According to Wikipedia, human rights are amongst other things ‘the common moral language of public discourse’. Yet, the idea that there’s a universally agreed code of morality is still hugely contested. anyone working in this field has inevitably been confronted with a situation where ‘local cultural norms’ conflict with a human right tenet. I recently gave a webinar on adolescent girls and ICT4D to students at Tulane University in New Orleans. One of the first questions was about reconciling cultural practices with human rights and I suppose they expected to hear something that run along the lines of ‘human rights cannot be negotiated & anyone who disagrees can take a hike’. If you’ve ever wandered the halls of the Human Rights Council in Geneva you might come across firm believers in this approach, which relies heavily on legislative frameworks. By that I mean that any country that has ratified a human rights convention must abide by the commitments included in that framework and also translate them into national laws and policies. and it’s true that legislation does play an important role in protecting women from harm.
If we take an historical view of the feminist movement in the US, it becomes clear that many of the domestic legislative reforms they advanced were absolutely crucial in supporting gender equality. Last week I watched the ‘Makers: Women Who Make America‘ a TV series on PBS which is narrated by the fabulous Geena Davis. It tells the story of the successes and failures of the women’s movement in the US and really explains how legislative landmarks like ‘Title 9’ and ‘Roe vs. Wade’ changed American women’s lives. One of the most shocking moments on the show is a photo that was published in Ms. magazine in which a woman (named Gerri Santoro) lies dead on the floor after trying to self-abort her unwanted child. This was the horrifying reality for many women who were left with little choice regarding their own reproductive health. Legalizing abortions through a Supreme Court decision was an undeniable game changer which to date has probably saved millions of women’s lives.
There is no doubt legislation is an important first step in promoting human rights. However, most countries don’t have strong democratic traditions that uphold the rule of law, meaning legislation remains formal and fails to become substantive. And when legislation encounters social norms and traditions that contradict it, most of the time it will come out on the losing end. Without strong law enforcement forces and functioning judicial systems, with high levels of illiteracy and in many cases parallel legal systems (Customary Law), ensuring human rights laws are actually protecting people in a given country is an ongoing struggle. And no less importantly, when working in international development, the Rights Based Approach which provides the framework in which all programming is conducted, often fails to engage communities because of this basic mismatch between formal and substantive legislation. That is, the formal recognition of human rights has yet to be translated into norms, traditions and practices, and therefore doesn’t provide a productive basis for change.
Now let’s add a gender perspective to human rights and complicate this even further. Prominent feminists have argued that human rights are based on the masculine experience as the generic human norm. For instance, take the preamble of the UDHR: ‘Whereas it is essential, if man is not to be compelled…to rebellion against tyranny and oppression, that human rights should be protected by the rule of law’. It’s not just the use of the term ‘man’ to denote all human forms, it’s also the masculine understanding of ‘protection’ that is solely the responsibility of ‘the law’ and therefore falls in the domain of ‘the state’.
This means that it is violations against men, such as torture and wrongful imprisonment, rather than violations against women, which are more often experienced in the private sphere, that remain the standard to which all rights are held. This also means that the protection of people from individuals and non-state actors is limited, since human rights are basically set up to protect folks from the government. Which means that ‘when abuse is sexual or intimate, especially when it’s sexual and inflicted by an intimate, it is gendered, hence not considered a human rights violation’ says Catherine Mackinnon. This androcentric premise of human rights inevitably casts the female body in the category of ‘other’ and implicitly define women as not human. This ensures that violations against women most often perpetrated by individuals, intimate partners and family members, in the private sphere (at home) cannot be effectively addressed through human rights frameworks. Even CEDAW does not collapse this classic dichotomy, and some would even argue, portrays women as victims and exceptions to the norm, which further eradicates their agency.
From a development perspective, all this means human rights don’t have the political sting needed to really advance gender justice. So our work becomes piecemeal. we spend a lot of time focusing on the means and there is a danger that we will forget the role of women and girl’s agency in translating our good intentions into real outcomes.
Keeping in mind that equality between the sexes is a political process helps put the role of human rights frameworks in perspective. It’s about power – who has it, who doesn’t – and the redistribution of power, which will make a lot of people unhappy. This means that where tradition, culture, norms and practices suddenly meet resistance by women, for women, on behalf of women, in the protection of women, there will be push back from those who have power and are really averse to giving any of it up. Where it looks like it’s human rights vs. culture, i suggest looking a little bit closer. More often than not, it will be patriarchal institutions and their representatives, resisting the more equal divide of resources, assets and choices.