Women’s Rights: Does the Law Matter?

For a right that is virtually universal now, it is hard to imagine that in 1911, there were only two countries in which women were allowed to vote.  Of course, we are here today in Oslo in celebration of this social and political progress, and specifically the centenary of women’s suffrage in Norway, a clear example – one of many – of why this country is often commended for its leadership in the promotion of gender equality.

The history of the move towards universal suffrage, as well as the history of much of the human rights movement, reflects the interface between law and politics. Perhaps more surprisingly, it reflects also the increasing importance of international law - or maybe better put, international doctrine - in the advancement of rights at the local level. Conversely, legal blockages, particularly at the international level, have a deleterious impact on the more progressive national efforts. And ultimately, I suggest, a lack of application and enforcement of rights remains the greatest obstacle to the fulfilment of the universal promise of equality.

Does the law matter?

So the advent of women’s right to vote, the subject of long, protracted battles in many countries, should rightly be celebrated. It consolidates the right of women to participate in their own governance, and opens public space to women otherwise relegated - in most countries and across many cultures - to a place, often of submission, in the private affairs of the family.  Securing the right of women to vote has thus been the product of a modern conflation of two important ideas: democracy and equality.  It has also been the impetus for advancing further the merger of these two concepts, by generating debate over the place of women in the workplace, in government and in the private sector, and raising the questions of pay equity and the burden of child care. Not least, women’s suffrage has opened the doors to the idea of substantive equality, which asserts that true equality may require different treatment.

The progress made in national legal systems on the democratic rights of women has often been accompanied by increased legal protection for women in the private sphere or, more accurately, in opening the so-called private domain of the family to public scrutiny, exposing and denouncing violence against women in its most prevalent and insidious form.

The last part of the 20th century saw an increase, both domestically and internationally, in the legal affirmation and protection of women’s rights. The necessity to anchor rights in enforceable law has proven critical. Although some interests can be advanced politically, many can only be secured by law duly implemented. The right to vote is a prime example. No matter how much public acceptance full universal suffrage may get, it can ultimately only be ensured by law.

The many manifestations of gender inequality are often said to be cultural, reflecting religious or historical traditions engrained in the diversity that we should celebrate and protect in this otherwise more integrated world. This suggests that they will probably disappear over time, as societies shed old practices and express their identities in more modern forms. However, this obscures the role that law plays in either freezing old norms or, on the contrary, propelling reforms. In the civil law system under which I was trained, the status of married women remained, until 1964, akin to that of minors and persons stripped of their legal capacity. Women in my own province of Quebec did not obtain the right to vote until 1940, after more than a decade of intense lobbying. In contrast, when gender equality was entrenched in the constitution in 1982, the enforceable legal requirement of equality opened the door to a range of courtroom victories for women’s rights, which transformed the reality of women’s lives in significant ways, most importantly, in my view, on the issue of reproductive rights, to which I will return later.

There is therefore no doubt that the law has a critical role to play in the implementation of the idea of equality and non-discrimination. The question remains: how significant is international law?

Does international law matter?

Since the 1948 Universal Declaration of Human Rights, international law has provided a global framework for the promotion of equality, and has served as a critical impetus for the adoption of progressive legislation at the national levels. One fitting example – and I say fitting because it brings us back to the issue of female suffrage – is that of Kuwait in 2005.

For decades, women in Kuwait fought for their right to vote and for political participation. In 1994, when Kuwait ratified the UN Convention on the Elimination of All Forms of Discrimination against Women, it did so with reservation to Article 7, stating that the ‘paragraph conflicts with the Kuwaiti Electoral Act, under which the right to be eligible for election and to vote is restricted to males.’ Ten years later, in 2004, Kuwait presented to the CEDAW committee its first report on the status of its commitment to the Convention. Unsurprisingly, Committee members rebuked the decision of Kuwait to ratify the convention with reservation to Article 7 (amongst others) and stressed the need for the parliament to extend voting rights to women. The next year, in 2005, Kuwait officially withdrew its reservation to Article 7, having finally granted women their full political rights.

I have now mentioned CEDAW without any introduction, but I wouldn’t wish to discuss it further without first acknowledging my fellow speaker who sits on CEDAW’s Committee of 23 experts, Ruth Halperin-Kaddari. I very much look forward to hearing her intervention, and to hearing from Kate Lappin of the Asia Pacific Forum on Women, Law and Development.

