ibid. at 233.
25
Clark, supra note 7, at 294.
26
Multilateral Treaties, supra note 9, at 238.
27
Ibid. at 229.
28
Ibid. at 231.

7
remedied gradually as society evolves.29 In the same vein, Malta’s reservations under
Articles 13, 15, and 16 preserve present legislation until such time as the law can be
reformed.30

2) The CEDAW Committee System

(a) Operation

Like a handful of other important international human rights conventions,

CEDAW has its own United Nations Committee. This Committee is responsible for
monitoring and enforcing CEDAW and assessing the progress made by nation states
through periodic reports submitted by state parties.31 Country reports submitted to the
Committee must describe the state’s compliance with CEDAW and measures taken by
the state to eradicate discrimination against women.32 The Committee may make
suggestions and general recommendations based on the examination of reports and
information received from the States Parties.33 These reports both praise and castigate,
noting progress as well as identifying the worst failures of states to systematize and
enforce CEDAW within their domestic systems.34 The strategy behind this “carrot and
stick” approach is that adverse international attention will encourage better compliance
from states eager to create a better reputation as good international citizens – a standing
that will bring greater credibility in the community of nations and boost external relations
when negotiating security and economic issues. CEDAW has no individual petition
process or judicial enforcement mechanisms, so shaming states through international
scrutiny is its only compliance tool.35 The reporting procedure is thus the “raison d’etre
of the Committee’s activities.”36

(b) Problems and constraints

29
Ibid. at 232.
30
Ibid. at 231.
31
CEDAW, supra note 2, at Article 17. In considering the extent of the legislative, judicial, administrative
or other measures that they have adopted to implement the Convention, the CEDAW Committee takes into
account the institutional as well as the cultural capacity of a nation to institute change. Article 21 of the
Convention empowers the Committee to make recommendations based on their examination of reports and
information received from states parties. Suggestions are usually directed at United Nations entities, while
general recommendations are addressed to states parties. The CEDAW Committee is comprised of 23
women’s rights experts from 23 countries. These experts are elected from a list of individuals nominated by
countries party to the Convention, and consideration is given to equitable geographical distribution as well
as to representation of different civilizations and legal systems. The 23 Committee members serve in their
personal capacity, rather than as delegates or representatives of their countries of origin.
32
Ibid., Article 18(1).
33
Ibid., Article 21.
34
U.N. Press Release No. WOM/1251, Women’s Discrimination Committee Continues Consideration of
Egypt’s Report, Jan. 1, 2001, available at: www.un.org/News/Press/docs/2001/wom1251.doc.htm.
35
Afra Afsharipour, Empowering Ourselves: The Role of Women’s NGOs in the Enforcement of the
Women’s Convention, 99 COLUM. L. REV. 129, 140 (1999).
36
Andrew C. 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, 13 (1989); see also, Afsharipour,
supra note 35, at 139 (“the Convention assumes that the major function of CEDAW is to consider States'
reports”).

8
 In theory, regular international attention to state implementation of women’s
human rights ought to produce better state compliance with CEDAW. Initial country
reports are due within one year of a state becoming a party to the Convention and then
every four years, or sooner should the Committee so request.37 The CEDAW Committee
is frequently outspoken in its criticism of nation states. For example, after examining
Egypt’s periodic report, the Committee told Egypt that:

… it was not enough to promulgate laws against domestic violence, rape,

or genital mutilation and then wait for women to report the crime… it was
necessary to help them overcome their fear and go to the police.38

The Committee encouraged Egypt to conduct a survey of the violence occurring

throughout the country, and to provide the necessary reporting processes for victims so
that more women would report their rape.39 In another example, the CEDAW Committee
noted the predominance in Nigeria of cultural stereotypes that are prejudicial to women
and the continued existence of the practices of polygamy, and female genital mutilation.
In relation to Denmark, the Committee urged the government to “penalize all Danish
residents who arrange for female genital mutilation regardless of where it is performed in
order to eliminate this harmful traditional practice;”40 and regarding Yemen’s CEDAW
compliance, the Committee criticized the government for its lack of statistical
information on violence committed within the family and recommended more data
collection.41

However, the reporting system does not work smoothly. For example, Libya’s
second periodic report became due in 1990. It was finally submitted in 1999, but the
Committee has yet to review it, or even to designate the session at which it will be
reviewed.42 Similarly, Belarus’s fourth periodic report became due for submission in
1994. Belarus finally submitted its report in 2002, but the Committee was only scheduled
to review the report at its 30th Session in January 2004. 43 And although the Committee
has had its session times extended in recent years,44 and has also created a pre-session

37
Afsharipour, supra note 35, at 140-41.
38
See Press Release WOM/1251 January 19, 2001 Committee on Elimination of
Discrimination against Women , 493rd Meeting, available at
(http://www.un.org/News/Press/docs/2001/wom1251.doc.htm.
39
See, Ibid.
40
See Report of the Committee on the Elimination of Discrimination against Women, included in Official
Records of the General Assembly, Fifty-seventh Session, Supplement No. 38 (A/57/38), 8 October 2002, at
p.55.
41
See Press Release WOM/1358 August 14, 2002 Committee on Elimination of
Discrimination against Women , 580th and 581st Meetings, available at
(http://www.un.org/News/Press/docs/2002/wom1358.doc.htm).
42
CEDAW Report of the Secretariat, Twenty Ninth Session, May 14, 2003, CEDAW / C / 2003 / II / 4 at
17-18, available at http://www.bayefsky.com/reform/cedaw_c_2003_ii_4.pdf.
43
Ibid. at 18.
44
Convention on the Elimination of All Forms of Discrimination against Women, G.A. Res. 51/68, U.N.
GAOR, 51st Sess., Supp No. 49, at 198, U.N. Doc. A/Res/51/68 (1996) (extending two annual CEDAW
committee sessions of three weeks each).

9
working group that prepares lists of questions to which submitting states can respond in
advance,45 time constraints reduce the Committee’s time available for reviewing each
country’s ongoing reports. 46 The Committee has a massive backlog of reports and finds
it difficult to give timely attention to reports that have been submitted.47 These delays
place additional burdens on reporting states because they are required to update reports
that are out of date.48 As of May 1, 2003, 56 state parties were more than five years late
in submitting either initial or periodic reports,49 and 30 state parties were more than five
years late in submitting even their initial reports.50 Were it not for the failure of many
states parties to submit their reports on time, or to submit reports at all, the Committee’s
workload would be even more crippling.51

(c) Applying CEDAW at the international level

Despite these challenges, CEDAW is raising international awareness of women’s

human rights issues. Not surprisingly, the most controversial work of the CEDAW
Committee has been its recommendations about female sexuality, such the as the 1990
recommendation that female circumcision or female genital cutting (“FGM”) be viewed
as a discriminatory practice against girls and women. At the Fourth World Conference on
Women in Beijing in 1995, the largest conference in the history of the United Nations,
the U.N. called for CEDAW signatory nations to prohibit female genital mutilation
“wherever it exists and [to] give vigorous support to efforts among non-governmental and
community organizations and religious institutions to eliminate such practices” and to
“take urgent action to combat and eliminate violence against women, which is a human

45
Aida Gonzales Martinez, The U.N. and Protection of Human Rights: Human Rights of Women 5 WASH.
U. J. L. & POL’Y 157, 173 (2001).
46
Julie A. Minor, An Analysis of Structural Weaknesses in the Convention on the Elimination of All Forms
of Discrimination Against Women, 24 GA. J. INT'L & COMP. L. 137, 148 (1994). Some scholars have
attached significance to the assignment of such a short time period for review, arguing that it is a reflection
of the priority that state parties have assigned to women’s rights. See, Byrnes, supra note 36, at 59 (“the
notion that a committee overseeing the implementation of the Women's Convention would require
considerably less time than the Racial Committee needed for its work is a reflection of the low priority
assigned to women's rights”).
47
As of the Committee’s most recent (30th) session, held in January 2004, there remained a large backlog of
reports due for consideration, despite an ongoing deficit of reports due but not yet submitted. For most
nations, approximately two years passed between submission and consideration by the Committee. The
issue of the CEDAW Committee’s time delays has been discussed in: Margareth Etienne, Addressing
Gender-Based Violence in an International Context, 18 HARV. WOMEN’S L.J. 139, 149 (1995); Linda
A. Malone, Exercising Environmental Human Rights and Remedies in the United Nations System, 27 WM.
& MARY ENVTL. L. & POL’Y REV. 365, 390 (2002) (arguing that because of the Committee’s time
restraints, the Committee lacks the power of many other U.N. treaty organizations); Felipe Gomez Isa, The
Optional Protocol for the Convention on the Elimination of All Forms of Discrimination Against Women:
Strengthening the Protection Mechanisms of Women's Human Rights 20 ARIZ. J. INT'L & COMP. LAW
291, 304 (2003) (arguing that the two week limitation is insufficient for an examination of the reports, and
is the source of the Committee’s backlog).
48
Afsharipour, supra note 35, at 144-45.
49
CEDAW Report of the Secretariat, Twenty Ninth Session, May 14, 2003, CEDAW / C / 2003 / II / 4 at
13-16, available at http://www.bayefsky.com/reform/cedaw_c_2003_ii_4.pdf.
50
Ibid.
51
Byrnes, supra note 36, at 27.

10
rights violation, resulting from harmful traditional or customary practices, cultural
prejudices and extremism.”52 Then in 1996, the World Health Organization, the U.N.
Children’s Fund (UNICEF) and the U.N. Population Fund also issued a joint statement
regarding harmful practices, calling for the intervention of the international community:

It is unacceptable that the international community remains passive in the

name of a distorted vision of multiculturalism. Human behaviors and
cultural values, however senseless or destructive they may appear from the
personal and cultural standpoint of others, have meaning and fulfill a
function for those who practice them. However, culture is not static but it
is in constant flux, adapting and reforming. People will change their
behavior when they understand the hazards and indignity of harmful
practices and when they realize that it is possible to give up harmful
practices without giving up meaningful aspects of their culture.53

The CEDAW Committee has also explicitly called for the eradication of cultural
practices harmful to women’s health or women’s agency. In 1999, the CEDAW
Committee passed General Recommendation 24, stating that “states parties should
ensure… [t]he enactment and effective enforcement of laws that prohibit female genital
mutilation and marriage of girl children.”54 In 2000, the General Assembly then followed
up with a Resolution that:

Calls upon states… to develop, adopt and implement national legislation,

policies, plans and programmes that prohibit traditional or customary
practices affecting the health of women and girls, including female genital
mutilation, and to prosecute the perpetrators of such practices…55

CEDAW thus provides a language of women’s rights that allows other

international institutions to leverage their influence over states. CEDAW’s sometimes
patchy oversight of women’s human rights is unquestionably better than no international
oversight at all. But the CEDAW Committee’s problems are compounded by a lack of
enforceability mechanisms at the nation-state level. Nation states continue to cite cultural
and religious barriers to CEDAW and there is no co-ordination mechanism at the
international level to assess these reservations, even when there is domestic opposition to
a state’s reservation. Many nation states lack the political will to institute human rights
changes for women, and international institutions are unable to fix this completely.

(C) Applying CEDAW at the national level

1. Cultural difference applications

52
Fourth World Conference on Women (“FWCW”), Beijing Platform for Action, U.N. Doc.
A/CONF.177/20, para. 232(h) and (g) (1995). Reprinted in 35 I.L.M. 409 (1996).
53
See Female Genital Cutting: A Joint WHO/UNICEF/UNFPA Statement, 1996.
54
CEDAW General Recommendation No. 24 (General Comments); Women and Health Committee on the
Elimination of Discrimination Against Women, 20th Sess., art. 12, U.N. Doc. A/54/38/Rev.1 ch. I (1999).
55
See General Assembly, A/RES/54/133 7 February 2000.

11
 International law is a consensual system, which means that individual nation
states decide for themselves how to comply with and enforce CEDAW. There are many
impediments to the institution of universal human rights norms at the level of the nation
state, especially as women’s human rights and gender equality are deeply influenced by
embedded social, cultural and religious values. Especially in some non-western states,
entrenched values and taken-for-granted cultural practices may be at odds with legislation
or policies that seek to implement CEDAW.

