Tensions that remain inherent in recognizing Women’s Rights.
The French feminist writer, Simone de Beauvoir (1908-1986) writes about the perceptions of women, their role and significance in society. In her work,’The Second Sex (1949), she argues that:
“One is not born, but rather becomes a woman. No biological, psychological or economic fate determines the figure that the human female presents in society;
it is civilization as a whole that produces this creature, intermediate between male and eunuch, which is described as feminine.” ( Simone de Beauvoir (1949) in Cohen p. 603)
Beauvoir’s analysis alludes to the idea that the feminine gender is not a biological variable, but a sociological construct, one in which the particular sociopolitical cultural context in which a woman finds herself determines her role, identity and significance in that particular society. The question, therefore, of ‘what is a woman’ that Beauvoir poses has to be answered with reference to the categories of masculinity and femininity assigned by societies that may be influenced by values within androcentric or patriarchal structures.
Beauvoir posits that: ”all of us, men and women , whoever we are , should be considered as human beings.”. The idea that women derive their identity and role in relation to the way men perceive them is inherent in Beauvoir’s writings. She writes: “woman does not think herself without man .
And she is nothing other than what man decides’ she is thus called ‘the sex’, meaning that the male sees her essentially as a sexed being for him she is sex, so she is in the absolute. He is the Subject; he is the Absolute. She is the Other.’
(Simone de Beauvoir (1949) in Cohen p. 605)
This objectification and impersonalization of the feminine gender may not be as palpable as the way it is graphically depicted by Beauvoir in this era of modernity that advocates for an equality of rights among the genders. Yet the dehumanization of women is prevalent in States that violate human rights of individuals. Consider the massacres and rapes of Rohingya women and children by the Burmese army post 2017; the singling out of villages of Yazidi women for abduction, rape and sexual slavery by Isis in Iraq post 2014. It is indisputable that the ‘gendered nature’ of sexual violence and rape of an estimated 20,000 to 50,000 of mostly Bosnian Muslim women in Bosnia- Herzegovina by the Serb military in 1992 continues to traumatize the victims and their families to this day. (NewStatemanAmerica 2017).
Radical feminism’s views on sexual violence against women
The gendered nature of violence experienced by women can be further perceived as an outcome of the domination and the unequal treatment of women by men in the social and political spheres of life. Radical feminist thinker, Catherine MacKinnon argues that:
‘the common failing of theories associating equality with equal treatment or with different treatment is that they implicitly accept a male yardstick: women are either the same as or different from a male norm.” ( MacKinnon (1987) in Chinkin 2016, p. 42)
Consider the protection afforded by international human rights treaties for the equal treatment of women. Artice 3 of the ICCPR provides that:
“States Parties…undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant.”
Art 26 of the ICCPR further provides:
”All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, color, sex, language, religion, political or other opinion, natural or social origin, property, birth or other status.”
It is arguable that the interpretation and implementation of such instruments of international law by State officials will, to a varying extent, be subject to preconceived, stereotypical biases against women held by such parties. This may be the case if the domestic law of a State concerned, which is used as a ‘yardstick’ for interpreting international human rights treaties ‘keeps women out and down by preserving a hierarchical system based on gender and sex .’ ( MacKinnon (1987) in Chinkin 2016, p. 42)
To counter the effects of unequal treatment of women inherent in the law, MacKinnon posits the key question of ‘whether the policy or practice in question (underlying the relevant laws) contributes to the maintenance of a deprived position because of gender or sex’. (MacKinnon (1987) in Chinkin 2016, p. 43)
That is to say, would the legal protection against , for instance, the deprivation of liberty, and bodily integrity, the use of sexual and non-sexual forms of violence ordinarily- afforded to men- be undermined or even be absent because one is a woman?
