Feminist Analysis of Human Rights Law

By Qureshi, Shazia | Journal of Political Studies, Winter 2012 | Go to article overview

Feminist Analysis of Human Rights Law


Qureshi, Shazia, Journal of Political Studies


Abstract

The rhetoric of human rights declares the idea to be universal (Universal Declaration of Human Rights, 1948), this claim inevitably poses a serious challenge when one tries to theorize human rights. In response to human right law's self-proclaimed Universality and Neutrality, two major critiques have been developed which deny the truth of this assumption, namely Feminist and Cultural relativist. This article looks at the universality claim of human rights law from the feminist perspective, according to which, the human rights discourse is an extension of a gendered international legal system that fails to take into consideration the voices of women (Gottschalk, n.d.: 1). The article also explores the stance of cultural relativists on human rights law and shed light on the extent to which it is detrimental to feminist approaches.

Keywords: Public/Private dichotomy, Universalism/Cultural Relativism, Gender bias, Women's Human rights, Feminists

Introduction

Since the conceptual foundations of human rights norms are rooted in the Western liberal thought, the content of human rights represents a specific philosophical account of human society (Langlics, n.d.: 16; Radacic, 2010: 830; Kelly, n.d.: 476). This particular underlying philosophy from which the notion of rights was derived has rendered the nature of the notion of human rights highly contested. The article recognises that the notion of human rights law is not value-free, its agenda is both political and gendered (Radacic, 2010: 830). It argues that human rights conceptual framework is deeply gendered and it privileges a certain set of normative commitments. From this it follows that the legal construction of human rights is unsatisfactory for women because the core theme of human rights law reflects a male viewpoint which may not necessarily resonate with the lived realities of women's lives (Brooks, 2002: 345; Bunch, 1990: 486). Some aspects of male supremacy within the construct of human rights norms could be exposed by taking a close look at the rights' regime established by Universal Declaration of Human Rights (UDHR) 1948. For instance the notion of public/private divide, basically a hallmark of liberal philosophy and adopted by human rights discourses, disproportionately privileges men. Public arena in most societies is predominantly occupied by men and women are relegated to private sphere of home and family (Binion, 1995: 5). Given the sanctity attached to it, private realm is often beyond the reach of state regulation which makes the position of women vulnerable within domestic sphere. This article argue that creation of fictional divide between public and private life of individual, and leaving the later outside the state's control set the stage for violation of women's human rights particularly in the form of violence against women at the hands of private individuals (mostly men) (Gottschalk, n.d.: 3 & Binion, 1995: 5). Understanding the historical evolution of the concept of human rights is essential to understand the debates and problems that surround it. This article, therefore, begins with a brief description of the evolution of human rights law.

Historical Background

International law historically was, and to significant extent continues to be, interstate law (Mullerson, 1990: 34). According to the notions of general International Law, the State is considered as the subject while individual as the object of this body of law. This means that only states can directly participate in the process of international norm creation, and the rules so created will govern the mutual relationships of the states. The individual in the pre-WWII era was viewed largely as a passive beneficiary of the rights, guaranteed by states under international law1. Only after WWII did the protection of human rights became a central concern in the International Law, with recognition that the State is not always a guardian of its nationals (Knut, 2006: 3). …

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