Women’s lack of political representation is a key problem. The under-

representation of women in national political processes in many countries means that
decisions about harmful cultural practices are made principally by men. If women are
included in decision-making processes, these are likely to be older women – precisely
those, as the late Stanford political theorist Susan Okin pointed out, who are most likely
to have become acculturated by the status quo and often the strongest advocates of the
continuation of harmful practices, such as early marriage and FGM.56 For example, in
May 2002 it was reported that the 1998 Tanzanian law criminalizing FGM had not
resulted in a single prosecution.57 This law deemed the practice as “cruelty” when
carried out on girl children under 18 years, sanctioning up to 15 years' imprisonment as
punishment plus a hefty fine. Laws like this can only be effective with the active support
of the older and more influential community members. The press reported that:

The few adults who have been tried were acquitted, usually because
daughters were unwilling to testify against their parents. Many
campaigners worry that the law may be forcing FGM underground. In the
Singida region in central Tanzania, people circumvent the law by privately
cutting baby girls when they are a few days old.58

This story has been repeated elsewhere. Sudan passed a law prohibiting FGM in
1946, so that when the World Health Organization in 1979 held the first international
conference on the far-reaching health costs of FGM, it chose Sudan as the “poster child”
nation for using legal prohibitions against FGM. But even though several other African
nations have since introduced similar legislation, these efforts to combat FGM by means
of criminal sanction have largely failed because they do not yet have the widespread
support of community elders. For example, although Egypt banned FGM in 1996, a 2001
USAID Report puts the practice at around 97% of Egypt’s female population of 35
million.59

56
Susan Okin, Reply, in Is Multi-Culturalism Bad for Women? 126 (Joshua Cohen, Matthew Howard, and
Martha C. Nussbaum, eds., 1999).
57
Alakok Mayombo, Emergency FGM Rescue Operation Fails in Tanzania, Arfol News, May 29, 2002,
available at http://www.afrol.com/News2002/tan005_fgm.htm.
58
Ibid.
59
This includes Muslim and non-Muslim women. The Ministry of Health issued a decree banning FGM in
1996, which was upheld by the highest court of appeals in 1997. This ban prohibits medical and non-
medical personnel from performing FGM either publicly or privately. Violation of the ban can result in loss
of medical license and criminal punishment, and if the case involves loss of life, charges of manslaughter.
The press has reported up to thirteen prosecutions of various practitioners, but the State Department holds

12
 Nationally based NGOs have sent out a strong message to the international
community that the failure to eradicate FGM through criminal sanctions stems precisely
from the fact that these sanctions originated from strong international pressure. Other
African countries such as Eritrea have no specific law about FGM, but instead include it
as a topic in their government health and general education programs, which in turn co-
ordinate with NGOs that campaign to discourage FGM. A Burkina Faso NGO
spokesperson notes:

This experience indicates that a successful movement against FGM must

be, and must be seen to be, an African indigenous movement. Africans
must themselves see and understand the ill effects of FGM and believe in
the necessity of its abolition; communities must embrace the change in
tradition, or there will be no change. Instead, practitioners and adherents
of FGM will continue to defy the law, which will drive the practice of
FGM underground, creating an even more dangerous scenario than the
current one. Education is thus a key element of any strategy to stop the
practice of FGM.60

This suggests that international leadership is necessary, but is also inevitably limited in its
effect at the national level. Real change depends upon intellectual ownership by those
who implement the change. Formal legal change is empty unless there is a real desire at
the national level to change the substance as well as the form. When this is lacking,
national human rights reforms are unlikely to change women’s lives.
2. Problems and constraints
The impetus to conform to international human rights obligations has sometimes
produced cynically incomplete institutional responses at national levels. Typically, these
national responses seek to demonstrate a rhetorical level of national commitment to
international human rights. Instead, they demonstrate ambivalence, if not an outright
lack of national political will to achieve international standards.
For example, there have been a host of human rights commissions established
over the 1990s in those African states setting up new democratic structures. They were
conceived as part of political transition, either to a new government or to promises of a
more open political system following a history of repressive or authoritarian single-party
rule.61 In a recent Human Rights Watch report on 20 of these commissions, 11 have been
criticized as being either flawed or ineffective, either because they have been formed by
national governments that have no human rights credibility or because there has been no
follow-through on the Commission’s recommendations. For example, the Benin
Commission has been criticized by Beninois as "lethargic," having "a credibility

that it cannot confirm these reports. See, U.S. Department of State, Egypt: Report on Female Genital
Mutilation, released June 1, 2001, available at http://www.state.gov/g/wi/rls/rep/crfgm/10096.htm.
60
Ele Kowalsky, Between Law and Tradition: The Struggle Against FGM in Senegal, 7 Hum. Rts.
Databank 1 (March 2000), available at http://www.hri.ca/tribune/viewArticle.asp?ID=2544 .
61
Binaifer Nowrojee, Protectors or Pretenders? Government Human Rights Commissions in Africa (2001),
available at http://www.hrw.org/reports/2001/africa.

13
problem," "unknown to the population," and "in paralysis."”62 In Cameroon, the
commission’s credibility and autonomy were “greatly hindered by the strong presidential
control over its appointment and operations.”63 The Tunisia commission “has shown
itself to be nothing more than a mouthpiece to defend government abuses.”64 And
although legislation to establish commissions in Ethiopia, Mali, Niger, and the Central
African Republic has been passed, there has been no action taken so far to actually set
them up.65
This data suggests that many nation states are not highly motivated to give a high
priority to human rights. This means that the prospect for women’s human rights is bleak,
given the low priority of women’s rights relative to other rights is a worldwide
phenomenon, and especially low in the global south. A universal human rights approach
deploying Western legal mechanisms, such as implementing legislation and criminal
sanction, can be problematic. Achieving better human rights for women may require a
more nuanced approach that complements both domestic systems and the international
system.
Part II: Intellectual and Empirical Trends

A. Critique of International Law methods for women

CEDAW can only go part of the way towards providing a solution for women
because the international system of which it is part has some troubling structural
deficiencies. International law and international human rights are framed around two
legal and political concepts – the sovereign state, and the international system of law.
From the earliest days of the international human rights treaties just after World War II,
human rights have sought to produce equality among all people. But the model of the
ideal rights bearer that informs this model is a person that exists much more in the public
world than in the private domestic realm. International law can be criticized for its
disturbingly weak role in conceiving of women as the bearers of human rights.66

1) Women’s Domestic Representation Is Mirrored in International

Representation

Historically, political systems at the state level have seen men in the public realm
and women in the private realm, created patterns of low levels of female political
representation. National power structures all too often exclude women from elite
positions and decision-making roles, virtually ensuring the persistent under-
representation of women’s views. Political power then becomes an expression of a mind-
set of political subordination based on gender.67 Masculine power in national politics

62
Ibid.
63
Ibid.
64
Ibid.
65
Ibid.
66
Hilary Charlesworth, Christine Chinkin, and Shelley Wright, Feminist Approaches to International Law,
85 A.J.I.L. 613, 621 (1991). See also, Fred Halliday, Hidden from International Relations: Women and the
International Arena, 17 Millenium 419, 424 (1988).
67
Charlesworth, Feminist Methods in International Law 93 A.J.I.L. 379, 392 (1999).

14
when enacted in international affairs becomes “muscular” and robust assertions of
national sovereignty.

The international structure reflects structures within nation states, both in its
reproduction of a gendered mind-set, and the consequences this has upon the political
representation of women. International law reproduces gendered national power through
patterning the ideal nation state on the ideal man by, as feminist international law scholar
Hilary Charlesworth puts it, creating “international legal principles of sovereign equality,
political independence, and territorial integrity and the legitimation of force to defend
those attributes.”68 As a consequence, women are often relegated to insignificant and
subordinate roles in global decision-making processes. Women are similarly
underrepresented in international organizations, where the structures mirror those of
states. Even the United Nations, whose achievements are grounded in universal
membership, does not extend equal representation to women.

The result is a structural tilt away from women’s interests at both the national and
the international level. Human rights reflect this. Human rights norms tend to be
structurally biased to produce normative international legal rules that virtually ensure that
women’s concerns are either ignored or trivialized.69 For example, Charlesworth cites
the public/private distinction in human rights law as one way that “international law
factors out the realities of women’s lives, build[ing] its objectivity on a limited base.”70
For Charlesworth, international law is inextricably intertwined with a gendered
perspective, consistently reinforcing a system of male interests and overlooking the
interests of women.

Even gender-neutral human rights treaties and conventions have gendered

consequences because men dominate the public sphere of politics, while women are
associated with the private sphere of family and home.71 For example, international

68
Charlesworth, Chinkin, and Wright, supra note 66, at 622.
69
See Charlesworth, et.al, ibid., at 625 (explaining that international law has drawn various dichotomies
and distinctions that correlate with gender lines, permeating the discipline’s normative rules with gendered
values).
70
Charlesworth, supra note 67 at 382. Other feminists have similarly focused on breaking down the public
/ private divide in international law. See, e.g., Shelley Wright, Economic Rights, Social Justice and the
State: A Feminist Reappraisal, in Reconceiving Reality: Women and International Law 117, 122 (Dorinda
G. Dallmeyer, ed., 1995).
71
Similarly, Charlesworth sees a perpetuation of the same gendered normative dichotomies even where the
international community has made an effort to recognize the importance of women’s rights. For example,
unlike the Geneva Convention, the statutes of the two ad hoc UN War Crimes Tribunals, as well as the ICC
statute, recognize sexual violence as a crime of genocide, a crime against humanity, and a war crime.
However, these categories of international law are concerned only with acts forming part of a systematic
attack. In Charlesworth’s view, “international criminal law engages sexual violence only when it is an
aspect of the destruction of a community.” Charlesworth sees this as yet another exemplar of the gendered
public/private distinction: international law criminalizes rape only when it impacts the “male” public
collective sphere, leaving the private “female” sphere of the individual untouched. From a feminist
perspective, this is problematic not because it leaves certain acts of violence unpunishable, but because it
draws distinctions with reference to an act’s implications for the male-dominated public sphere, rather than
with reference to women’s experiences of the harm of act of rape upon her. These distinctions tend to
reinforce gender inequality because they direct scrutiny away from the domestic realm and toward the

15
agreements such as the Convention against Torture, and the Declaration on the
Elimination of Violence Against Women contemplate a human rights violation only
where “public” (state) actors are involved.72 And although CEDAW tries to rectify the
gender bias in international legal norms, there is still the feeling that the international
commitment to women’s human rights is more a matter of “form over substance”:

[Even the] steps taken to bring women’s human rights into mainstream
UN activities have in most, although not all, instances been limited to
placing women on the agenda, a traditional ‘add women and stir’ approach
that does not demand any radical rethinking of programmes [sic] or
gender-awareness.73

2) Difficulties of global application

CEDAW also faces the challenge of applying its universal standards to a

heterogeneous international community made up of women from 185 nationalities, with
many more cultural, religious, and ethnic groups besides.74 The general and universal
language of international law can be a bad fit for this diversity. As Chandra Mohanty
points out, “women are constituted as women through the complex interaction between
class, culture, religion and other ideological institutions and frameworks. They are not
‘women’ – a coherent group – solely on the basis of a particular economic system or
policy.”75 More recently, as proponents of multiculturalism have increasingly
emphasized the diversity among women, it has become clear that CEDAW’s universal
standards for women’s human rights don’t easily articulate with the normative injunction
of multiculturalism. Universalism and particularism collide. This has both practical and
conceptual consequences for human rights. Conceptually, universal standards and norms
directed at national governments lose their moral force when they conflict with legitimate
claims of cultural expression. States are left struggling with this normative dilemma. Nor
is it clear that national legislation and national courts are the best means by which the
dilemma ought be resolved. More specifically for women’s human rights, the universal
language and concepts give no guidance on how to implement what may amount to a
paradigmatic, or even seismic, shift in cultural practice and social perspective. The more
difference there is between the universal standard for women’s human rights and local

public realm – precisely the structural means by which men have retained their monopoly over the public
realm of politics and economy. See, Charlesworth, ibid., at 387-88.
72
Anne Orford, Contesting Globalization: A Feminist Perspective on the Future of Human Rights, 8
Transnat’l L. & Contemp. Probs 171, 194 (1998).
73
Christine Chinkin, Feminist Interventions into International Law 19 Adel. L. Rev. 13, 26 (1997).
74
Charlesworth, supra note 67, at 383. Often the most important distinction in the monolithic global
grouping of “women” is the distinction between first world feminists and third-world feminists. See,
Charlesworth, Chinkin, and Wright, supra note 66, at 618-621.
75
Charlesworth, ibid, citing Chandra Mohanty, Under Western Eyes: Feminist Scholarship and Colonial
Discourses, Feminist Rev. 74 (1988). See also, Rey Chow, Violence in the Other Country: China as Crisis,
Spectacle, and Woman, in Third World Women and the Politics of Feminism 81, 82 (Chandra Mohanty,
Ann Russo & Lourdes Torres, eds., 1991) (noting that using sex as the single analytical tool may not be
appropriate given that local women are situated within specific economic, racial, and class structures).

16
practice, the higher the likelihood that nation states will seek to avoid the problem
through inaction or disinterest.

It is not clear how, or where, these problems are best resolved. Charlesworth
concedes that “feminist method” does not provide a ready alternative to the traditional
practice of international law because feminist methods emphasize “conversations and
dialogue” rather than the production of a single, triumphant truth.76 The feminist method
is more of a critique of international law’s assertion of generality, objectivity, and
universality.77 Charlesworth presses for international law to undertake a “radical shift in
perspective,”78 and while she does not articulate specific reforms, she reminds us that
reform is needed.79 Taking up Charlesworth’s call, it seems necessary to craft human
rights institutions that exhibit three important qualities: first, they need to be close to
local women’s contexts; second, they need to be independent of nation states; and third,
they must still have the persuasive moral authority to induce recalcitrant states to make
better progress on rights for women.

