20 Years after Beijing: Taking a few steps back?

UNwomen-Logo-Blue-TransparentBackground-enUN Commission on the Status of Women (CSW) is set to be the biggest conference yet solely dedicated to women’s issues. With 900 participants it has set itself as both a celebration of the 20th Anniversary of the Beijing Declaration and Platform for Action, which is celebrated as a pivotal moment in the progression of women’s rights but also a point of rejuvenation as the process of ensuring gender equality moves forward. Yet, the fault-lines and alliances that have appeared in the run-up to the Conference as well as the potential of push-back against what has stood for 20 years raises a serious points of concern. Could the CSW actually be a moment of regression rather than forward momentum?

The Beijing Declaration and Platform for Action focused on, amongst other elements, Women and PovertyEducation and Training of Women, Women and HealthViolence against WomenWomen and Armed ConflictWomen and the EconomyWomen in Power and Decision-making, Institutional Mechanism for the Advancement of WomenHuman Rights of WomenWomen and the MediaWomen and the Environment and The Girl-child. It also explicitly recognised the role that women’s advocates and feminists had done to bring these issues to the fore, this acknowledgement was key in understanding the role that women had played in attempting realise their own equality and the price that some advocates paid in doing so.

The growing strength of the non-governmental sector, particularly women’s organizations and feminist groups, has become a driving force for change. Non-governmental organizations have played an important advocacy role in advancing legislation or mechanisms to ensure the promotion of women. They have also become catalysts for new approaches to development.

Together with the Millennium Development Goals, (MDG) which, amongst others, aimed to eliminate gender disparity in primary and secondary education…no later than 2015 and to improve maternal health as well as reducing child mortality, these two platforms were considered concrete steps forward. Whilst the implementation of both the Beijing Platform and the MDGs has left a tremendous amount to be desired, for example if we look here in Ireland we can see serious problems with achieving what was set out in both these documents, the presence of such aims gave advocates a strong grounding on which to base their claims against governments and other organisations.

What has struck many as problematic in the run-up to Beijing is the pre-ordained settlements that appear to have been made prior to the CSW itself as well as the roll back that some are calling for. The Women’s Rights Caucus is reporting that the Holy See (which is a non-member permanent observer state), Indonesia, Nicaragua, Russia and the Africa group of countries are attempting to limit references to human rights in the final text and critically to remove mention of the role feminist groups play in advancing gender equality from the DeclarationThe Holy See is also advocating the removal of the standalone gender equality target proposed in the Millennium Development Goals from the declaration. The Women’s Rights Caucus and have asked organisations to support its call to stop the Declaration from being watered down.

These are serious attempts to undermine the achievements of Beijing and the MDGs. Removing references to feminist groups is a clear assertion that feminism lack legitimacy in advocating gender equality, that less radical voices are required and that ignoring feminist voices is an acceptable stance for a government to take. Such a retrograde step against one doctrine which has been so fundamental in achieving what has been gained by women is astonishing. Failing to acknowledge past achievements and a future role is a clear attempt to re-write the history of women and to prevent feminism from taking a lead in the future. Whilst women are used to being written out of history, such a blatant attempt to do so within a history about women seem preposterous.

The advocacy of the Holy See, itself a form of doctrine, and the significant role it has a religious group above all other religions, who must rely on states to make their cases, ought to be seriously questioned. Allowing one religion to have such a powerful voice against women’s substantive equality when it is completely dominated by one sex and one view of the role of women should be a serious issue for the UN. The Holy See’s alliance against feminism, the use of human rights and gender equality as fundamental part of development needs also to be queried by those within the Church. The World Bank and IMF, which are currently leading a campaign against the gender pay gap, have repeatedly stated that women’s substantive equality within the workforce will be a strong driver of economic development. Whilst we can question what the World Bank and the IMF regard as development and their past roles regarding gender, their acknowledgement that restricting women’s choices in the workforce has a negative impact on a whole country ought to be a stronger voice than the Holy See.

Whilst the final outcome of the CSW remains open it is frustrating that 20 years after Beijing women must again fight to have their history, rights and development acknowledged, a step we perhaps had thought had already been taken.

