Gender & Human Rights Law

Assessing the gender implications of how the public/private dichotomy finds expression in international human rights law and its application.
{University College London}

The concept of ‘universal’ human rights of which international human rights law is supposed to embody [1] is flawed due to the public/private divide. Human rights can never be universal if they only apply to some violations and, seen as they mostly apply to the circumstances men most wish to protect themselves from, it is false to even use the terms ‘universal’ or ‘human’.[2]

The expression of the public/private divide in law comes from the Western liberal view that the law should not interfere with private life. Clearly, however, this binary line is somewhat arbitrary and its applications differ throughout different areas of law. Within international human rights law, the public/private divide generally means that only sovereign states and therefore those who represent them, as the actors in international law, can breach international human rights standards. This has a number of effects including; which rights are given priority and enforcement, the way those rights are applied as well as affecting the overarching framework of international law. The public/private divide in international human rights law thus can be found in many different incarnations. All of these incarnations help towards creating a male system which supports male dominance.

In theory, ‘all human rights are universal, indivisible and interdependent and related’.[3] This would suggest that they therefore all apply equally. This is not the case; whilst civil and political rights are absolute – with a few derogations allowed for special events such as a ‘public emergency’[4], economic, social and cultural rights state merely that the state ‘undertakes to take steps… by all appropriate means … to the maximum of its available resources to [achieve] progressively the full realization of the rights’.[5] This legal obligation is clearly far weaker for a number of reasons; only ‘steps’ need be shown to be taken with no minimum standard set, the rights need only be ‘progressively’ realised rather than absolutely enforced and states can rely on the argument that they could not enforce these right due to their lack of ‘available resources’. Due to the weaker obligation imposed on states in relation to second generation rights, they are often ignored and only extreme cases ever come to litigation. This contrasts directly with the application of civil and political rights which are regularly litigated and have, in modernity, become part of many mainstream discourses.

The reason that these rights have not been enforced as absolutely is because of the public/private divide. Conventions take those rights defined as ‘public’ more seriously which ultimately means that they promote and enforce, through this divide, ‘what empowered men think they must need against other empowered men – that is so called civil and political rights’.[6] It is thereby assumed that women will be equal to men once they participate equally within decision making bodies. However, it is clear that ‘this account of equality ignores the underlying structures and power relations that contribute to the oppression of women’.[7] Without economic and social rights, these civil and political rights are ‘virtually unexercisable’ by many but often by women most of all. This is due to women’s economically, socially and culturally unequal position globally. This unequal position makes it harder for women to participate in decision making processes at all and thus renders civil and political rights to have a limited effect for many, for example; if you are culturally refined to the home, your right to protest likely cannot ever truly be fulfilled. Under current configurations of rights however, the right to protest would still be present and active at law, if realistically unusable.

Despite it being clear that the equal enforcement of first and second generation rights would benefit women, the public/private divide can even be found within the second generation rights framework itself, also creating gender consequences. This divide states that these rights must be fulfilled by the state. For women, often this form of implementation will have little effect as these rights will ‘be mediated through direct subjugation to individual men or groups of men’.[8] Therefore, this state centred paradigm fails to really consider the reality in which many women live. The application of the right to work[9] is one example of this. The right to work ensures ‘just and favourable conditions of work’ for all, yet this only applies to public sphere work.[10] This definition fails to recognise that much of the work done by women, globally, is performed without pay and seen as being in the private, domestic sphere[11]. Therefore, even in application, second generation rights, through the public/private divide, ignore the context in which women live. The public/private divide in this manifestation consequently denies many women of many of their economic, social and cultural rights altogether.

It is clear that the public/private divide permeates many different aspects of international human rights law and that this affects women greatly; from creating distinctions between and within the enforcement of rights to limiting certain right to practical unenforceability. However, this distinction goes even further than these examples alone and serves to limit this already limited body of rights even more.