B. Globalization’s effects upon women

These intellectual and political debates are taking place in new social and
economic contexts. Globalization has created an awareness that economic wealth may
depend upon the creation of new pockets of human rights violations.80 Globalization has
also prompted a new focus on minority identity,81 and with it an examination of how
women have fared in the crosscurrents of new global conditions.82 In some cases, these
conditions lower women’s living standards while raising the economic incentives for
states to ignore their CEDAW obligations. Disturbingly, an analysis of nation states’
implementation of their international treaty obligations under CEDAW suggests a causal
relationship between globalization and gender inequality.83

1) Globalization and economy

76
Charlesworth, supra note 67, at 379.
77
It is difficult to apply feminism to reach any hard “legal” answer, because feminist methods seek to
“expose and question the limited bases of international law’s claim to objectivity and impartiality and insist
on the importance of gender relations as a category of analysis.” Charlesworth, supra note 67, at 379,
citing J. Ann Tickner, You Just Don’t Understand: Troubled Engagements between Feminists and IR
Theorists 41 Int’l Stud. Q. 611, 628 (1997).
78
Charlesworth, supra note 67, at 393.
79
Ibid. at 394. One of Charlesworth’s critics has responded that “we can reconceive international law every
now and then, but not all the time.” See Martti Koksenniemi, Reconceiving Reality: Women and
International Law, 89 A.J.I.L. 227, 230 (1995). For Koksenniemi accepting the basic framework of
international law, flawed as it is, will continue to provide some protection from untrammeled subjectivity
and analysis.
80
See, e.g., Frank J. Garcia, The Universal Declaration of Human Rights at 50 and the Challenge of Global
Markets: Trading Away the Human Rights Principle 25 Brooklyn J. Int’l L. 51 (1999).
81
See, e.g., Marc W. Brown, The Effect of Free Trade, Privatization and Democracy on the Human Rights
Conditions for Minorities in Eastern Europe: A Case Study of the Gypsies in the Czech Republic and
Hungary, 4 Buff. Hum. Rts. L. Rev. 275 (1998).
82
See, e.g., Anthony Taibi, Racial Justice in the Age of the Global Economy: Community Empowerment
and Global Strategy, 44 Duke L.J. 928 (1995).
83
Jose Richard Paul, Cultural Resistance to Global Governance 22 Mich J. Int’l L. 1 (2000).

17
 In many countries, the macroeconomic reforms accompanying globalization have
had the effect of shrinking the public sector and cutting government services. These
changes frequently have a disproportionate effect on women who labor in the “invisible
sector outside the market,”84 which means that women are bearing a disproportionate
burden of the costs of economic liberalization.85 Because employment offered by new
foreign trans-national corporations is often “precarious”, globalization has led to higher
levels of female unemployment and an increase in casual and part-time work.86
International investors requiring unskilled to semi-skilled labor hire women “in the ‘soft’
industries of apparel, shoe- and toy-making, data-processing, and semi-conductor
assembling-industries.”87 Worryingly, there is an upward trend of slavery -- women are
being sold in human trafficking as economic reforms render their families unable to
support them.88 Even putting aside the question of slavery, women comprise the largest
segment of migrant labor flows, a workforce demographic that is usually without state
protection.89 In some parts of the world, the effects of this economic dislocation has
inspired women to engage in organized economic resistance, fighting to preserve their
traditional ways of life from the WTO agenda of trade and economic liberalization.90
Paradoxically, this slows progress on CEDAW reforms on issues such as education for
girls, early marriage, and cultural practices that are harmful to women’s health, because
women’s political energies are diverted from the gender equalities in their own cultures
while they pitch their arguments against transnational corporations.

In fact, when legal scholar Jose Paul examined “cultural” derogations across three
different types of international treaties, he found that nation states felt far freer to ignore
women’s rights than other types of rights.91 Paul’s study of free trade treaties and
agreements, environmental treaties and agreements, and women’s human rights, showed
that only women’s rights and gender equality are perceived by the international

84
Women have been described as the “shock absorbers” of economic programs imposed by the IMF or
World Bank, as they are the first to face the loss of employment when the public sector fires workers or
when the workforce is casualized. See Orford, supra note 72, at 172. See also, Johanna E. Bond,
International Intersectionality: A Theoretical and Pragmatic Exploration of Women’s International Human
Rights Violations 52 Emory L.J. 71, 127 (“Women at the intersection of race, gender, and class oppression
have felt the impact of [IMF and World Bank] policies more dramatically than their privileged
counterparts”). Women usually pick up the slack in caring for the sick, homeless, or mentally ill family
members when the state abdicates these duties pursuant to economic reforms attributable to globalization.
Bharati Sadasivam, The Impact of Structural Adjustment on Women: A Governance and Human Rights
Agenda 19 Hum. Rts. Q. 630 (1997).
85
Orford, supra note 72, at 172.
86
Ibid., at 179, citing Kristi Justine Guest, Exploitation Under Erasure: Economic, Social and Cultural
Rights Engage Economic Globalizations 19 Adel. L. Rev. 73, 111 (1993).
87
Riham el-Lakany, WTO Trades off Women's Rights for Bigger Profits, 12 WOMEN'S ENV'T & DEV.
ORG. 1, 32 (1999).
88
Martina Vandenberg, Markets and Women’s International Human Rights 25 Brooklyn J. Int’l L. 141,
148 and 150-1 (1999).
89
Dinah Shelton, Protecting Human Rights in a Globalized World 25 B.C. Int'l & Comp. L. Rev. 273, 296
(2002).
90
Orford, supra note 72, at 179, citing Julie Stephens, Running Interference: An Interview with Gayatri
Chakravorty Spivak, 7 Austl. Women's Book Rev. 19, 20 (1995).
91
Paul, supra note 83, at 52.

18
community as a legitimate subject under which states may enter a “cultural” objection to
international obligations. Cultural exceptions to GATT and the international norm of free
trade are not permitted as they are perceived as necessary for globalization.92 Similarly,
international environmental norms are seen to trump cultural objections because they
preserve natural resources for the future economy.93 Whereas derogations from
environmental or free trade agreements are perceived as seriously jeopardizing economic
growth, low women’s wages for unskilled work are seen as a necessary casualty of
economic activity. In many countries, the project of wage equality for women has stalled
so that economic expansion can proceed.

2) Globalization producing gender conservatism

Paul’s analysis of gender inequality and globalization also demonstrates a more

subtle, and arguably more insidious, effect of globalization: a backlash of ideological
gender conservatism against gender equality. Globalization challenges a nation’s
sovereignty by requiring the state to cede control over its national economy to the forces
of the international market and international institutions.94 This loss of control produces
a form of “cultural anxiety” that takes legal effect through gendered exceptions to treaty
obligations, buried under the rubric of national protection of culture.95 In other words,
states permit each other to depart from gender equality norms so as to discharge political
pressures against global forces:

The cultural exception is an escape valve from the internal political

pressure of globalization. The international community recognizes
cultural exceptions only to the extent that they relieve displaced anxiety to
globalization without obstructing globalization. When states regulate
women…states are reaffirming their sovereignty through social controls
without hindering the forward movement of globalization. In these
circumstances, the international community defers to the ‘cultural
exception.96

Globalization appears to set up deep anxieties in nation states about the rate of
economic change, but this anxiety gets channeled as anxiety about gender equality.97
Women are then pressured to conform to hyper-traditional roles to compensate for the
social and cultural dislocation resulting from globalization. 98 Not only do
globalization’s economic burdens fall disproportionately on women, but because

92
Ibid. at 54.
93
Ibid. at 76.
94
Ibid. at 74, citing William Grieder, One World, Ready or Not 227-58 (1997).
95
Paul, supra note 83, at 76.
96
Ibid. at 77.
97
Ibid.
98
Ibid. at 76, citing Uma Narayan, Dislocating Cultures: Identities, Traditions, and Third-World Feminism
17-27 (1997) (describing how the conflict between modernization and third world nationalism is often
framed as a conflict to protect traditional womanhood from Western colonizing culture).

19
women’s human rights rank below economic growth, burden is kept on women’s
shoulders.

To summarize, there are difficulties in CEDAW’s application, both at the national

and the international level. On one hand, the nation state can express outright opposition
or simply exhibit a failure of nerve when it comes to women’s human rights. At the
international level CEDAW’s enforcement mechanisms can be cumbersome and patchy.
And now, the advent of globalization has placed additional pressures on women. The
scheme of nation states administering international human rights agreements under the U.
N. umbrella was devised for the world before globalization, when sovereign borders
better contained the movement of both people and capital. Current participants in the
global economy care far too little about its adverse affects upon women. Women’s human
rights under the conditions of globalization need an institutional supplement to the
current national/international dyad.

In the following section I make the argument that enlarged and strengthened
regional systems should fill this role, particularly for women’s human rights. I use the
new legal innovation of hybrid criminal courts as an example of an emerging awareness
of the drawbacks of the national/international dyad. I give some examples of the
regionally influenced nature of particular human rights issues for women and then map
out the institutional and normative advantages of an enlarged regional human rights
sector. I suggest that regional courts, like the new hybrid criminal courts, can help to
build better national compliance with international human rights standards. Regional
courts can offer for all human rights the general advantages of legitimacy, of capacity
building, and norm penetration.

More particularly in relation to women’s human rights, regional human rights

courts can be a key location for the development of a women’s jurisprudence, particularly
where nation states are over-using the “culture” defense. Regional human rights
institutions could complement purely international and purely local remedies through
their alignment to local conditions, while also keeping the goals of international standards
in their sights. For CEDAW and other international women’s human rights standards,
this will continue pressure on states to increase women’s political participation and to
create legal and policy measures that accurately reflect women’s interests.

Part III: The regional supplement

(A) Institutional models for expanded regional systems

Regional courts form an intermediate tier between national legal systems and the
international legal system. They are part of a relatively recent phenomenon of legal
institutions guided by international law while also accommodating geographic political
and cultural sensibilities. A new legal institution has emerged in recent years that
arbitrages between national legal systems and the international legal system in the form
of hybrid criminal courts in places like Kosovo, Sierra Leone and East Timor. These new
hybrid legal institutions are a good analogy for regional courts and commissions.

20
Comprised of national and international judges and applying a mix of national and
international law and procedure, hybrid courts exemplify the benefits of a legal institution
that intercedes between the nation state and the international system. Although fraught
with teething problems, the creation of these new legal institutions grows out of a new
awareness that, on sensitive issues, neither the nation state’s legal system, nor the
international legal system, gets it quite right. Adjudication needs to be closer to the locus
of human conflict than The Hague, but the nation state alone may not provide the answer.

1) Hybrid courts

The Kosovo War and Ethnic Crimes Court was established in June 1999 with the
passage of the U.N. Security Council resolution setting up the United Nations Mission in
Kosovo (UNMIK). Deployed in courts throughout Kosovo and comprised of over three
hundred international and local judges, the court has jurisdiction over cases of war
crimes, other serious violations of international humanitarian law, and serious ethnically
motivated crimes.99 The East Timor Court was established in 2000 at the direction of the
United Nations Transitional Authority for East Timor (UNTAET). The court sits in Dili
and is comprised of two panels, each including one East Timorese and two international
judges. The East Timor Court has jurisdiction to hear matters of genocide, crimes against
humanity, war crimes and torture, and applies a combination of international and
Indonesian law.100 The Special Court for Sierra Leone was set up jointly by the
government of Sierra Leone and the U.N. to try serious violations of international
humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone
since November 1996. The Special Court has issued indictments against just a handful of
individuals so far, charged with war crimes, crimes against humanity, and other serious
violations of international humanitarian law. To date, the Kosovo and East Timor courts
have had mixed success, and the Sierra Leone court is too new for any hard analysis. But
as new and experimental legal forms, these hybrid institutions are worth examination.
They are examples of negotiated jurisdiction -- trying to take the best aspects of both
international and domestic jurisdiction and merge them into an institutional that sits
outside traditional jurisdictional categories.

The Kosovo courts were created primarily to relieve the ICTY of the burdens of
trying lesser offenders, and they exercise concurrent jurisdiction with their “parent”
tribunal.101 By June 2002, there had been eighteen trials, some of multiple defendants,
99
Laura Dickinson, Symposium: The ICTY at Ten: A Critical Assessment of the Major Rulings of the
International Criminal Tribunal Over the Past Decade: The Relationship Between Hybrid Courts and
International Courts: The Case of Kosovo, 37 New Eng. L. Rev. 1059, 1062 (2003). See also, Wendy S.
Betts, Scott N. Carlson, & Gregory Gisvold, The Post-Conflict Transitional Administration of Kosovo and
the Lessons Learned in Efforts to Establish a Judiciary and the Rule of Law, 22 Mich. J. Int'l L. 371, 381
(2001).
100
See Judicial System Monitoring Program, Justice in Practice: Human Rights in Court Administration 2
(2001), available at http://www.jsmp.minihub.org/Reports/JSMP1.pdf . It is too soon to evaluate the Sierra
Leone Court.
101
Initially, the court was designed such that local judges comprised a majority of the trial panels and
indeed, some trials were held in front of panels comprised only of Kosovar Albanian judges. Following
civil unrest in the Mitrovica region, UNMIK 2000/64 was passed, and subsequent cases have been heard in
front of majority international panels. The original instruction that applicable law was to be that of the

21
resulting in fourteen guilty verdicts.102 However, the court has been dogged by problems
of judicial partiality and inexperience. The East Timor court has likewise had
difficulties: it has been “hampered by lack of funding, inexperienced personnel, and
vacancies in key positions… the appellate panel currently cannot function because too
few judges have been hired, and the trial courts have also been forced to suspend
proceedings periodically because of lack of personnel.”103 Despite these obstacles, nearly
twenty trials had taken place, resulting in the conviction of twenty-three defendants.104

Conceptually, the Kosovo and the East Timor hybrid courts are an experiment:
they move beyond the traditional paradigm of law that the domestic/international model
represents. They have been in place long enough now to observe their advantages and
their drawbacks.105 The evidence so far suggests that hybrid courts are not alternatives to
either international or local justice, but rather a complement to both.106 Rather, they
suggest that particular advantages can flow from new institutional arrangements that
arbitrage between the nation state and international system. This model also illustrates
some disadvantages that could be avoided with good institutional design.