20 Years after Beijing: Taking a few steps back?

Is Article 8 ECHR the ‘Feminist Article’?

indexWe are very pleased to welcome this guest post from Helen Fenwick who is Professor at Durham Law School. Helen is an expert in civil liberties, human rights and counter-terrorism law. She is also an expert advisor for Liberty and has been involved in policy development at national and international levels.  This post is also published at Inherently Human

This post concentrates on Article 8 ECHR to argue that it can be viewed as sympathetic to feminist goals since, due to its particular ability to impose positive obligations on the state in relation to creating respect for private or family life, it can require the state to create curbs on the actions of non-state actors particularly adverse to women (eg. in relation to domestic violence: Hajduova v Slovakia) and ensure the efficacy of services that women in particular might need to access, such as to abortion (P&S v Poland). Women are, it is argued, more at risk than men from the actions of non-state actors within the private and family sphere (see intervention of Equal Rights Trust in Eremia and Others v Moldova on this point), so Article 8 has a particular pertinence for women, and unlike Article 14 (the guarantee of freedom from discrimination), which has not proved to have a strong impact as a means of advancing the interests of women due to its reliance on furthering formal equality (see eg Dembour Who Believes in Human Rights, Ch 7), Article 8 can address the substantive concerns of women, without the need for any reliance on a comparator.

Other ECHR Articles are also relevant. Article 3 would also support recognition of positive obligations, (see McGlynn, Clare (2009) ‘Rape, torture and the European convention on human rights’ ICLQ 58 (3)) including in the contexts considered below, although the harm threshold is obviously high. Article 8 currently may be the gateway to Article 14, the freedom from discrimination guarantee (bearing in mind that the UK has not ratified Protocol 12). In other words, if Article 8 is engaged but no violation is found, a violation of Article 14 might nevertheless be found of the two read together (Van Raalte v Netherlands).

Using Article 8 ECHR to advance women’s interests

Under one strand of feminist thinking, it might be argued that the ECHR in general has little to offer women (see, for discussion, Grabham and Hunter ‘Encountering Human Rights’). This is due to a judicial approach to it that values modes of thought that may marginalise women and which pays little attention to ideas about feminist legal method (see Samuels ‘Feminizing  human rights adjudication’), combined with the difficulty of using specific cases to address complex social problems. But, as a number of writers have pointed out, especially recently (see Bauer, ‘Documenting women’s rights violations by non-state actors’), human rights principles can be used as a campaign tool in influencing and mobilising public and community opinion. The use of campaigning methods by feminist advocacy groups, as instanced in the recent successful campaign to remove gender-based hate speech from Facebook, does not preclude mobilising legal channels as a complementary means of disrupting existing social norms adverse to women via deployment of such principles, allowing gender-specific variants of rights’ violations to be recognised. At the same time, the difficulties facing women who seek to use the ECHR should not be under-stated, and Article 8’s protection for family life is gender neutral at face value, meaning that it can also be invoked in ways that could put women and girls at risk by discouraging state actions interfering with family life that are designed to protect vulnerable women (for example, claims by family members convicted of offences relating to domestic violence, including ‘honour’ murder, that post-sentence they should not be deprived of access to surviving family members in furtherance of their family life, as occurred, albeit unsuccessfully, in Ahmad v Brent).

So, in what ways does and could Art 8 especially benefit women and girls?  This blog obviously cannot offer by any means an exhaustive list – each of these matters is complex and has already spawned quite an extensive literature in itself in relation to international human rights’ law – so they can only be touched on here.

Preventing deportation to face adverse treatment based on gender

EM (Lebanon) (FC) (Appellant) (FC) v SSHD concerned a woman who had suffered domestic violence from her husband; as Lord Bingham noted, he had ended her first pregnancy by hitting her on the stomach with a heavy vase, saying he did not want children (para 22). Under Shari’a law as applied in Lebanon, during the first seven years of life, when a male child is cared for by the mother, the father retains legal custody and may decide where the child lives. The transfer to the father at age 7 is automatic: the court has no discretion in the matter and is unable to consider whether the transfer is in the best interests of the child. As a result, Lord Bingham pointed out, women are often constrained to remain in abusive marriages for fear of losing their children (para 24). The evidence was that no family life had been established in Lebanon between the child and his father or his father’s family; it was found that the father had shown no interest in him. The applicant had managed to leave Lebanon with her son and resisted deportation from the UK on the basis of her Article 8 right to respect for family life; as this was a ‘foreign’ case, she had to show that a flagrant violation of Article 8 would arise due to the impact on her family life if she was returned to Lebanon, taking into account that the only family life that had been established was between mother and son. The Lords agreed that on return to Lebanon both the appellant’s and her son’s right to respect for their family life would be flagrantly violated in the sense of being ‘completely denied and nullified’.

