The Responsibility of Legal Structures in The Enforcement of Women's Rights

Since 1948 when the Universal Declaration of Human Rights was ratified, individuals have complained about the exclusion of certain types of people from the idea of universal human rights. While the United Nations preaches that the treaties and declaration they create are in favor of providing human rights to everyone, one can see that religious groups, indigenous people and other minorities face disadvantages which the UN does not acknowledge or include in their ideas of human rights. A specific group of people who have had their rights oppressed since the first UDHR are women. Treaties have used gender specific language which sometimes excludes women and countries have failed to comply with women’s rights which conflict with cultural and public opinion. The lack of rights for women, though, lies with legal institutions and their inability to provide and enforce rights which would allow women the same opportunities as men. In order to provide equal opportunity and equal human rights to women, legal institutions must acknowledge and provide the specific rights women need to be equal with men, revise the human rights treaties and laws by using gender neutral language to include women, and pressure countries to change their domestic laws and opinions about women to provide women’s rights everywhere.

The critique that Hilary Charlesworth makes of the human rights discourse in “Human Rights as Men’s Rights” is that human rights inherently favor males. Charlesworth argues that the legal institutions which provide human rights lack female representation. An example she uses is that “only one woman has sat as a judge on the International Court of Justice and no woman has ever been elected to the International Law Commission” (Charlesworth 1995: 105). Through the lack of representation in these legal institutions, the women’s voices on their fight for human rights are never heard and thus are never instituted. Also, Charlesworth notes that through male dominance, human rights for men are considered human rights for all, which further ignores women’s human rights needs (Charlesworth 1995: 105). Through this patriarchal system, women’s rights in their private and in the economic, social and cultural aspect of their lives are ignored. For instance violence committed on women is not categorized as a violation against women, but as a violation of people as a whole, even when the violence committed is targeted specifically at females (Charlesworth 1995: 108).

In order to provide equal rights to the women, Charlesworth believes that women must have representation in the legal institution. Natalie Hevener Kaufman and Stefanie A. Lindquist seem to agree with having female representation in legal institutions in their article “Critiquing Gender-Neutral Treaty Language”, where they say that “interpret(ing), apply(ing) and enforc(ing) laws” are important for women (Kaufman & Lindquist 1995: 118) and that women’s ability to address their voice will help in providing rights for women. The ways in which women use their representation in the legal institution seems to differ, though, as Charlesworth believes that a gender neutral language is necessary while Kaufman and Lindquist believe that a language which specifically includes women is necessary for change. Charlesworth points that the use of gender-inclusive language within human treaties would breakdown the bias of the human rights for males and create equality (Charlesworth 1995: 110-111).

Kaufman and Lindquist would argue against the use of gender-inclusive language in legal institutions and would favor a revision in the treaties which would include specific experiences of women in to the language of human rights. Kaufman and Lindquist argue that women deserve specific consideration and be provided with rights different from men because of the different experience that they have from men. Charlesworth says similar things in that an “incorporation (of) women’s experiences” must be included and that this would “challenge the gendered dichotomy”, but says this would “broaden the ideas of rights” (Charlesworth 1995: 111) and not cater to the specific needs for women. Kaufman and Lindquist would take an opposite approach and say that the problem lies in the creation of a broad idea of human rights and that a gender specific idea of human rights must be included. An example the authors provide is the significance of maternal leave for women at the workplace (Kaufman and Lindquist 1995: 121).

Men do not need these same rights at the same workplace and thus a gender-neutral language would not provide specific rights which cater only to women. In order to provide these rights, a corrective language is needed because corrective language would acknowledge gender specific rights. Through these revisions of language in the human rights discourse, women can be on equal footing with the men, in this case in the labor force, since employers will not be able to use a disadvantage women inherently have as a way to discriminate women from the workplace. In addition to maternity rights, Kaufman and Lindquist also explain that women need specific rights regarding child care because the responsibility of child care falls on the women. This idea of child care and maternity seems to be a commonality amongst the authors and Aida Seif El Dawla in her article “Reproductive Rights of Egyptian Women: Issues for Debate” where Dawla also describes how reproductive rights are rights which are not outlined in the human rights discourse and must be acknowledged and provided for women. The authors differ in the way they think the problem should be solved in that Dawla believes that these women’s rights can be provided through acknowledgement of the lack of rights and fight to change the cultural thinking about them while Kaufman and Lindquist seek a change in the language of human rights.