The Insidious effects of sexism
I was especially intrigued by Charlotte Bunch’s argument that ‘sexism kills’. Empirical evidence does seem to suggest that women are discriminated against not only on the basis of their membership of a particular ethnic group, race, class, or political persuasion but also because of their gender. I would support Bunch’s observation that there is ‘increasing documentation of the many ways in which being female is life threatening.’ Survivors of the massacres of villages in the Rakhine state in Myanmar recounted to journalists of the New York Times of girls being singled out by the military and being gang raped ( NYT, Oct 12, 2017) .
Prior to the ruling of the Indian Supreme court on the illegality of sex with child brides, generations of female children were given in marriage to men who relied on the Indian legal code that stated that ‘a man could have sex with a girl as young as 15, as long as she was his wife.’ (NYT, Oct 11, 2017).
It is arguable that these and other examples of oppression of women highlight the violation of a number of rights of women as ‘political prisoners, members of persecuted ethnic groups’ ( Bunch) as well as the violation of their rights to bodily integrity and life as evidenced by gender related sexual abuse.
What exactly is the nature of the correlation between the violation of rights of women, for instance, to life, bodily integrity, freedom against slavery in the form of human trafficking , education, employment, and the female gender which certain feminist socialist theorists such as Messerschmidt argue is a social construction involving the way in which men and women perceive their masculinities and femininities mediated by power relations between the genders, the socio-cultural ideologies underpinning class, race and even patriarchy.
In societies like those of India, child marriage is not uncommon especially since the payment of dowries to fathers of female brides is still part of the custom practised in some villages. Practices such as child marriage are perceived by some lawmakers as inevitable since they provide financial assistance to the poorer rural families and provide a degree of protection for vulnerable women and children.
Coomaraswamy ( writing in ‘Human Rights of Women, Cook) discusses the prevalence of similar paternalistic attitudes underlying the Sri Lankan constitution’s non discriminatory clause that groups women together with children and disabled persons. She asserts that ‘in this paternalistic project , women along with children and the mentally disabled are denied agency .’
One gets the sense that the needs, aspirations and rights of women are determined by some societies against the backdrop of preconceived perceptions influenced by the historical, political and socio-cultural make-up of these societies. In this context , one wonders how the human rights of future generations of women in relation to issues for instance on bodily integrity, poverty , education, marriage will be expanded and protected.
I am inclined to support Prof Fredman’s view that ‘giving rights to current generations can enhance and facilitate the rights of future generations’. There however need to be a prioritization of women’s rights as human rights and the allocation of the necessary resources for such an endeavour through changes to socio- cultural attitudes , state policies and laws in ‘reconceiving the needs and hopes’ of the human rights of current and future generations (Bunch).
Ensuring that duty bearers of a state recognise and uphold the rights of women not to be subject to violence within marriage or to be protected against sexual slavery and human trafficking for instance by introducing laws that criminalize marital rape and sexual exploitation will safeguard future generations of women from violence within marriage. The reality is , that nation states like Singapore and India have yet to recognise marital rape as an offence although Singapore has recently introduced the Prevention of Trafficking Act 2014 to deal with the sexual exploitation of women and children.
Charlotte Bunch (1990) ‘Women’s Rights as Human Rights: Toward a Re-Vision of Human Rights’, Human Rights Quarterly, Vol. 12, No. 4, pp. 486-498.
COHEN, M. (2018). Princeton Readings in Political Thought: Essential Texts from Plato to Populism. Princeton, Princeton University Press.
Cook, Rebecca, 1994, Pennsylvania Studies in Human Rights : Human Rights of Women : National and International Perspectives, Publisher University of Pennsylvania Press ISBN-139780812201666.
Hilary Charlesworth and Christine Chinkin,2000, The boundaries of international law, A feminist analysis, Manchester University Press.
A law lecturer and academic by profession, I share my perspectives on issues ranging from the Protection of International Human Rights and its relationship with International Relations to principles of Domestic and International Criminal Law, Criminology and Equity and Trusts. I graduated with an LLB, PGCL (Equity and Trusts) , PGDL (Criminal Justice), LLM (Criminology) from the University of London and an MA (Distinction) in Human Rights and Global Ethics with the University of Leicester's Politics and International Relations department.
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