(a) Advantages

(i) Proximity begets legitimacy

Too much distance between people and the courts hearing their legal conflicts can
create problems. Situating courts closer to local actors, even as observers, can build legal
legitimacy of the court. For example, in a study on the operation of the ICTY sitting in
The Hague, it was revealed that Bosnians did not see themselves as equal partners in the
reconstruction efforts in their own states – both in the legal and political realms. Instead,
the international process was seen as “… promulgating a foreign system of law [leading
to a local perception] that the international community [was] imposing foreign values
upon them...”107 Hybrid courts instead have the advantage of proximity. While this on
its own will not necessarily produce legitimacy because local courts can be captive to

Federal Republic of Yugoslavia (Serbian law) was replaced with the directive to apply the law in force in
Kosovo prior to March 22, 1989. See, Organization for Security and Cooperation in Europe (OSCE),
Kosovo’s War Crimes Trials: A Review 10 (2002), available at
http://www.osce.org/kosovo/documents/reports/human_rights/10_WarCrimesReport_eng.pdf. See also,
Dickinson, supra note 99, at 1063.
102
See, OSCE Report, ibid., at 54.
103
See Laura Dickinson, Note and Comment: The Promise of Hybrid Courts, 97 A.J.I.L. 295, 298 (2003),
citing Richard Dicker, Mike Jendrzejczyk & Joanna Weschler, East Timor: Special Panels for Serious
Crimes, Human Rights Watch, Aug, 6, 2002, available at http://www.hrw.org/press/2002/08/etimor-
ltr0806.htm.
104
See David Cohen, Seeking Justice on the Cheap: Is the East Timor Tribunal Really a Model for the
Future? ASIA PACIFIC ISSUES, at 2-3, available at,
http://www.eastwestcenter.org//stored/pdfs/api061.pdf.
105
See Dickinson, supra note 99, at 1059.
106
Ibid. at 1060.
107
See The Human Rights Center and the International Human Rights Law Clinic, University of California,
Berkeley, and The Center for Human Rights, University of Sarajevo, Justice, Accountability, and Social
Reconstruction: An Interview Study of Bosnian Judges and Prosecutors 18 Berkeley J. Int'l L. 102, 127-36
(2000).

22
local political forces, appointing some international judges to sit with local judges can
ameliorate this. In Kosovo, for example:

The appointment of international judges to the local courts in these

highly sensitive cases may also have helped to enhance the
perception of the independence of the judiciary and therefore its
legitimacy within a broad cross-section of the local population. In
Kosovo this was most apparent, as the previous attempts at
domestic justice had failed to win any support among Serbs.108

Relative to the U.N. CEDAW Committee, regional institutions have the advantage of
proximity to national sensibilities, yet at the same time, regional judges and
administrators are less subject to the vagaries of national politics. This provides a good
recipe for the legitimacy and credibility of regional courts and commissions.

(ii) Technical and cultural expertise

Placing international legal and administrative personnel side-by-side with local

personnel can provide a template for better legal performance at the local level. The new
hybrid criminal courts provide:

…side-by-side working arrangements [that] allow for on-the-job

training that is likely to be more effective than abstract classroom
discussions of formal legal rules and principles … the teamwork
can allow for sharing of experiences and knowledge in both
directions.109

A court that combines personnel from different legal systems does more than simply
provide comparative instruction on formal and administrative matters. It also provides an
opportunity for cultural learning across jurisdictions. This crosscutting cultural effect has
already been predicted in the operation of the ICTR and the Sierra Leone hybrid court.
According to observers, the indictment before Senegalese courts of the former head of
state of Chad, Hissein Habre (though later dismissed) was one of the fruits of the ICTR's
“Africanization of accountability.”110

The hybrid courts are giving international actors the opportunity to gain greater
sensitivity to local issues, local culture, and local approaches to justice. At the same
time, local actors can learn law and procedures from skilled international actors. The
layered jurisdictions of hybrid courts are bring together different cultures, different
problems and different solutions. They ease the performance pressure on domestic courts
and provide an opportunity for framing legal innovations. Regional institutions similarly

108
Dickinson, supra note 103, at 308-09.
109
Dickinson, ibid., at 307. Dickinson cites to Joel C. Beauvais, Note, Benevolent Despotism: A Critique of
U.N. State-Building in East Timor, 33 N.Y.U. J. Int'l L. & Pol. 1101, 1157-59 (2001).
110
Payam Akhavam, Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities? 95
A.J.I.L. 7, 26-27 (2001).

23
offer opportunities for cultural learning, with the additional advantage that regional
judges and administrators are learning of aspects of shared culture within the geographic
region. A shared colonial history, for example, gives a shared understanding from which
regional courts can interpret and apply international human rights norms.

(b) Drawbacks

(i) Legitimacy

One of the drawbacks of hybrid courts is that their very proximity can trigger
political flashpoints and local sensitivities. In East Timor, for example, some local actors
involved in the criminal justice process criticized the East Timor hybrid court because
they allege that international actors were controlling the process, which “smacks of
imperialism.”111 The experience in Kosovo has demonstrated that distributing power
among various ethnic and political parties may lead to problems of over-correction, such
as when large numbers of Serbs were appointed to serve on the bench of the Kosovo
court with the intention of diluting ethic tensions. Instead, the legitimacy of the Court
was tainted.112 Institutional legitimacy can clearly suffer when people from outside the
local system become involved in adjudication and there is speculation about distribution
of power. This is most likely when “outsiders” are jurisdictionally distant. The regional
courts could largely sidestep this problem. They already have the advantage of greater
jurisdictional proximity to states than international courts. At the same time, regional
courts can garner the legitimacy benefits through distancing themselves from national
political pressures.

(ii) Lack of resources

The biggest problem facing the new hybrid courts has been a lack of resources.
This can lead to erroneous results, as when the Kosovo court’s lack of resources led to
the court’s failure to cite relevant cases of the ICTY. Only two trial court verdicts so far
make any reference at all to war crimes case law.113 Of course, lack of resources is a
perennial problem and is not unique to hybrid courts, but applies also to national and
international courts.

111
Dickinson, supra note 103, at 306, citing Suzannah Linton, Rising from the Ashes: The Creation of a
Viable Criminal Justice System in East Timor, 25 MELB. U. L. REV. 122, 150 (2001).
112
Dickinson, supra note 99, at 1066.
113
Dickinson notes in relation to Kosovo that “… the argument that this network will result in the better
use and richer development of norms (and of domestic ones) assumes that the foreign judges will be experts
in the jurisprudence of the international tribunals, an assumption that has not been borne out in the Kosovo
case, where the hybrid courts often have failed even to cite relevant cases from the ICTY.” Dickinson,
supra note 103, at 307. In Trajkovic, the international judge cited in passing the ICTY Tadic decision on
the definition of the customary international law offence of crimes against humanity. However, this judge
erred in finding that crimes against humanity (an offence under customary international law and hence a
violation of the ICTY statute) is a separate and distinct offence from war crimes under FRY CC 142. The
Jovanovic/Kolasinac decision is the only example among the trial verdicts under review of adequate
reliance on case law and other authorities. Its author cites a variety of judicial and scholarly sources,
including, among others, case law of the ICTY and ICTR, commentaries on the FRY criminal code, and a
text on crimes against humanity. See, OSCE Report, supra note 101, at 47.

24
 The only corrective for this is a genuine and ongoing financial commitment, and it
may be here that the hybrid courts could suffer “double trouble”. On one hand, their
regional location places them a long way from their “parent” international bodies and
thus heightens their need to account for their jurisprudential output under international
human rights standards. On the other hand, the hybrids’ geographic proximity to their
local constituency could lead to resentful comparisons of the hybrid’s resources relative
to domestic legal resources, such as between Rwanda and the ICTR. Although prison
conditions for those awaiting trial at the ICTR are appalling, and although the ICTR
bureaucracy has been criticized for its delays and its ineptitude, it is much better
resourced than Rwandan jails and courts. Despite having tried approximately 7,331
persons in Rwanda by the end of 2002, an estimated 110,000 individuals remain in
custody awaiting trial on charges of genocide. Prison conditions are life threatening and
disease is rampant, but the government lacks the resources to expedite processing.
Gacaca courts, a form of traditional justice, were created in order to aid the process, and a
pre-Gacaca project was instituted in which prisoners were taken to their villages and
villagers were allowed to decide if further reason to detain them existed. However, less
than 10 percent of the accused have been released in this manner.114 Comparatively, the
ICTR has completed 18 cases, there are 22 detainees still on trial, nine awaiting appeal,
and 22 awaiting trial. Sixteen indictees remain at large.115

The Rawandan case is not directly analogous to regional because Rwanda is a

purely domestic jurisdiction and the ICTR is a purely international jurisdiction, but it
illustrates a point that is possibly also relevant to regional courts. In all of the regional
systems there are large disparities between resource allocations to different domestic
legal systems. For example, Poland has fewer financial resources than France to expend
on human rights enforcement. This suggests that a regional funding formula for shared
human rights institutions may need to reflect differential domestic levels of economic
capacity. It points to the need for careful planning and allocation of resources across
domestic jurisdictions. Regional courts will not render justice if either regional
processes or regional jurisprudence are hugely dissimilar to the trends of the domestic
jurisdictions within the region.

(c) Lessons learned

There are important lessons for regional courts to be learned from the hybrid
tribunals. First, as a matter of sheer quantity, forum sharing can allow for a better
distribution of workload. Qualitatively, it permits a strategic allocation of cases. This is
exemplified by the distribution of cases between the international and hybrid courts:
international courts take the most symbolic high-profile cases that are likely to form
international law precedent and the domestic courts handle less complex, lower profile
cases. Second, the hybrids allow for skill distribution between jurisdictions,
progressively leading to an increased supply of trained personnel. This can in turn

114
See, U.S. Dep’t of State, Country Reports on Human Rights Practice for 2002, available at
http://www.state.gov/g/drl/rls/hrrpt/2002/18221.htm.
115
See www.ictr.org.

25
promote heightened institutional legitimacy, elevating perceptions of the competence and
independence of the judiciary. Finally, hybrid courts demonstrate that new institutional
arrangements need not supplant national domestic legal systems, but can instead act as an
important supplement when the national systems either function poorly or are imperiled.
They neither remove the national nor the international systems, but instead provide an
escape valve for domestic systems. At the same time, they retain the safety net of
international norms. More compelling still, as legal scholar Laura Dickinson notes: “…
hybrid courts can ground [their work] more squarely within local legal and popular
culture.”116

Like the hybrid courts, regional courts are likewise geographically placed to have
good knowledge of national political, economic and social issues. Regional courts are not
captive to national political systems, so unlike the human rights commissions established
in many African states, they are not part of a national showcase intended solely to send
an empty message to the international community. This increases the likelihood that they
can really grapple with complexities of national political will as well as national capacity
to institute legal and social reform. More particularly for women’s human rights, the
geographic proximity of regional courts to cultural sensibilities means that there can be a
nuanced understanding of regional and gender politics. As the FGM issue starkly
demonstrates, gender issues are difficult. Taken together, these factors make a case for
institutional intercession between national systems and the international system for
women’s human rights.

(B) Current Regional Framework

There is as yet no body of international case law for women’s human rights under the
CEDAW treaty. The principal judicial organ of the U.N. with jurisdiction to hear treaty
disputes between nation states is the International Court of Justice (ICJ),117 but it has not
yet heard a case under CEDAW.118 Rather than the ICJ, the paradigmatic human rights
court is the European Court of Human Rights (ECHR),119 which since the demise of
communism and the explosive growth of member states of the Council of Europe has

116
See Dickinson, supra note 103, at 308.
117
It is the UN’s primary judicial body, with universal scope and membership. See U.N. Charter art. 7 and
92; see also, Statute of the International Court of Justice, art. 1. One-Hundred-Eighty-Seven States are
party to the ICJ’s statute. Often referred to as the “World Court,” it is composed of 15 independent judges
elected by the UNGA and UNSC, no two of which can be from the same country. The members are
independent magistrates, not representatives of their governments, and have always included the five
permanent members of the UNSC. Its purposes are to resolve legal disputes that states submit to it and to
issue advisory opinions on legal questions from certain international organs and agencies Third party
information is possible in theory, as is amicus curiae, but in practice both have been extremely rare.
118
Because the ICJ only hears a case when the states involved have accepted its jurisdiction, much of its
work to date has been boundary disputes between states, and related issues of territory. This, combined
with its erratic jurisprudence, the specialization of international law that has led to specialized legal fora,
and the growth of regionalism, has led over the last two decades to an increase in the number of
international and regional judicial bodies hearing human rights claims.
119
The ECHR was established by the 1950 European Convention for the Protection of Human Rights and
Fundamental Freedoms, concluded under the aegis of the Council of Europe. See European Convention for
the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 221.