Expulsion to face the risk of extremely serious adverse treatment on grounds of gender – ‘honour’ murder (see A.A and others v Sweden) or FGM (Omeredo v Austria) – has been found to fall within Articles 2 or 3. But their status as unqualified or non-materially qualified rights inevitably carries with it the need to show a high threshold of harm, and so places women under serious evidential difficulties, meaning that bringing the claim also under Article 8 (alone and/or combined with Article 14) may be advantageous in such instances.

 Domestic violence – requirement of effective investigations and prevention

 Bevacqva and S v Bulgaria concerned a woman who had been attacked on a number of occasions by her husband and claimed that her requests for a criminal prosecution were rejected on the ground that it was a ‘private matter’. The Court found a violation of Article 8 due to the failure of the state to adopt the measures necessary to punish and control the violent behaviour of her husband. A somewhat similar situation arose in Hajduova v Slovakia; the applicant’s husband had been detained in hospital for psychiatric treatment after he attacked her in public and threatened to kill her. She moved to a refuge with her children. Her ex-husband was released, without having undergone the required treatment, and renewed his threats. Reiterating that Slovakia has a duty to protect the physical and psychological integrity of individuals, particularly vulnerable victims of domestic violence, the Court found a violation of Article 8 in that, although the applicant’s ex-husband had not assaulted her following his release from hospital, her fear that his threats might be carried out was well-founded and the authorities had failed in their duty to ensure his detention for psychiatric treatment. A similar outcome was reached in Kalucza v. Hungary, which concerned Hungary’s failure to protect Ms Kalucza from her violent former partner. The Court found a violation of Article 8 since the Hungarian authorities had not taken sufficient measures to provide her with effective protection against him, despite criminal complaints lodged against him for assault, repeated requests for a restraining order against him, and civil proceedings to order his eviction from their flat.

These cases succeeded under Article 8, although it is readily arguable that some cases of domestic violence should rather raise issues under Articles 2 and 3, as in Opuz v Turkey which concerned the ‘honour’ murder of the applicant’s mother, who had tried to support the applicant, and repeated ‘honour’ crimes in the form of serious assaults and death threats against the applicant. The Court noted that the national authorities were reluctant to interfere in what they perceived to be a “family matter”. Turkey was found to have violated Article 2 due to its lack of due diligence in taking preventive operational measures to protect the life of the mother and, therefore, in failing in their positive obligation to protect the right to life of the applicant’s mother within the meaning of Article 2. Turkey was also found to have violated Article 3 due to its failure to take protective measures in the form of effective deterrence against serious breaches of the applicant’s personal integrity by her husband.

A number of highly significant findings were made in this context in the very recent case of Eremia and Others v Moldova. The judgment found that, while the authorities took some steps to protect the first applicant from her violent husband, a police officer, over a period of time, the steps were not effective and there was reluctance to take the matter seriously enough. In other words, the failures in the case were redolent of the familiar failings in the previous domestic violence cases considered. But not only were breaches of Articles 8 and 3 (on the basis of the state’s positive obligation to protect persons from inhuman treatment) found, but the Equal Rights Trust, intervening, persuaded the Court to treat domestic violence as a form of gender-based discrimination under Article 14 read with Article 3.  The second and third applicants were the daughters of the first applicant; they complained successfully under Article 8 of the psychological effects of witnessing their mother being physically and verbally abused at their home, while being unable to help, and of verbal abuse on the part of A. The decision represents an important breakthrough in this jurisprudence since the gendered nature of domestic violence – its disproportionate and particular impact on women – was recognised under Article 14, as was the impact of such violence on children forced to witness it, under Article 8.

 Recently in the UK, the IPCC reported adversely on the police investigation into the murder of Maria Stubbings who was strangled in Chelmsford, Essex, in December 2008 by her former boyfriend, Marc Chivers. Essex police knew he had killed before, and that he had served time in prison for assaulting Stubbings, but the IPCC found that they had failed to recognise the seriousness of the danger to her. As a number of journalists have recently pointed out, the Macpherson inquiry found that the police had failed “to provide an appropriate and professional service” with “processes, attitudes and behaviour” harmful to the minority ethnic community when it reported on the murder of Stephen Lawrence. Maria Stubbings’ family have called for a similar inquiry into failings in police investigations into domestic violence. The threat and actuality of a possible action under Articles 8, 2, and 3 domestically or at Strasbourg, based on the jurisprudence cited, would be likely to aid campaigns focussing on this issue.