Civil and political rights also contain a public/private divide. This is because they also only apply to state acts. This is a particular issue in relation to violence against women which predominantly occurs within the private sphere. Private violence against women has been recognised as a global social problem, for example, ‘in America, battering of women occurs on average every 18 seconds in the private sphere’.[12] However, when we look at rights such as the right not to be tortured,[13] we see that this right does not cover these private acts of torture. Torture, as a human right, can only be inflicted by the state or those acting in ‘official capacity’.[14] The application of this right therefore, only applies to some acts of torture; usually the types that most concern men. Private violence against women in extreme cases can indeed be seen as torture and should be included in the definition if the effects and reality is what is to count rather than abstract legal definitions. The effects of domestic violence on women have been found to often be the same as those that legally defined torture victims suffer.[15] The public/private divide in relation to torture works, therefore, not only to ignore the reality of women’s lives and to deny them of their human status, but also to conceal this violence.

The concealment of violence against women by the international human rights framework also has a further impact. Violence against women effects structural power relations between men and women. International human rights law, through the public/private divide, thereby actively protects these power relations through the concealment of and inaction upon acts of violence against women. However, states are directly complicit in this also, not only as the creators of the international human rights framework but also more specifically through state policy. States are ‘typically deeply and actively complicit in the abuses mentioned, collaborating in and condoning them’.[16] This can be seen, for example by states denying battered woman’s syndrome as a defence to manslaughter.[17]
These are state actions yet the public/private divide does not include these direct state actions within its framework despite already denying rights within the private sphere completely. Thus, state actions through policy creation and implementation do not breach international human rights law.

This distinction is a manifestation of the public/private divide and the way it is defined to outline which rights can be enforced in which circumstances against the public sphere. The ludicracy of this distinction is apparent. This can be seen in relation to the above example of battered woman’s syndrome and manslaughter/murder. In UK law, because of the ‘cooling off’ period[18] often present between the woman being beaten and her killing her husband, thus creating the ‘malice aforethought’[19] it is suggested true self defence claims negate, battered woman’s syndrome is not enough to claim self defence in murder trials; ‘can you imagine a murder prosecution by a state against a torture victim who killed a torturer while escaping?’ It is state acts like the one described here which condone violence against women and dismiss it yet these acts are not covered by international human rights law despite them being state and thereby public acts.

International law has, however, made some steps towards breaking down this public/private binary in the aim of redressing the human rights breaches which women face, even if these steps are limited. The case of Velasquez Rodriguez v Honduras[20] states that, in relation to rights, if that state ‘knew or ought to have known’ about such violence and systematically tolerated it, then they may be liable. Whilst this case was not a about violence against women, these provisions have been used in this context. However, this is international human rights law within a regional system. Here, I have been discussing the overarching framework of international human rights law of which states globally are party to. These regional cases, do, however, have some standing within the broader international framework. This can be seen in Fatma Yildirim v Austria[21] where the victim suffered years of abuse and reported it to the police several times. The state failed to act. The state thus knew about the abuse and so was liable. However, it seems that, within global international human rights law, this provision is extremely limited and can only be used once the victim, as in this case, is already dead. This is because, until this happens, the victim’s aim it to gain domestic redress. It is only through the ultimate failure of this redress in the form of her death that the state can be found to be liable. Thus, whilst this provision goes some way towards breaking down the public/private divide, it clearly goes nowhere near far enough.

A provision which has been debated somewhat within the international legal sphere yet has yet to be implemented is the idea that states should be responsible and exercise ‘due diligence’ to protect women against violence.[22] This would help deal with the issues somewhat as it would ensure that the state could not enforce laws which may promote violence against women such as marital rape and thus would deal with the issue highlighted above in relation to some state actions not currently being breaches of rights. However, this idea does not go far enough. States should not only be diligent in preventing violence against women but they should also actively try to prevent this violence. If the state fails to tackle these issues then this should be seen as a breach of international human rights law. Otherwise, the state could practically ignore cases of violence against women up until the point of death (as above). Requiring positive action would be the best way to help break down the public/private divide and deal with its gendered affects in this area of the law without having to change the entire system upon which international law is based with state sovereignty as its basis (though I will come on later to discuss conceptions of this public/private divide and their relation to gender also).