In the case of Dawla, she uses a case study of ‘reproductive rights’ in Egypt to highlight the lack of rights for women. A critique Dawla seems to have in changing the language of human rights is how a change in language will have very little affect on human rights in certain countries. In Egypt for example, where it is a predominantly Arabic-speaking country, there is no translation of ‘reproductive rights’ and the “concept is not self-explanatory…as it has no significance in Arabic” (Dawla 2000: 46) so changing the language of the human rights would not actually institute change. If the concept of reproductive rights is not recognized, it would seem that more than a change in language is needed to provide these rights for women. Most people in Egypt sees women’s ‘reproductive rights’ as “alien to Egyptian culture and are imposed by ‘western agencies’” (Dawla 2000: 50) which highlights how women’s rights are culturally unaccepted. In order to provide these rights, it seems a change in the cultural and public opinion is needed to embed the importance of the rights. More public opinion supporting rights for women must be addressed. Dawla notes though that culture is not the only determinant in refraining from providing human rights to women, but explains that it is used frequently to “cover for a political agenda” (Dawla 2000: 51). It is important to keep this in mind because most would attribute the lack of rights directly to cultural differences, but sometimes a direct change in the government is also needed to instigate a change.

Another aspect Dawla attributes to the lack of rights is how women sacrifice rights for other rights. For instance, in order to gain rights in the public sphere of life, such as for work, rights regarding their private sphere of life, such as marriage, are sacrificed (Dawla 2000: 53). It has become common assumption that all rights for women cannot be provided so society has pushed to fight for one type of rights and not for full rights. In order to gain women’s rights, in all spheres of life, people must use the “universality of rights as a reference” (Dawla 2000: 53). This idea of categorizing rights in to the private and public sector and ignoring certain private laws can relate to the argument of Professor Hajjar in her article “Religion, State Power and Domestic Violence in Muslim Societies”. Professor Hajjar believes that topics such as those regarding domestic violence is sometimes ignored by the public because it usually pertains to the private sector of women’s lives and is a family issue. While the two authors, Dawla and Hajjar, note that a change is needed to provide rights in this private sector of life, they have differing ideas on how this could be done. While they agree that state responsibility is necessary in providing universal rights, Dawla seems to lean toward a push for change in public opinions regarding human rights so that they are recognized while Hajjar focuses more towards providing the laws and enforcing them so that they are not violated.

To highlight her point, Professor Hajjar uses Muslim societies as examples of places where human rights are not provided or enforced. Specifically in terms of domestic violence, Hajjar notes how the violence “occurs within private sphere of the family” and thus “making it visible is exceedingly difficult” (Hajjar 2004: 8) and to reveal this violation of rights, “state intervention…by establishing prohibitions and punishment” (Hajjar 2004: 9) is need. In doing so, it would become imbedded within the society that domestic violence is unacceptable and would become less prevalent. The problem with this idea is the reliance of Muslim countries on traditional Shari’a laws which would prevent such laws from being enforced. Society has come to believe that through a change in the Shari’a law to provide women rights, social order would be broken down and thus would threaten how society operates. In order to combat this idea, the state not only must provide the rights to the women, but must do everything they can to enforce them so that they are not violated and a positive change can be seen.

As explained by the four authors, legal institutions play a huge role in providing human rights to women. The barriers which limit the rights not only come from the treaties which uses gender specific language which excludes women, but also in the state governments where laws are neither provided nor enforced. Where people might believe that the rights are limited in a single aspect of the legal institution, such as in the state or in the international human rights discourse, the oppression of women’s rights occur in the whole human rights process and thus a change is needed throughout the system to legitimately offer the rights women need. Only then can we see universal human rights provided for all.