It is surely significant that CEDAW holds the dual qualities of being a treaty amongst the fastest to enter into force, and also the treaty with the most reservations. On the positive side, the rapidity of ratification demonstrated an emerging global alertness to what should have been the self-evident realization that human rights applied, in full, to women. Somewhat more cynically, when one couples that with the unprecedented number of reservations – some of which nullify the very commitment that is purported to being made – it leads one to question whether states consider that they get more benefit from treaty ratification than from implementation.

Despite this apparent cynicism, I maintain that international legal instruments have proved invaluable in advancing women’s rights. Domestic courts, for example, have relied on international treaty obligations, including CEDAW, to decide that women’s sexual and reproductive health rights are recognized as human rights and therefore must be protected. The Colombian Constitutional Court’s 2006 decision to overturn the country’s total ban on abortion is one such example, and there are many.

Reproductive rights

Reproductive rights are the most gender specific and, perhaps not surprisingly, they remain the least legally protected, both internationally and nationally, along with LGBT rights. They are the most relevant to all women, irrespective of race, wealth, education, or nationality. And so I believe that we cannot have a discussion about the empowerment of women without addressing this deficiency in the legal framework.

Reproductive rights have proven to be some of the hardest-fought and most controversial of the modern era, spanning generations, cultures and stages of economic development. The specificity of reproductive rights is rooted in the fact that other inalienable rights of women – such as liberty, security, health and education - cannot be adequately protected and promoted without ensuring women have control over their bodies and sexuality, including decisions on when, how and whether to bear children.

Few other rights are more vulnerable to the interpretation and opinion of those who hold power, usually men. In 2002, we saw, for example, how the Bush administration suddenly withdrew the United States’ 34 million dollars in funding to the UNFPA on a basis that had been difficult to ascertain. This decision cut funding to an organisation that routinely proves instrumental in implementing family planning services, reducing maternal mortality, and combating the AIDS epidemic around the globe – to name but a few of its efforts. The hostility and potency of lobbies adverse to the very idea of women controlling their sexuality and fertility has few equivalents in the human rights environment.

And yet remarkable success has been achieved in the advancement of every woman’s right to maternal health and reproductive freedom.  The U.S. based Center for Reproductive Rights has, for 20 years now, been using the law to advance this issue. Through legal action at every judicial level – including internationally – the Center has fought to secure and protect reproductive rights for women around the world, even succeeding in reframing preventable maternal deaths as human rights violations.

There have also been remarkable advances in the movement to eliminate Female Genital Mutilation and that is largely due to the efforts of organizations such as UNFPA, Unicef, and No Peace Without Justice, who have launched a sustained campaign, leveraging legal, social, and political means through a broad based coalition led by women in the countries most affected. Entire communities have declared their commitment to renouncing the practice; numerous countries have passed laws banning it; and last year, the UN General Assembly unanimously adopted a worldwide ban against this abhorrent practice affecting millions of girls and women.  

Women, peace and security

I would like to turn now briefly to a subject in which I have been more closely involved in recent years, that of women, peace and security. Broadly speaking, international human rights law and international humanitarian law, as seen through a gender lens, have much to contribute to a framework for the protection of women at times of conflict, and for their right to participate in mechanisms of conflict resolution. But this has been overtaken, to a large extent, by the enactment of Resolution 1325 of the UN Security Council in 2000, and by the many resolutions that have since followed. Despite being anchored in the authority of the Security Council, I’m afraid these resolutions have so far attracted more repetition of intention than success in implementation. Rather encouragingly however, the latest of these contains surprisingly progressive language on reproductive rights. SCR 2122, which was passed last month, includes in the preamble a reference to the need to provide women in armed conflict and post-conflict situations with ‘the full range of medical, legal, psychosocial and livelihood services’, and then – crucially – notes the need ‘for access to the full range of sexual and reproductive health services, including regarding pregnancies resulting from rape, without discrimination’.

Over the past few years, there has been a lot of discussion on the ‘lessons learned’ from this much celebrated resolution, and as we draw nearer to its 15th anniversary, we’ll likely see more. Despite having given rise to a flurry of activities, I’m afraid that Resolution 1325 and its numerous reiterations have fallen far short of accomplishing their intended objectives. Already the passage of 2122, despite its remarkable attention to reproductive rights, was met by some with expressions of ‘resolution fatigue’ and ‘resolution creep’.

It has been pointed out, repeatedly, that the problem with Resolution 1325 is one of implementation; that it lacks a necessary mechanism for follow-up and accountability. Nearly 14 years in, only 43 countries have implemented their National Action Plans. Norway – again, a consistent leader in advancing women’s issues – was one of the first countries to do so, but even here it took 6 years to accomplish.