States are fully aware that violence against women is a social problem. It happens systemically as well as systematically as highlighted above. If states fail to implement policy to try and tackle this, this is a clear breach of rights. Their only defence would be that law is in place to try and deal with these issues. However, merely having a law in place should not be enough alone. Many states have such laws yet the violence still is very much unaddressed. This is because, whilst these laws look good on paper, many states choose to ignore them and/or give them low priority and thus, again, actively condone violence against women. Therefore, not only must the laws be in place for a defence to be had but these laws must also be actively enforced otherwise this development, although seeming to deal with the issue, again would not really be doing anything in reality.[23] This idea could be extended, not only to domestic violence but also to help deal with violence against women as a broader issue, for example, the low conviction rates for rape in many countries compared to the rates for other crimes could thus be seen as a human rights breach as sanctioned impunity and require redress. Although we are a long way off a human rights system that fully recognises violence against women as a genuine human rights issue, this type of enforcement would truly help break down the public/private divide which helps condone and conceal this violence.

However, ultimately, the negative effects of this binary cannot be eliminated from international human rights law without also considering the binary application and affect throughout the international legal system.

All international law rests on the principle of state sovereignty. This means that states, as the public, are the only legal actors in international law. This sovereignty is seen as purely procedural, just a formality. However, there is no such thing as an empty procedure. ‘The way sovereignty works is that men respect other men’s control in their own domains … the domain being women and children, in the hope and expectation of reciprocity… otherwise known as the male bond’.[24] It is clear, when fully considering these principles, that this public/private divide, which forms the basis of all international law, is a male way of organising institutions. International human rights law allows us to clearly see this male structure at work. The structure allows men to conceal violence against women globally through helping other men to conceal their violence and expecting the same in return. This is because states are ‘imagined the primary violators of human rights as well as being the ones empowered to redress those violations. How convenient.’[25] It becomes clear that the reason states do not break ranks and start trying to extend the law when it comes to issues such as economic, social and cultural rights and global violence against women is because all states fail when it comes to women’s rights standards. States do not call others out so they do not get called out. ‘Sovereignty is the name of the principle in the name of which men respect this.’

The public/private divide within international human rights law is an arbitrary distinction drawn throughout different aspects of the law. Where this line should be drawn is questionable throughout all areas of law. It is clear, however, that where it has been used and drawn in international human rights law, it has always been done to the effect of limiting the human rights of women.

The very definition and enforcement of rights is affected by this arbitrary public/private divide. It defines which rights are enforceable and thus practically excludes economic, social and cultural rights from the framework. In doing so, international law prioritises male needs and excludes the needs of women almost entirely. This occurs even within the definitions of economic, social and cultural rights as well, however, with their public focus failing to recognise the reality of many women’s lives.

The public/private divide also ensures that civil and political rights are a male concept. These rights can only ever apply against the state under this distinction. Women are thus left powerless within the private sphere; the sphere where their rights are breached the most. MacKinnon states that ‘If, when women are tortured because we are women, the law recognized that a human being had had her human rights violated, the term “rights” would begin to have something of the content to which we might aspire’.[26] Within civil and political rights, women are not human. Human rights do not fully apply to them because they do not protect the rights women need most of all.

The public/private distinction is a male distinction; it benefits men and allows women to be ignored. It permeates every aspect of international human rights law including the basic international legal framework itself. Therefore, human rights, which are arguably the key international moral basis of modernity, are a false ideal in their current configuration. For human rights to really encompass the needs of all humans, international human rights law needs to drastically change, starting with the eradication of the public/private distinction. International law itself, however, and its foundational idea of sovereignty as its claim to legitimacy, is also part of the public/private framework. Hence, for real change to really occur and for women to truly become ‘human’, this basic framework would, itself, also need to be revised. To hide behind the supposedly neutral principle of the public/private divide is to deny women their humanity.

Citations & Bibliography

Tagged Equality, Human Rights, International Human Rights, Liberal