Upholding access to abortion

The recent jurisprudence on abortion at Strasbourg has had some moderate success in alleviating harm to women, by invoking Article 8 (and in some instances Article 3 in RR v Poland and P&S v Poland). The claims so far have been brought against Poland and Ireland (ABC, RR and P&S), but cases against other states are in the Strasbourg system (for example, Z v Moldova). This is not the place to discuss this developing jurisprudence in detail, except to make two points. Poland purports to allow abortion in certain narrow circumstances but, in practice, on religious grounds, places obstacles in the way of obtaining it (RR para 84-86), while Ireland has a virtual prohibition with a narrow exception where there is a serious risk to the life of mother. The suffering of the applicants, especially in the Polish cases so far, has tended to be of a very serious nature (see, eg. Tysiac v Poland, where a complication with pregnancy resulted in blindness). Although Ireland’s current virtual complete prohibition on domestic abortion is largely ineffective due to the availability of abortion in England (ABC), it has been linked to extreme suffering in exceptional circumstances, including the tragic death of Savita Halappanavar. This position underpins the paradox of the current jurisprudence which is that cases against Poland are more likely to succeed despite its more liberal regime, since the Court can avoid a full confrontation with Ireland’s Constitutional provision of equal protection for foetal and maternal life.

The recent case of P&S v Poland, the first Strasbourg case on rape-induced pregnancy, graphically illustrates what is wrong with Polish practice on abortion. The first applicant, P, was a 14 year old girl who became pregnant as a result of rape. She therefore had a legal right to an abortion under Polish law. However, when, supported by her mother, S, she sought to access an abortion in practice, she faced a range of obstructions. The hospital that P approached disclosed her personal and medical information to the media, and the public generally. As a result, she was harassed by anti-abortion activists and representatives of the Catholic Church. She went to three different hospitals but could not obtain genuine information about the requirements for obtaining an abortion. Doctors invoked conscientious objection against performing the abortion and failed to refer P to another hospital. The stance was taken by anti-abortion hospital staff and Church officials, falsely, that S was trying to pressure P into having an abortion against her will. As a result, when P and S sought police protection from anti-abortion activists, the police instead arrested P, removed her from S’s custody and placed her in detention (paras 17, 26, 28 and 29). After delays, P eventually received a legal abortion following an intervention from the Ministry of Health, but she received no post-abortion care (para 41). The Court relied on Tysiąc and RR to reaffirm under Article 8 that once a State has adopted statutory regulations that allow abortion in specified situations, it comes under a duty to make the access available in practice. The Court found a breach of Article 8 on the basis of ‘a striking discordance between the theoretical right to… an abortion…and the reality of its practical implementation’ (para 111).

The situation in Poland may appear to be far removed from that in the UK (apart from in Northern Ireland), but given current attempts to undermine the principle of safe legal abortion by making access to abortion more difficult – in particular by allowing pro-life groups to become involved in counselling abortion-seekers (proposed by Nadine Dorries) and greater protection for conscientious objection (confirmed in a recent case involving Catholic midwives).

Conclusions

This blog has suggested that the guarantee of respect for private and family life under Article 8, taking account of relevant Strasbourg jurisprudence, is leading to developments in human rights principles that reduce gender-based harm to women. A pervasive pessimism in some feminist thinking on the potential of the ECHR to address and reduce such harm may have obscured the potential of such developments, which are also very recent. This blog suggests that a pessimistic view of the ECHR’s potential (and Article 8’s in particular) to aid women who have been let down by courts and legislatures in their own states, should be revisited.

Is Article 8 ECHR the ‘Feminist Article’?

Ireland's First SlutWalk to Take Place in Galway

The first “SlutWalk” happened earlier this year in Toronto in response to a Canadian police officer’s comment that women should avoid dressing like sluts in order to reduce the likelihood of being raped.  See here.  The march in Toronto protested against these comments and challenged the suggestion that women through their clothing invite sexual violence.   Since the Toronto SlutWalk there have been a number of similar protests in EnglandWalesScotlandSouth AfricaSwedenAustralia, the United States, the Netherlands and New Zealand.  It has been reported that Galway will host Ireland’s first SlutWalk on October 5 from 1-4 pm  (organised by the NUI Galway Student Union).  See here.