26
developed extensive human rights jurisprudence.120 Two other regional court systems
exist, those of the Inter-American system and the African Union, each incorporating a
sub-set of institutions with human rights jurisdiction. In what follows, I outline the
regional bodies that exercise human rights jurisdiction, assessing them particularly from
the point of view of women’s human rights concerns.

The regional human rights structures frame their jurisdiction under the rubric of
international human rights conventions, but each region has its own region-specific
human rights instruments. Women’s non-governmental organizations have likewise
tended to organize regionally under the auspices of international bodies, and play an
important role in funneling information between national and international bodies. For
example, in preparation for the “Beijing-plus-5” conference in 2000, women’s groups
organized themselves along regional lines. Coordinated by the U.N. Development
Program, an International NGO Committee was formed, along with a global information
network aimed at improving women’s worldwide access to participation in the
Conference and utilizing already-existing regional networks.121 In other words,
geography creates networks among people that do not respect national boundaries.

Notwithstanding each region’s reference to the U.N.’s Universal Declaration of

Human Rights, the regional human rights instruments exhibit important regional
differences. 122 Because Europe was the site for most of the human rights atrocities of the
Second World War, Europeans felt compelled to press for human rights guarantees as
part of reconstruction efforts.123 Western European traditions of democracy, the rule of
law, and ideas of individual rights fostered a belief that a European regional system could
contribute to the avoidance of future conflict on the Continent, while also curbing
revolutionary Communist sentiments.124 The Americas’ history of regional approaches to
international affairs and human rights stems from the regional solidarity that developed
during movements for independence from colonial Spain. It adopted the American

120
It has jurisdiction over the largest number of states (40), encompassing all of Europe, including Russia.
After the ECJ, it has decided the largest number of cases (837 judgments as of January 1, 2000), developing
the most extensive human rights protection jurisprudence. See Louis E. Wolcher, The Paradox of
Remedies: The Case of International Human Rights Law 38 Colum. J. Transnat’l L.J. 515, 521 (2000).
121
The initiative sought to disseminate and obtain information and input from women throughout the world
and included such organizations as the IWTC, the APC Women’s Networking Support Program, the APC
Women’s Program in Africa, Isis-Wicce/Kampala, Isis-International/Santiago, Isis International/Manila,
ALAI-Ecuador, the Asian Women’s Resource Exchange, the International Archives for the Women’s
Movement/The Netherlands, and the Women’s Feature Service/New Delhi. United Nations Development
Program, Women 2000: Gender Equality, Development and Peace for the 21st Century, available at
www.sdnp.undp.org/gender/beijing5/ngo_info.html
122
Shelton, supra note 89, at 366, citing, European Convention, (providing that the “like-minded”
governments of Europe, “considering the Universal Declaration of Human Rights” have resolved to “take
the first steps for the collective enforcement of certain rights stated in the Universal Declaration”);
American Convention (indicating the Convention’s origin in the Universal Declaration of Human Rights);
African Charter (pledging to promote international cooperation “having due regard to the Charter of the
United Nations and the Universal Declaration of Human Rights).
123
Shelton, ibid., at 354.
124
Shelton, ibid., at 354, citing J.G. Merrils, The Council of Europe: The European Convention on Human
Rights, in An Introduction to the International Protection of Human Rights 221 (Raija Hanski & Markky
Suksi eds., 1997).

27
Declaration on the Rights and Duties of Man some months before the United Nations
completed the Universal Declaration of Human Rights.125 But whereas the European
system is particularly concerned with civil rights, especially due process, the history of
military coups in Central and South America has led to a strong focus in the Inter-
American system on the corrections to militia terror: democracy, restrictions on arbitrary
exercises of discretionary executive powers and restrictions on military and police
powers.126

African systems, on the other hand, grew out of claims to self-determination that
were framed as part of the human rights agenda as African nations emerged from colonial
rule and battled for national cohesion.127 The anti-apartheid movement within South
Africa also contributed to broader regional human rights efforts.128 Africa’s struggle to
regain indigenous sovereignty after its colonial past is also reflected in the emphasis in its
key human rights documents on political autonomy.129 A former president of the African
Commission locates a concern for human dignity within African culture, which has
influenced the African human rights system.130 Africa’s human rights treaties reflect this
shared history in their inclusion of “people’s rights”, and their embrace of economic,
social, and cultural rights to a greater extent than either the European or American
conventions.131 In addition to the duties of the state towards the citizen, African human
rights documents emphasize the duties of the citizen towards her community. Unlike the
individualistic west, a human rights violation under the African human rights instrument
entails a consideration of group interests.

Each region also has specific human rights concerns in relation to gender
inequality. For example, women’s non-government organizations in Europe have been
able to organize around issues of political representation because of their better economic
and social status relative to many South American and African states.132 More recently,
the skyrocketing incidence of trafficking of women and girls since the demise of the
former Soviet Union and the phenomenon of open borders has led to a renewed sense of

125
Shelton, supra note 89, at 353-54, citing Thomas Buergenthal & Dinah Shelton, Protecting Human
Rights in the Americas 37-44 (4th ed. 1995). In addition, the drafting history of the American Convention
shows that the states involved utilitized the UDHR in deciding on the convention’s guarantees and
institutional structure. Shelton, ibid., at 366, citing Conferencia Especializada Interamericana Sobre
Derechose Humanos, San Jose, Costa Rica, 7-22 Noviembre 1969, Actas & Documentos,
OEA/Ser.K/XVI/1.2 (1973).
126
Shelton, supra note 89, at 368.
127
Ibid., at 354.
128
Ibid.
129
See Preamble and Article 20 of African Charter on Human and Peoples’ Rights. Concluded at Banjul,
June 26, 1981. Entered into force, Oct. 21, 1986. OAU Doc. CAB/LEG/67/3 Rev. 5. Reprinted in 21 I.L.M.
59 (1982).
130
Shelton, supra note 89, at 354-55, citing Isaac Nguema, L’Afrique, Les Droits de l’homme et Le
Developpement 1 Rev. Comm. Af. Dhp. 16, 26 (1991).
131
Shelton, supra note 89, at 361.
132
EU member states have an average of 25% women in parliament, and 31% of EU officials and 25% of
European Commissioners are women. In the EU private sector, only 9.3% women are in top management
positions in the telecommunication industry; 8% of all members of Board of directors of Banks are women
(not in leading posts); 5% are women in the Executive Management Committees; 8% women are Directors
of divisions of banks. European Women’s Lobby Report (http://www.womenlobby.org/htmldoc/wdm.htm)

28
collective human rights concerns among European women’s non-government
organizations.133 In Latin America, on the other hand, the constraints upon sexual and
reproductive freedom imposed by the dominance of Roman Catholicism means that a key
concern of women’s organizations in that region is women's reproductive rights and
violence against women.134

The frightening plight of African women’s incidence of sexual disease and sexual
violence virtually defines the work of African women’s NGOs. HIV/AIDS for African
women is worse than for African men, with 12-13 African women infected for every 10
African men and 55% of adult infections in sub-Saharan Africa occurring in women.135
FGM is a secondary regional phenomenon that increases the risk of contracting
HIV/AIDS through the use of infected instruments. Similarly, the staggering high rate of
African domestic violence increases the risk of contracting HIV/AIDS.136 Rape and
sexual assault, especially in South Africa,137 and abduction and sexual violence in
African states in, or recovering from, civil war.138

Each region, therefore, has a distinctive “character” that marks it out from other
regions, but also from the international system and domestic systems. Women’s human
rights organizations reflect the human rights issues of their constituencies, and these
concerns tend to be shared along regional lines.

1) The European human rights system

Together with the European Commission of Human Rights, the ECHR supervises
the observance of rights and freedoms contained in the European Convention for the
Protection of Human Rights and Fundamental Freedoms. It has become one of the
largest and most accomplished regional judicial bodies, aided by a strongly shared feeling
among participant states for the rule of law and their relative cultural homogeneity.139 In
1994, individuals were given access to the ECHR without an external filter.140 The
ECHR survived a major overhaul in 1998, demonstrating its vitality and importance
133
See “Trafficking in Human Beings in Southeastern Europe”, UNICEF, 2002, available at
http://europa.eu.int/comm/justice_home/news/information_dossiers/conference_trafficking/video/img/com
mun/rapport%20see%20human%20trafficking.pdf .
134
See Corene T. Kendrick, The Illegality of Abortion in Mexico, 39 Stan. J Int'l L. 125, 136 (2003).
135
See World Health Organization, Fact Sheet No. 242 (2000), available at
www.who.int/mediacentre/factsheets/fs242/en .
136
See Human Rights Watch Report, “Policy Paralysis:
A Call for Action on HIV/AIDS-Related Human Rights Abuses Against Women and Girls in Africa”,
December 2003, available at www.hrw.org/reports/2003/africa1203 .
137
The highest rate of reported rape worldwide is found in South Africa, where the reported rapes of
52,000 yearly is estimated to only reflect one in every 36 actual incidents of rape.
138
For example, an estimated 2,700 young girls who were abducted in Sierra Leone following last year's
invasion of Freetown were forced to become "rebel wives," serving as sexual and domestic slaves for the
RUF. In Liberia, one-third of internally displaced women (about 168,000) were estimated to be victims of
rape during the Liberian war.
139
Rudolth Bernhardt, Commentary: The European System, 2 Conn. J. Int'l L 299, 299-300 (1997).
140
See Council of Europe, Protocol No. 11 to the European Convention on Human Rights, Art. 34, Doc.
H(94)5 (1994), reprinted in 33 ILM 943 (1994). The Court now has 800 million potential claimants. It
also set up a single permanent Court instead of the existing two-tier system of a Court and a Commission.

29
within the region. It has the largest international bench, including the most women
judges, both proportionally and absolutely, of any international bench, although European
women, like women worldwide, continue to serve on judicial benches, yet are still
significantly outnumbered by men.141

Europe’s jurisprudence reveals a mixed record of influence over domestic courts

in relation to women’s human rights. Numerous applicants have sought to apply
European Community law to their domestic matters, but both the Irish and European
courts have managed to sidestep substantive issues.142 For example, Irish courts have
gone out of their way to ground Irish abortion cases in domestic law, with the Irish Court
finding that “[n]o decision on any question of European law is… necessary to enable the
court to give its judgment.” 143 On the other hand, the spread of European norms seems
inexorable. A good example is the U.K. Human Rights Act that came into force in
October 2000, and which provides for regional influence upon, and harmonization with,
its domestic laws.144 The U.K. Act was modeled on the European Convention on Human
Rights and requires the domestic U.K. courts to construe their law (both statutory and
common law) as compatible with European norms and in light of public international
law. It does not empower courts to strike down domestic law, but only to render a
"declaration of incompatibility".145 In this way, although the jurisprudence currently
binds the actions of Member states only partially, the European Convention may become
unequivocally binding on national courts and legislatures, albeit in a roundabout way.

At the same time, when cases have reached the European Court of Human Rights,
the Court has been able to consider gendered harms against individual women because

141
Example ratios are: 14:1 at the International Court of Justice, 11:7 at the International Criminal Court,
and 24:13 at the European Court of Human Rights. See http://www.pict-pcti.org .
142
See Bryan Mercurio, Abortion in Ireland: An Analysis of the Legal Transformation Resulting from
Membership in the European Union 11 Tul. J. Int’l & Comp. L. 141, 154-56 (2003) (discussing SPUC v.
Open Door, 14 Eur. H.R. Rep. 131, 135-38 (1991), wherein the European Commission “decided the case
solely on the freedom of expression claim” before referring it to the Court). Mercurio also discusses SPUC
v. Grogan, 1991 E.C.R. I-4685, 4733, where “the ECJ went out of its way to avoid deciding the substantive
issues of the case.”
143
In Attorney General v. X and Others, [1992] 12 I.L.R.M.414 (Ir. S.C.) the case involved a fourteen-year-
old rape victim who had become pregnant and had sought, with the help of her parents, to travel to England
to obtain an abortion. After the parent contacted the police to inquire whether some fetal tissue should be
preserved as DNA evidence for the ongoing rape investigation, the Attorney General responded by
obtaining an injunction preventing the girl from traveling outside the country for a period of nine months.
The family responded by presenting the girl’s apparent risk of suicide, as was evident to several witnesses
after hearing suicidal remarks made by the girl. The Supreme Court held that abortion is permitted within
Ireland when “it is established as a matter of probability that there is a real and substantial risk to the life, as
distinct from the health, of the mother which can only be avoided by the termination of her pregnancy.”
Because the abortion was permissible in Ireland, it was also permissible for the girl to travel abroad to
obtain one.
144
See, Human Rights Act, 1998, c. 42 (Eng.). See also, Clive Walker & Russell L. Weaver, The United
Kingdom Bill of Rights 1998: The Modernisation of Rights in the Old World, 33 U. Mich. J.L. Reform 497,
540-41 (2001).
145
Gerrit Betlem and Andre Nollkaemper, Giving Effect to Public International Law and European
Community Law before Domestic Courts: A Comparative Analysis of the Practice of Consistent
Interpretation 14 Eur. J. Int’l L. 569, 584 (2003).