I would suggest to you that the problem with Resolution 1325 lies even deeper than its lack of an enforcement mechanism. I question whether the resolution’s positioning of women in relation to armed conflict accurately reflects all the complexities of war. By framing women almost exclusively as victims and peacemakers, the resolution not only ignores the reality of war - which is essentially about the power of arms and money - but it obscures the other roles and aspirations of women in war times. In particular, it overlooks the partisan role of women in conflict, sometimes as combatants, often in support roles, in the pursuit of a political agenda in which they often have a say. In this way the resolution embraces stereotypes about women, revealing an angelic view of their role in war, and therefore perpetuating their absence from the issues and the stakes that underlie the conflict.

I don’t want to minimize the particular victimisation of women in armed conflict, including the atrocious scale of sexual violence that is often unleashed or exacerbated when all forms of violence become the daily afflictions of entire communities. Neither do I want to deny the importance of inclusive peace processes, and the necessity for all sectors of society, including women, to participate in the reconstruction of war-torn communities. The reality remains that when peace is negotiated, the important players are those who have something real to put on the table; the deal makers are those who can surrender their troops and their weapons. Bringing women to the table with the agenda of mending the social fabric is no doubt useful, but it also serves to perpetuate the assumption that women only address the soft issues, thereby reinforcing stereotypes, rather than serving to displace them.

Over the past decade, we have continued to see a notably low level of women’s participation in peace processes. While it remains essential to increase the representativeness of those who construct post-conflict environments, focus should shift to examining the more partisan role of women in conflictual environments and validating their leadership even when it is expressed in non-stereotypical ways, such as in combat, and more largely in political engagement. Women depicted as bystanders of history will find it harder to occupy their full place as citizens in emerging democracies. The young women of the Arab uprisings, for example, who have taken to the street in remarkably large numbers, need to be supported on equal terms, as citizens and as women. And when they are given a seat at the peace table, it should be clear that they speak in both capacities.

All is not wrong with Resolution 1325. It has helped to place women and security issues squarely on the international and national agendas, and it has spurred the kind of conversations – like the one we’re having today – which are attracting the attention they deserve.

But I suggest that we must continue to be vigilant in confronting the gender stereotypes that have for so long precluded women from occupying their proper place first in their own governance, and then more broadly in the life and the future of their communities, on terms of their own choosing. For instance, I believe that we should be particularly attentive to the overuse of the expression “women and children”. While there are circumstances where it is appropriate to refer to the two as a single group, the suggestion that they are homogeneous, and stand as a group in contrast to men, who are different, is hardly a message of empowerment for women. Used automatically, even when there is no particular factual need to do so, perpetuates, and by doing so validates, a stereotypical view of women as less able and therefore less deserving, of occupying positions of power and authority.

Lack of power - of control over one’s destiny - is both a lack of liberty and of security. In the context of armed conflict the security of women must therefore be understood to include their empowerment - quite a dilemma when power in war comes from money and arms, not from law suits and negotiations.

The situation of women in conflict and post conflict environments could not be better illustrated than by the recent report we have published at International Crisis Group on women in Afghanistan. In the last decade, considerable advances have been made in the legal framework for protection of women from violence and abuse; however, all of this could unravel next spring in the political transition that Kabul is about to undertake with its elections and the withdrawal of international troops. It may be that a decade of legal progress is not enough to consolidate the reversal of a history of discrimination and repression.

Conclusion

When we look at the right to vote, an area in which women have made tremendous gains, we must not forget how long and hard fought the battle has been. Only now, some 150 years after the suffrage movement began, does the concept enjoy broad public acceptance.

I say this to suggest that as we celebrate clearing one hurdle, and we discuss where and how to focus our efforts next, we do not become deterred by the inevitable setbacks and we continue to avail ourselves of the legal instruments that have served us well in the past. Through important advances in legal theory, such as substantive equality and affirmative action, women in mature democracies have taken giant steps to overcome centuries of exclusion and discrimination. In many communities where women are still disproportionately afflicted by illiteracy, poverty and discriminatory practices, the influence of the international human rights framework offers the best hope for redress and change. Universal rights, enforced by law, will propel women fast into the 21st century. And with them many others who, in smaller numbers, are also asserting their equal rights.

I began by saying that there is no doubt that the law has a critical role to play in the implementation of the idea of equality and non-discrimination. Perhaps this becomes clearer still, if through a gender lens, you consider the following articulation of the Rule of Law by Henri-Dominique Lacordaire:

“Between the rich and the poor, between the master and the servant, between the strong and the weak, it is freedom that oppresses, and the law that sets free.” (52e Conférence de Notre-Dame, 1848)