Prejudice still undoubtedly exits in relation to female victims in criminal cases involving sexual violence.  In that regard the myth still dominates that clothing worn by female victims may indicate that they were looking for sex.   The core message that the SlutWalk protests are trying to communicate is that women are never responsible for crimes of sexual violence and it is wholly wrong to use their clothing in explaining sexual violence.  While the vast majority of people would agree with this Continue reading “Ireland's First SlutWalk to Take Place in Galway”

Ireland's First SlutWalk to Take Place in Galway

Launch of feminists@law

The editors of feminists@law, a new, peer-reviewed, online, open access journal of feminist legal scholarship warmly invite you to visit the journal’s website at http://journals.kent.ac.uk/index.php/feministsatlaw

In the first issue

The first issue features an article on the association between feminist and open access movements by Carys Craig, Joseph Turcotte and Rosemary Coombe; reflections by Drucilla Cornell on the 20th anniversary of the publication of Beyond Accommodation: Ethical Feminism, Deconstruction and the Law; thoughts on current and future agendas for feminist legal studies from Africa, Europe, North and South America and Australia; and a video of a roundtable discussion  with Brenna Bhandar, Julia Chryssostalis, Elena Loizidou and Janice Richardson on the ‘past’, ‘present’ and ‘future’ of feminist legal scholarship.

Continue reading “Launch of feminists@law”

Launch of feminists@law

Brief Feminist Notes on Budget 2011

Recession affects men and women, but not always in the same ways or to the same degree. Often, the effects of recession on women as a class are more severe than the effects of recession on men. When governments enact policies which fail to take account of how the ‘pain’ of economic collapse is distributed across gender lines, they may reinforce rather than alleviate these specific burdens. ‘We’ are not in this ‘together’. Women, by and large, are in deeper. These aren’t especially controversial claims. Some of the supporting arguments I might make I made last year here and others are well outlined in the NWCI’s 2011 Pre-Budget Submission. For more in-depth research on gender and the global recession see herehere and see these papers from the Feminist Open Forum conference in March. Before I go any further I want to answer a question that some of you may already be thinking of: ‘What about men?’

Continue reading “Brief Feminist Notes on Budget 2011”

Brief Feminist Notes on Budget 2011

Weekend Reading: Otto on Feminism in International Law

In an article published last year entitled, ‘The Exile of Inclusion: Reflections on Gender Issues in International Law over the Last Decade’ , Prof. Dianne Otto of Melbourne Law School, discusses the impact of feminism within international law.  In the article Prof. Otto deliberates on the spread of feminist ideas within the UN system while also cautioning against undue optimism. Prof. Otto discusses the selective use of feminist perspectives with little accountability and the danger in the expansion of Security Council power.

As feminist ideas make their way into legal texts and places of power, they can become tools of powerful actors committed to maintaining the gendered status quo, at the same time as opening up new possibilities for progressive change

The article is available to download here.  (2009) 10 Melbourne Journal of International Law 26

Weekend Reading: Otto on Feminism in International Law

UBaltimore Fourth Annual Feminist Legal Theory Conference – Call for Papers

The University of Baltimore School of Law’s Center on Applied Feminism seeks submissions for its Fourth Annual Feminist Legal Theory Conference, to be held in March 2011.  This year’s theme is “Applying Feminism Globally.”

This conference seeks to explore how feminist legal theory operates in a global and international context.  The theme raises a variety of questions:  How has feminist legal theory affected the lives of women across the globe?  How could feminist legal theory improve women’s lives in a global context?  How does feminist legal theory differ across cultures within and outside the United States?  What do comparative perspectives teach us about feminist legal theory?  How could feminist legal theory from outside of the United States benefit American women and feminist scholarship? How do anti-essentialist perspectives on feminist legal theory apply in an international context?  How do post-colonial perspectives on feminist legal theory apply in a domestic context?  What can feminist legal theory contribute to the debate over universal vs. cultural specific norms and objectives?  Is feminism still ambivalent about many areas of international law?  What, if any, role has feminism played in the empowerment of women in international law-making?  Can feminist legal theory improve our understanding of challenges facing immigrants within our own borders?   What does feminist legal theory offer for indigenous peoples?  How are human rights norms compatible with feminist legal theory? Continue reading “UBaltimore Fourth Annual Feminist Legal Theory Conference – Call for Papers”

UBaltimore Fourth Annual Feminist Legal Theory Conference – Call for Papers