30
the ECHR is not hampered by the ICJ’s jurisdictional constraints.146 The ECHR’s
jurisdictional capacity to scrutinize individualized harm has allowed it to take the first
steps in crafting women’s jurisprudence. For example, in Jabari v. Turkey in 2000, the
Court effectively protected an Iranian woman from torture when it intervened to prevent
Turkey from deporting her back to Iran. Iran’s patriarchal system would have allowed
her to be prosecuted for adultery and punished by death by stoning or by being whipped
or flogged.147 Turkey was held to have had a right to protect her against cruel and
inhumane treatment under Article 3 of the European Convention on Human Rights
(ECHR). Furthermore, the Court found that Turkey’s deportation mechanism did not
provide an effective legal remedy and therefore was in violation of Article 13 ECHR.148

Similarly, in Abdulaziz, Cabales, and Balkandi v. The United Kingdom, the Court
found discrimination on the basis of sex for the applicants under Articles 8 of the
European Convention in conjunction with Articles 13 and 14, holding that “national
immigration controls must be exercised in accordance with the European Convention on
Human Rights.”149 The applicants, three lawful permanent residents of the U.K., sought
permission for their husbands to join them as non-nationals in the U.K. The British
government denied their request on the basis of immigration rules restricting the rights of
husbands to join only wives with permanent U.K. residency. No such restriction applied
to the wives of U.K. resident men. The women sought relief under Article 3 (degrading
treatment), Article 8 (violation of the right to respect for family life), Article 13 (right to
effective legal remedy for complaint), and Article 14 (discrimination with regard to race
and gender). In a more recent example, the Court found in Wessels Bergervoet v. The
Netherlands that disparate treatment of men and women under social security schemes in
the Netherlands constituted discrimination on the basis of gender and marital status, a
violation of Article 14 ECHR. The government of the Netherlands had reduced a
woman’s social security payments on the sole basis of her marital status. The ECHR
found that the disparate treatment of men and women under social security schemes
constituted discrimination on the basis of gender and marital status, a violation of Article
14 ECHR.150

Each of these cases has allowed the ECHR to apply a uniquely European
interpretation of human rights standards to nation states of the European Council.
Context matters; the ECHR is slowly building a European jurisprudence that describes
European values for the European context. At the same time, European jurisprudence also

146
See Statute of the International Court of Justice, art. 36, which states that the jurisdiction of the ICJ
depends on referrals by the states parties and encompasses those matters specifically referenced in the U.N.
Charter. States parties may accept compulsory jurisdiction “in all legal disputes concerning… the
interpretation of a treaty; any question of international law; the existence of any fact which, if established,
would constitute a breach of an international obligation; [and] the nature of extent of the reparation to be
made for the breach of an international obligation.”
147
Jabari v. Turkey, No. 40035/98 (Eur. Ct. H.R. July 11, 2000), available at http://www.echr.coe.int
148
Ibid.
149
Abdulaziz, Cabales and Balkandali v. United Kingdom, 94 Eur. Ct. H.R. (ser. A), (1985) available at
http://www.womenslinkworldwide.org/co_reg_echr_abdulaziz.html.
150
Wessels-Bergervoet v. Netherlands, App. 34462/97, Eur. Ct. H.R. (2002), available at
http://www.echr.coe.int.

31
shapes the domestic law of European states. While currently the European courts lack
authority to annul national legislation inconsistent with EC law,151 Article 6 of the
European Treaty152 provides that the ECHR forms part of the principles of EC law.153
National courts may also ask the European Court of Justice for preliminary rulings on
European law. If national courts do this, they must then apply the ECJ ruling, even if it
means annulling national legislation.154 Moreover, if the draft European Constitution
becomes a reality,155 the European-ization of values is likely to accelerate. The time may
come when ultimate authority over domestic European legislation passes to the central
European court system with the consequence that the more expansive concept of
citizenship embodied in the 2000 European Charter of Fundamental Rights will become
binding on domestic jurisdictions.156 This raises the probability that women’s human
rights will be a subject for the European courts. Given the religious and ethnic diversity
of the ten new European states,157 the ECHR could be a decisive influence in the see-
sawing between universal women’s human rights standards on the one hand, and respect
for cultural diversity on the other.

2) The Inter-American system

The Organization of American States (OAS) dates from 1948 and now comprises
thirty-five member states.158 The two primary human rights bodies of the OAS are the
151
Instead, it can find an infringement and if the state then fails to comply, a penalty may be imposed.
Additionally, the EC Treaty empowers the jurisdiction of the European Court of Justice and CFI in Article
220 to rule on EU institutions and organs and Member states when implementing EU law, and in so doing,
they may rely on general principles of EU law. Walter Van Gerven, A Government Ruled by Law
(unpublished manuscript, on file with author).
152
Art 6(2) reads, “The Union shall respect fundamental rights, as guaranteed by the European Convention
for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and
as they result from the constitutional traditions common to the Member States, as general principles of
Community law.” Treaty on European Union, Feb. 1, 1992, 31 I.L.M. 247 (1992).
153
See Van Gerven, supra note 151, at 19.
154
See ibid., at 11.
155
The Draft Treaty establishing a Constitution for Europe that was submitted to the Italian presidency of
the Council of the European Union in July 2003 is currently being discussed by representatives of member
state governments at the Intergovernmental Conference, which will continue in 2004 under the Irish
presidency. After the final version is adopted by the IGC, the Constitution must then be ratified by both the
15 current member states, as well as the 10 future member states. . There is some question whether Britain
will ratify the draft Constitution since British Prime Minister Tony Blair announced the intention to hold a
referendum on the Constitution. Although a date has not yet been named, this is unlikely to occur before
the next general election. See BBC News, http://news.bbc.co.uk/2/hi/uk_news/politics/3640949.stm. The
full text of the Draft Constitution is available at
http://europa.eu.int/futurum/constitution/table/index_en.htm .
156
Article I-7(2) of the proposed European Constitution states that the Union “shall seek accession to the
European Human Rights Convention.” Praesidium of the European Convention, Draft Text of the Treaty
Establishing the Constituiton, CONV 724/03, May 26, 2003, available at,
http://register.consilium.eu.int/pdf/en/03/cv00/cv00724en03.pdf.
157
On May 10, 2004, the following states became European Union countries: Bulgaria, Cyprus, Czech
Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Romania, Slovakia, Slovenia, and Turkey.
158
The Organization of American States encompasses both a General Assembly, which convenes annually
and establishes major policies, and a Permanent Council, made up of permanent ambassadors to the
Organization, who handle political and administrative issues. The OAS has enumerated several key goals:
strengthening democracy, advancing human rights, promoting peace and security, expanding trade, and

32
Inter-American Court of Human Rights (the Court) and the Inter-American Commission
on Human Rights (IACHR). Together, the Court and the Commission hear violations of
the rights set out in the 1969 American Convention on Human Rights. The Commission
also monitors member states’ general human rights situations and receives petitions from
individuals who claim their human rights have been violated.159 If the country involved
has accepted the Inter-American Court’s compulsory jurisdiction, the Commission may
submit a case to the Court for a final binding decision. The Court is grounded in the
Inter-American Convention on Human Rights and the American Declaration on the
Rights and Duties of Man and has both adjudicatory160 and advisory161 jurisdiction, but
only the Commission and the states parties to the Convention are empowered to submit
cases under its adjudicatory jurisdiction. The Inter-American Commission seems to be
growing in credibility.162

Key provisions of the American Declaration on the Rights and Duties of Man
include Article 5 which protects the right to privacy and family life; Article 7 which
guarantees protection of mothers and children; Article 9 which safeguards the
inviolability of the home; and Article 30 which enumerates the duty to aid, support,

combating the problems posed by poverty, drugs, and corruption. As a means to these ends, the OAS has
also delineated several specific mandates: to strengthen freedom of speech and thought as a basic human
right, to promote greater involvement by civil society in all levels of decision-making, to improve
cooperation in efforts to combat the drug trade, and to work toward the creation of a free trade area in the
Americas. See Organization of American States, available at http://www.oas.org. See also, Organization of
American States, Apr. 30, 1948, 2 U.S.T. 2394.
159
If the state in question is party to the Convention, the Commission measures alleged violations of human
rights as defined by the Convention; if not, the Commission uses the American Declaration on the Rights
and Duties of Man as the basis for its opinions. Therefore, even a non-party to the Convention is still
subject to its jurisdiction.
160
See, Inter-American Convention on Human Rights, Nov. 22, 1969, arts. 48-50, 1144 U.N.T.S. 123. This
can only occur after procedures before the Commission have been exhausted, and a case against a State
Party can only be brought before the Court if the State recognizes the jurisdiction of the Court. An
individual seeking a binding decision against a member state can only get one by filing a petition with the
Commission, which must decide to submit the case to the Court. This can only happen if the State has
accepted the Court’s compulsory jurisdiction.
161
See, Inter-American Convention on Human Rights, ibid., art. 64. This advisory power enables any
member state of the Organization, as well as certain organs of the OAS, to consult the Court on the
interpretation of the Convention or of other treaties regarding human rights protection in the American
states. At a member state’s request, the Court can also issue its opinion on the compatibility of any of its
domestic laws with these international instruments.
162
In 1999, the Guatemalan government passed the Law for Dignity and Integral Promotion of Women.
This law promotes access to health care services for women, training in reproductive technologies for
health care professionals, representation of marriage and marital property by both sexes. It also repeals the
right of husbands to object to women working outside the home. See, Center for Reproductive Law and
Policy, Progress Report 2000, available at http://www.crlp.org/pdf/wowlac_pr00_guatemala.pdf.
Guatemala on the other hand has not complied with the Commissions recommendation for reform of
legislation that refers asymmetrically “to the duty of the husband to protect and assist his wife within the
marriage” and that excludes women from guardianship responsibilities. See, Maria Eugenia Morales de
Sierra v. Guatemala, Case 11.625, Inter-Am. C.H.R. OEA/ser.L/V/II. 95 doc.7 rev., at paras. 81-82. See
also, Richard J. Wilson & Jan Perlin, The Inter-American Human Rights System: Activities from Late 2000
Through October 2002, 18 AM. U. INT’L L. REV. 651, 708-12.

33
educate, and protect minor children, and to honor, support, aid, and protect parents.163
Essential components of the American Convention on Human Rights include Article 6,
which prohibits the trafficking of women, and Article 11(2), prohibiting “arbitrary and
abusive interference with private life… family… home”. Article 17(2) defers the
requirements of marriage to domestic law, as long as this does not result in
discrimination, Article 17(3) requires the mutual consent of both parties to conclude a
marriage, and Article 17(4) requires state parties to ensure equal distribution of rights and
responsibilities of marriage, while Article 24 guarantees the right to equal protection for
all persons before the law.

The Inter-American Convention on the Prevention, Punishment, and Eradication

of Violence Against Women164 does not cite CEDAW, but does cite the 1994 U.N.
Declaration on the Elimination of Violence Against Women.165 The Inter-American
Women’s Convention is more specific about certain women’s human rights violations
that the international women’s instruments. For instance, Article 3 clearly designates a
woman’s right to be free from violence in both public and private spheres. Not only does
the Inter-American instrument tend to be more specific in its delineation of rights, it also
has more specific descriptions of the steps states should take in order to implement the
Convention.166 But unlike the European system, the Inter-American Court of Human
Rights has not developed an extensive human rights jurisprudence, much less a corpus of
women’s human rights jurisprudence. This is because the massive scale of civil and
political human rights abuses among the South American states with histories of military
authoritarianism has only left the court with enough time to focus on questions of fact
and proof, rather than the fine details of the underlying rights.167 And because the
IACHR has not yet had the opportunity to articulate a finely detailed vision of its human
rights jurisprudence, it often relies on the case law of the ECHR.168

Despite these constraints, there has been some consideration of both CEDAW and
the Inter-American Convention on the Prevention, Punishment, and Eradication of
Violence Against Women in the Commission’s recent work. For example, when in 1983

163
American Declaration of the Rights and Duties of Man, signed May 2, 1948, OAS Official Records,
OEA/Ser.L./V/II.23, doc. 21, rev. 6 (English 1979) . While the Convention on Rights and Duties of Man is
not a “treaty” per se, it is generally agreed that the Protocol of Buenos Aires, which amended the OAS
Charter, changed the legal status of the Declaration to an instrument binds OAS member states under the
Charter of the Organization. See, Thomas Buergenthal, The Advisory Practice of the Inter-American Court
of Human Rights 79 A.J.I.L. 1, 7 (1985).
164
Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against
Women, Mar. 5, 1995, 35 I.L.M. 1534 (1994) [hereinafter, Belem do Para Convention], available at
http://www.oas.org/cim/English/Convention%20Violence%20Against%20Women.htm.
165
Declaration on the Elimination of Violence Against Women, G.A. Res. 48/104, U.N. GAOR, 48th Sess.,
art. 2, U.N. Doc. A/RES/48/104 (1994), reprinted in 33 I.L.M. 1049 (1994).
166
Compare, Belem Do Para Convention, supra note 164, at art. 4 (delineating ten specific and detailed
rights included in the guarantee of women’s rights) and art. 6 (explaining in detail the meaning and content
of a woman’s right to be free from violence ) with Declaration on Violence, supra note 165, at art. 3 and 4.
167
Shelton, supra note 89, at 377.
168
See, e.g., Advisory Opinion OC-5/85 of November 13, 1985, Compulsory Membership in an
Association Prescribed by Law for the Practice of Journalism, Series A, No. 5 (1986); Sunday Times v.
UK, 30 Eur. Ct. H. R. (ser. A) (1979).

