Academic journal article Law & Society Review

The Making and Unmaking of Feminicidio/Femicidio Laws in Mexico and Nicaragua

Academic journal article Law & Society Review

The Making and Unmaking of Feminicidio/Femicidio Laws in Mexico and Nicaragua

Article excerpt

Since 2010, Latin America has witnessed a wave of new laws to address the murders of women, known as femicide (femicidio) or feminicide (feminicidio) (MESECVI 2017). Although sometimes used interchangeably, the terms femicidio and feminicidio are conceptually distinct, with potentially different legal implications. Femicidio is generally understood as the killing of women by men based on misogyny (Russell and Radford 1992). Feminicidio extends this definition emphasizing the state's complicity in perpetuating violence against women and its impunity (Fregoso and Bejarano 2010; Lagarde 2010).

These legal changes can be partly attributed to the diffusion of human rights norms enshrined in international instruments like the 1994 Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (Belém Do Para Convention), which define state responsibility for gendered violence.1 The Inter-American human rights system has propelled this process by opening up new opportunities for social movement challenges (Friedman 2009; Htun and Weldon 2012; Santos 2007). However, the process by and degree to which international legal norms concerning gendered violence are integrated into national contexts varies considerably, even within Latin America. Because international human rights instruments do not stipulate how states should implement their terms, they have been incorporated through various mechanisms, including constitutional recognition, legislative reform, policy development, or judicial decisions (Heyns and Viljoen 2002 in Alston and Goodman 2013: 1049-53), resulting in regional variation in states' compliance with international treaties (Montoya 2013).

Because human rights have become a symbolic marker of the "modern" state, both liberal democratic and repressive states ratify international human rights instruments without necessarily intending to fully comply with them (Hafner-Burton and Tsutsui 2005; Tsutsui et al. 2012). Given these instruments' weak enforcement, states make this "empty promise" in pursuit of legitimacy, which inadvertently opens avenues for social movement actors to pressure states into complying with them, such as through "naming and shaming" campaigns (Hafner-Burton and Tsutsui 2005; Keck and Sikkink 1998). This may be especially so for international norms on gender equality, which have become a yardstick for measuring states' "modern" status (Merry 2003, 2006; Towns 2010). Therefore, the "paradox of empty promises" associated with the ratification of and compliance with human rights instruments is premised on the assumption that states' investment in being perceived as legitimate in the international community can provide leverage to social movements (Hafner-Burton and Tsutsui 2005).

Yet, we posit that state responsiveness to legal activism/advocacy may also depend on the inverse - that is, how state actors view the international/regional human rights systems' legitimacy as arbiters of justice for gendered violence-related claims. Consequently, the use of similar legal tools and arguments may yield different results under different political conditions. To more fully understand this variation, we examine the contested lawmaking process related to the killing of women in Mexico and Nicaragua and their legislation on feminicidio/femicidio. Our comparative approach focuses on two analytical factors: (1) the interaction between shifting local political conditions and supranational opportunities and (2) the position of feminist actors vis-a-vis the state and its gender regime. Building on the literature on human rights law and feminist activism, we argue that these two dimensions can explain how and why laws addressing feminicidio/femicidio are made and at times unmade in different Latin American countries.

Like Boyle (2002; Boyle and Preves 2000), we contend that the regional diffusion of gendered violence laws occurs via a complex interplay between supranational and local factors. …

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