34
Maria Da Penha Maia Fernandes was shot and paralyzed during a murder attempt by her
then-husband, following extensive domestic abuse, she claimed that Brazil had condoned
the violence and violated various international agreements.169 She successfully pursued
her case in the Inter-American Commission for Human Rights, which found violations
under the Articles of the American Convention, as well as Articles 3, 4(a)-(g), and 7 of
the Inter-American Convention on the Prevention, Punishment, and Eradication of
Violence Against Women. This obliges states to:

… guarantee the rights of women to be free from violence in both the

public and private sphere [and to] the recognition, enjoyment, exercise and
protection of all human rights and freedoms embodied in regional and
international human rights instruments… [and to] condemn all forms of
violence against women and to agree to pursue, by all appropriate means
and without delay, policies to prevent, punish, and eradicate such violence
through the adoption of various measures enumerated in the Articles.170

Although Brazil did not participate in the Commission’s process or specifically

respond to the allegations, there are signs that the role of the Inter-American Commission
has created a new awareness of gender inequality in the region. The new Brazilian
government that took power in January 2003 may use the Commission’s
recommendations to guide national reforms in line with CEDAW.171 Recent press
reports have lauded Brazil’s attitude towards improving its compliance with the
convention. 172

Encouragingly, some state and municipal governments have made progress on

domestic violence as a result of the publicity from the case before the Commission. The
Commission’s actions have helped to draw the attention of the international human rights
community as well as brought international pressure to bear against Brazil and its
policies. Similarly incremental progress can be seen in a case from Peru. The Inter-
169
Maria Da Penha Maia Fernandes v. Brazil, Case 12.051, Report No. 54/01, OEA/Ser.L/V/II.111 Doc.
20 rev. at 704 (2000), available at http://www.cidh.oas.org/annualrep/2000eng/ChapterIII/Merits/Bvrazil
12.051.htm. She claimed violation of: Articles 1(1) (obligation to protect rights), 8 (fair trial), 24, and 25
(judicial remedy) of the American Convention; Articles 3, 4(a)-(g), 5 and 7 of the Inter-American
Convention on the Prevention, Punishment, and Eradication of Violence Against Women, and articles of
the American Declaration of the Rights and Duties of Man. See also Wilson & Perlin, supra note 162, at
713.
170
Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women,
supra note 164. The Inter-American Commission also found violations of Article II (right to equality) and
Article XVII (right to civil rights and recognition of juridical personality) of the American Declaration of
the Rights and Duties of Man, supra note 163.
171
U.N. Press Release WOM/ 1407, Government’s Commitment to All of Brazil’s Women Affirmed
Before Anti-Discrimination Committee: Committee Urges Brazil to Uphold Pledge for Women’s Equality
(July 7, 2003), at http://www.un.org/News/Press/docs/2003/wom1407.doc.htm (“the delegation of Brazil
outlined measures being taken to bring the country’s legislation in line with the Convention on the
Elimination of All Forms of Discrimination against Women; overcome negative stereotypes; improve the
situation of rural women; eliminate inequality in the labor market; and develop a national machinery for the
advancement of women”).
172
See, Brazil's Attitude Towards Improving Situation of Its Women Praiseworthy, Anti-Discrimination
Committee Says, M2 Presswire, July 2, 2003.

35
American Commission found that the Peruvian government was vicariously responsible
for the rape of Marina Machaca, an indigenous woman, by a doctor in the country's
public health care system. The government did not dispute the Commission’s finding and
did not take the matter to trial before the Inter-American Court but instead agreed to a
settlement with the victim.173

The Inter-American Court is also influencing national policy and legislation about
women’s human rights. Guatemala has complied with many of the Inter-American
Court’s recommendations by implementing legislative reform in the form set out by the
Commission. In 1999, following the Court’s decision in Maria Eugenia Morales de
Sierra v. Guatemala the Guatemalan government passed the Law for Dignity and Integral
Promotion of Women.174 This law promotes access to health care services for women,
training in reproductive technologies for health care professionals, representation of
marriage and marital property by both sexes. It also repeals the right of husbands to
object to women working outside the home.

3) The African Union system

The new machinery of the African states, the African Union (the AU) was
launched at the Durban Summit in 2002, taking over from the Organization of African
Unity (OAU). This signals the entry, albeit slowly, of Africa as a mature group of
nation-states with shared economic, social and strategic interests that go beyond the
OAU’s initial concerns of expunging colonization and apartheid. Part of the objectives of
the AU are to “encourag[e] international cooperation, taking due account of the Charter
of the United Nations and the Universal Declaration of Human Rights” and to promote
and protect human and peoples' rights “in accordance with the African Charter on Human
and Peoples' Rights and other relevant human rights instruments."175 The new AU
recognizes that women in Africa are routinely more disadvantaged than men and has
established the Women, Gender and Development Directorate to advise on the special
needs of Africa’s women.176 The Directorate has an ambitious program of women’s
empowerment programs on topics such as education, health, trade and the economy,
peace processes, and women in politics, all which are intended to enable African women
to compete equally with men.

173
See Press Release, Center for Reproductive Rights, “Women's Human Rights Groups Win Major
Victory for Women of Peru and Latin America”, available at http://www.crlp.org/pr_00_0314peruset.html.
174
See, Center for Reproductive Law and Policy, supra note 162. Guatemala on the other hand has not complied with
the Commissions recommendation for reform of legislation that refers asymmetrically “to the duty of the husband to
protect and assist his wife within the marriage” and that excludes women from guardianship responsibilities. See,
Maria Eugenia Morales de Sierra v. Guatemala, Case 11.625, Inter-Am. C.H.R. OEA/ser.L/V/II. 95 doc.7
rev., at paras. 81-82. See also, Wilson & Perlin, supra note 162, at 708-12.
175
African Union, African Union in a Nutshell, available at http://www.africa-
union.org/About_AU/Abau_in_a_nutshell.htm.
176
African Union, Women, Gender, and Development Directorate, available at http://www.africa-
union.org/Structure_of_the_Commission/depWOMEN, GENDER AND DEVELOPMENT.htm

36
 The African Charter on Human and Peoples’ Rights is the key human rights
document. It provides for basic civil and political rights, as well as social, economic, and
cultural rights, without any internal hierarchy of rights.177 It requires individuals as well
as states to respect these rights, and entrenches the interdependence of human rights. The
African Commission on Human and Peoples’ Rights based in Banjul, Gambia, was
established in 1987 with the intent of promoting and protecting these rights.178 Although
individuals can file communications directly with the Commission, the decision process
is slow and secretive, its jurisdiction is not compulsory, and its enforcement powers are
only advisory. To date, it has not been particularly effective, especially for the nuanced
issues of economic, social and cultural rights.

The Charter provides for a variety of basic civil, political, social, economic, and
cultural rights, but the only specific reference to women lies in Article 18(3), which
obligates nation states to conform to international women’s human rights instruments.179
If a woman’s rights under the Charter are violated she has standing to file a
communication with the Commission as long as she can demonstrate that she has
exhausted all of her available domestic remedies.180 Although the African Commission
on Human Rights has yet to decide any cases directly upon gendered harms, it drafted a
Protocol in 1996 concerning the rights of women and has appointed a Special Rapporteur
on the Rights of Women in Africa. This rapporteur is commissioned to work towards
implementation of CEDAW at the nation state level, in collaboration with national and
international NGOs and to make recommendations to the Commission.181

The Protocol for the Establishment of an African Court on Human and Peoples'
Rights entered into force in January 2004.182 The Court is expected to begin operations
in July 2004 when its judges are selected at the AU General Assembly. Reinforcing the

177
For example, rights to race, ethnic group, color, sex, language, religious or political opinion, national
and social origin, fortune, birth, or any other status. See, African Charter on Human and Peoples’ Rights
(Banjul Charter), June 27, 1981, Doc. OAU/CAB/LEG/67/3/Rev.5, 21 I.L.M. 59 (1982).
178
The Assembly of Heads of State and Government of the Organization of African Unity elect the
Commission’s eleven members. See, Ebow Bondzie-Simpson, A Critique of the African Charter on
Human and Peoples’ Rights 31 How. L.J. 643, 650 (1988).
179
See, African Charter, supra note 177, at Article 18(3) (“the State shall ensure the elimination of every
discrimination against women and also ensure the protection of the rights of the woman and the child as
stipulated in international declarations and conventions”). Most of the charter’s provisions do not single
women out for protection. Article 15, for example, simply provides that “every individual shall have the
right to work under equitable and satisfactory conditions, and shall receive equal pay for equal work.”
Article 17 provides all individuals with the right to education; and Article 22 provides for the general right
to economic, social, and cultural freedom.
180
There are, however, some exceptions to this rule where the gravity of the human rights situation, or the
quantity of people affected make local remedies practically infeasible or “unduly prolonged.” See, African
Charter, supra note 177, at arts. 50 and 56(5).
181
See, Udeme Essien, The African Commission on Human and Peoples’ Rights: Eleven Years After 6
Buff. Hum. Rts. L. Rev 93, 100 (2000).
182
Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court
on Human and Peoples' Rights, June 9, 1998, OAU Doc. OAU/LEG/EXP/AFCHPR/PROT(III). Full text
available at 9 Afr. J. Int'l & Comp. L. 953 (1997). See also, Press Release, Amnesty International, African
Union: Entry into Force of the Protocol Establishing an African Court on Human and People’s Rights (Jan.
22, 2004), available at http://web.amnesty.org/library/index/engafr010042004.

37
African Commission and the African Charter,183 the Court has jurisdiction to hear cases
of human rights violations referred from the African Commission.184 Twenty-eight of the
possible fifty-three AU states have signed the Protocol.185 Unlike the Commission, the
Court will have binding jurisdiction over states that are parties, and can also offer
advisory opinions on "any legal matter relating to the Charter or any other relevant
human rights instruments."186 Article 7 specifies that the "charter and any other relevant
human rights instruments ratified by the States concerned" will govern the decisions of
the Court. Both non-governmental organizations and individuals can bring cases directly
to the Court if they have the permission of the involved party state.

The new African Court on Human and Peoples’ Rights has the potential to
develop women’s human rights that uniquely respond to the immense human rights
challenges on the African continent. Just as the Supreme Court of South Africa has
signaled a role for African values by its endorsement of “Ubuntu” a Zulu word meaning
“a person is a person through other persons,”187 so the African court has the opportunity
to interpret CEDAW’s international obligations in ways that will develop the protection
of women's rights in the African context. The Court will need to be responsive to gender
dynamics, and also to national, political, and economic reform capacity. At the same
time the Court will need to insist on inexorable human rights progress while also
cementing its legitimacy with African states. In the following, I will suggest how
regional human rights systems could be further developed, and how that system could
include a stronger role for women’s human rights.

(C) Regional court development: rational and recommendations

1) Rationale

Raising the standard of women’s human rights everywhere depends crucially

upon both the national and international components of the legal system. Virtually all
day-to-day interactions between women and their worlds depend, at some fundamental
level, upon their most accessible point of contact with national governments. There can
be no effective human rights reform without legislation, policy, and political will at the
national level. But nation states are frequently the worst guardians of human rights.
Local judicial systems are overburdened. Too often, local administrators and even local

183
Article 2 of the Protocol notes that the African Court shall "complement the protective mandate of the
African Commission on Human and Peoples' Rights conferred upon it by the African Charter on Human
and Peoples' Rights."
184
See, African Protocol, supra note 182, at art. 5(1). See also, Vincent O. Orlu Nmehielle, Towards an
African Court of Human Rights: Structuring and the Court 6 Ann. Surv. Int'l & Comp. L. 27, 47 (2000).
185
As of January 23, 2004, states that have signed, but have yet to ratify the Protocol include Benin,
Botswana, Central African Republic, Congo, Democratic Republic of Congo, Egypt, Equatorial Guinea,
Ethiopia, Gabon, Ghana, Guinea-Bissau, Guinea, Kenya, Liberia, Madagascar, Malawi, Mozambique,
Mauritania, Namibia, Niger, Seychelles, Sierra Leone, Sudan, Tanzania, Tunisia, Zambia, and Zimbabwe.
See, http://www.africa-
union.org/Official_documents/Treaties_%20Conventions_%20Protocols/List/Protocol%20on%20the%20A
frican%20Court%20on%20Human%20and%20Peoples%20Rights.pdf..
186
See, African Protocol, supra note 182, at art. 4(1).
187
See, Yvonne Mokgoro, Ubuntu and the Law in South Africa 4 Buff. Hum. Rts. L. Rev. 15, 19 (1998).

38
judges and prosecutors are reluctant to intercede or adjudicate on matters of local
controversy. Absent external pressures, women’s human rights are the least likely to be
the focus of many domestic legal and policy systems. The international system is also
crucial as a leader in articulating reform, yet also has some serious drawbacks.
International human rights committees and tribunals can only provide partial solutions:
their processes can be cumbersome, and they can lack relevance because of their location
and because they are staffed by foreigners and run by the U.N. administration. Regional
courts sit between the nation state and the international system and can provide solutions
to both international and national shortcomings.

2) What regional courts provide

Regional systems offer both practical and normative advantages, many of them
similar to the advantages of hybrid courts identified by Dickinson.188 Practically, by
operating at a more local level than that of an international tribunal, regional courts are in
a better position to promote local capacity and train local actors in necessary skills.189
The regional system can provide opportunities for local actors for on-the-job training and
knowledge sharing within the context of the politics and capacities across the region.190
At the same time, regional institutions need not be as constrained by the domestic
political constituencies that sometimes constrain national human rights bodies, because
regional bodies are more detached from specific political allegiances within nation states.
Regional human rights institutions may be better situated than international human rights
institutions to resolve tensions between local cultural practices and international treaty
standards. Regional courts have more direct access to local legal culture and popular
sentiments, and can better appreciate on-the-ground conditions and local peoples’
responses to human rights issues. Regional institutions are closer to cultural traditions
that are shared across nation states. They can have an understanding of cultural
arguments in favor of practices that violate human rights standards, and also make it clear
that superceding a cultural practice with an international standard is not judgment on a
culture in toto.

For example in relation to the practice of FGM, petitioners coming before the
African Court will have their own knowledge of the pervasiveness of the practice and the
cultural reasons for the practice. But unlike the institutional CEDAW Committee, the
African Court can have cultural legitimacy: it cannot be charged with being captive to
Western feminist thinking, or at the very least, not as captive as U.N. bodies. A good
decision from the African Court on FGM would have two outcomes: first, it would affirm
the culture of the group or nation before it, legitimating culture per se. At the same time,
it would disaggregate the culture per se from one particular incidence of the culture –
FGM. Crucially, it would make it clear that practicing FGM on women and girls does
not negate that culture. Rather, that each culture has many markers of its own
distinctiveness relative to other cultures and that replacing one harmful practice with a
new standard does not negate the culture as a whole.

188
Dickinson, supra note 99 and supra note 103.
189
Dickinson, supra note 99, at 1068.
190
Ibid., at 1070.

39
 Regional courts can utilize their heteredox institutional status, using their distance
and their proximity from both the nation state and the international system. Regional
courts can garner the normative advantage of international standards, isolated from
internecine political power struggles at the state level. This gives international human
rights standards an aura of impartiality when administered by regional courts which can
help regional courts build a reputation for independence, away from the overweaning
power of any one state within the regional system. And having regional judges and
tribunals administer international principles helps to defuse the suspicion that
international human rights are simply the modern version of old-style colonialism.191

On the other hand, the regional human rights instruments applied by regional
courts have their own regional lineage. They are the product of like-minded regional
states with similar social histories and overlapping cultural traditions. Armed with a
better knowledge of the practical human rights capacity of individual nation states within
the region, regional courts can make better judgments about the necessity of affording
“wriggle room” for cultural exceptions to universal women’s rights standards. And
because regional courts can apply both regional and international jurisprudence, cross-
fertilization effects will develop a body of women’s human rights jurisprudence that
tackles the problems of applying universal standards to differing cultural contexts.
Juxtaposing local and regional understanding with international human rights standards
will produce a more intense mediation between local and international human rights
standards: the creation of a women’s human rights jurisprudence uniquely shaped to a
region’s particular human rights problems.

3) Specific Recommendations

(i) Regional Protocols on the Rights of Women

Each region needs its own Protocol to Woman’s Human Rights that specifically
addresses the special needs of the region’s women. While such instruments alone are no
guarantee that nations will observe women’s human rights, they are an important rallying
point for women’s non-governmental organizations and they provide a specialized
framework for the regional courts’ jurisdiction. For example, the Inter-American system
has introduced such instruments from its earliest days, from the Inter-American
Convention on the Nationality of Women, entered into force Aug. 29, 1934, to the Inter-
American Convention on the Granting of Civil Rights to Women, entered into force
March 17, 1949,192 to the Inter-American Convention on the Prevention, Punishment, and
Eradication of Violence Against Women that entered into force in 1995. Likewise, the
Protocol to the African Charter setting out women’s human rights gives specific attention
to practices of gender discrimination, harmful cultural practices, and issues around

191
Ibid., at 1067-9.
192
The Inter-American Convention on the Granting of Political Rights of Women entered into force on the
same date.

40
marriage, divorce, and motherhood.193 These documents give women a language in
which to frame their claims to their government, or to their village, or to their family.

Each region’s Human Rights Commission and Human Rights Court must ensure
it has commissioners and judges with expertise on women’s issues. In addition, a
specialist Committee on Women’s Human Rights should have the task of assessing each
country within the region, reporting upon state capacity and will to institute women’s
rights. Such a committee should assess each country’s reservations to CEDAW and
make recommendations for the timing of their withdrawal. Finally, the regional
Women’s Protocol committee ought periodically compile a regional report that explicitly
assesses the region’s human rights progress for women, against both the international and
the other regional systems. In this way, the aspirational connection to international
benchmarks will continue to exert upwards pressure, while regional cultural realities
frame the application of those benchmarks upon nation states by the regional bodies.

(ii) An Asia-Pacific Human Rights Commission and Court

The Asia-Pacific region is singular absence in the scheme of regional human

rights institutions is the. The “Asian Tigers” have a patchy record when it comes to
human rights guarantees. In the Bangkok Declaration of 1993, Singapore, Malaysia,
Indonesia and China asserted that Asian cultures give human rights a different meaning
than do those in the individualistic west. 194 Asian values, they argued, place the group
over the individual, place harmony and consensus over adversariness and debate, and
deference to authority over individual self-expression and freedom. This attitude has
affected compliance with CEDAW. For example, Malaysia has entered reservations to
CEDAW based upon religious and constitutional grounds, and a Malyasian report for
consideration by the CEDAW Committee was due in 1996 but it has yet to be
submitted.195

The Bangkok Declaration was crafted at the height of the Asian economic boom
when the argument that human rights had to wait their turn while developing countries
caught up to the West seemed, while not desirable, at least plausible. In fact, it obscured
the real stumbling block to a regional human rights system in Asia-Pacific: that
international human rights standards are an affront to national sovereignty. Given their
colonial pasts, this attitude is unlikely to disappear overnight in Asia, but there are signs,
albeit faint, of a mood change. For example, in 1996 the Asia-Pacific Forum of National
Human Rights Institutions was formed with representative human rights commissions

193
See Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa,
adopted by the Second Ordinary Session of the Assembly of the Union, Maputo, 11 July 2003. In
particular, with regard to discrimination, see Articles 2, 8, and 9; with regard to cultural practices, see
Articles 2 and 5; and with regard to marriage, divorce, and motherhood, see Articles 6, 7, 13, 14, 20, and
21.
194
Report of the Regional Meeting for Asia of the World Conference on Human Rights, World Conference
on Human Rights, U.N. GAOR, at 293-95, U.N. Doc. A/Conf.157/ASRM/8 -- A/CONF.157/PC/59, signed
April 1, 1993.
195
Multilateral Treaties, supra note 9, at 230. See also, CEDAW Report of the Secretariat Twenty-Ninth
Session, supra note 42, at 13.

41
from Australia, Fiji, India, Indonesia, Malaysia, Mongolia, Nepal, New Zealand,
Philippines, Republic of Korea, Sri Lanka, and Thailand.196 It follows the “Paris
Principles” and provides for observer status to be given for governments, UN agencies
and human rights non-governmental organizations. 197 It has held annual meetings since
its inception, has held workshops on, inter alia, women, HIV/AIDS, and economic,
social, and cultural rights, and has issued reports on violence against women, trafficking,
and discrimination.

An Asia-Pacific Human Rights Commission and Court should be formed under

the aegis of the Asia-Pacific Forum, with the agenda of growing its membership to
include Japan, Pakistan, Cambodia, and Vietnam, and, one day, China. Its judges and
commissioners should have expertise in the range of human rights problems facing
women in the Asia-Pacific region. It should issue a region-wide report on the informal
application of CEDAW-like provisions in states that have yet to ratify the treaty, and also
issue a clear summary of core human rights for women.

(iv) A cautionary note

A note of caution must also be sounded. Regions must not use their regional
autonomy to become geographic human rights ghettos, or even worse, pockets of like-
minded human rights abusers. For example, legal scholar Diane Shelton notes the risk of
“backsliding” in regional systems – that is, the risk that certain state actors with
repressive practices will form their own regional courts and regional human rights
instruments, serving to sanctify human rights conditions that would otherwise come
under the scrutiny of a broader regional system.198 Shelton sees evidence of the potential
for this phenomenon in the Caribbean, where in 1999, Barbados, Guyana, Jamaica, and
Trinidad announced plans to establish a Caribbean Court of Justice in large part out of
disagreement with the Inter-American standards on due process in death penalty cases.199

Regional institutions will need to keep CEDAW in their sights, working to

increase women’s political agency and economic autonomy. Any regional concession to
international standards must not undermine the spirit and intent of that standard, just as
reservations to CEDAW must not, under the Vienna Convention, undermine the general
intention of the international treaty.

196
The body has the support of the joining nation’s governments, national human rights institutions, and
non-governmental organizations. The body was formed following the adoption of the Larrakia Declaration,
which outlines important principles governing the function of national human rights institutions, available
at http://www.asiapacificforum.net/about/about_forum.html .
197
The “Paris Principles” require that the institution be guaranteed independence by statute or constitution;
be pluralistic in membership; and possess autonomy from the government, broad membership based on
universal human rights standards, adequate powers of investigation, and sufficient resources. See
www.asiapacificforum.net/about/paris_principles.html .
198
Shelton, supra note 89, at 395.
199
Ibid. at 396, citing 4 Nations Shedding Curbs on Executions, Chicago Sun-Times, July 5, 1998, at 45.
Shelton explains that the countries had planned on using Trinidad and Tobago as the seat of the new
Caribbean court. See, Trinidad and Tobago to be Centre for Caribbean Court, The Lawyer, Aug. 4, 1998,
at 36.

42
Conclusion

In an globalized world typified by increasing movements of people across

territorial borders and an accelerating awareness of cultural heterogeneity, it is ever more
urgent for human rights institutions to develop a women’s human rights jurisprudence.
Human rights obligations under international treaties are a quiver in the bow of women
who want to expose harmful cultural practices that the state either inflicts or permits. But
using the devise of treaty reservations, too many nations give lip service to the
international human rights system while actual progress at the nation state level on
substantive legal and administrative reforms stagnates. Women living in nations that
have not acceded to the full range of women’s rights under CEDAW have even less
capacity to challenge state-sanctioned harms towards women.

Respect for cultural diversity is now an important goal of international human

rights. But it exists alongside the goal of equality among all people. The two goals of the
international human rights system -- uniform human rights standards on one hand, and a
nuanced approach to cultural difference on the other -- are conceptually in tension and
difficult to administer. Together, they seem to give antithetical mandates to nation states.
Multiculturalism represents the conceptual complexity of administering a human rights
system premised upon a universal framework, but that also respects cultural diversity and
national sovereignty.

Multiculturalism ought give women the conceptual freedom to define themselves,

but it is difficult to practically assess the claim to cultural difference in countries where
women’s political involvement is low. The downside to a policy of multiculturalism and
toleration towards cultural diversity is that it may in fact be a tool of political repression
against women. Arguments about multiculturalism have been utilized cynically to simply
shield a nation state’s reluctance to improve human rights. This conceptual confusion
makes it event more difficult for the international human rights system to make an
accurate and fair assessment of women’s rights. There needs to be a legal forum with
more local insight that can assess state claims to the culture defense. Courts and tribunals
need the tools for deciding if cultural practices are oppressive or benign towards women.

Regional human rights courts, commissions and tribunals can play an important
role in interpreting the tension between universal standards and cultural or group identity.
They can provide a moderated universalism and moderated localism. Regional bodies
can act as a clearinghouse between the assumptions of female homogeneity that underlie
CEDAW, and claims to cultural difference. Regional forums can listen to both the
universal claim of women’s autonomy, and the local claim of group identity and loyalty
to local practice. Regional human rights institutions are a vital part of developing a
women’s jurisprudence of human rights in a globalized world.

43