Violence against women, feminist theory, and the United Nations human rights treaty bodies

Abstract

Drawing on feminist theories of international law, this thesis critically examines how women's lives, particularly the violence they face, have been understood and responded to in the international human rights jurisprudence of the United Nations human rights treaty bodies. My aim is to connect feminist theories to the practice of these international decision-making bodies. These bodies have adopted two main strategies to include violence against women within the existing human rights framework: the first, to conceptualise violence against women as a form of sex discrimination and second, to creatively interpret existing human rights so that the experiences of women are included. Discussion of the latter strategy is centred on the right to life and the right to be free from torture and other cruel, inhuman, or degrading treatment or punishment. These strategies have developed because there remains no universally agreed binding treaty norm explicitly prohibiting violence against women and form part of the UN's 'gender mainstreaming' agenda. As pragmatic responses to gaps in the law, I acknowledge that these strategies have been both conceptually and substantively powerful for the advancement of women's rights, including putting violence against women on the international human rights agenda. However, rereading existing provisions to apply them to the specific circumstances of women has had mixed results, carries its own problems and limitations, and ultimately serves to continue to treat women unequally under international law. A common thread of the treatment of the three rights studied in this thesis is that women's experiences are seen as an exception to the main or general understandings of those particular provisions. That is, women are seen as a deviation from that standard and as an exception to the rule. The practical effect of holding women to the same standards as men de jure is to impose additional burdens on women de facto. Put another way, women need to convince international bodies that what has been done to them is worthy of international attention, by either equating it to harm normally perpetrated against men and incorporating their experiences into provisions designed with the experiences of men in mind (and thereby reinforcing sexual hierarchies), or justifying why their experiences 'deserve' the establishment of an exception to the rule (and thereby exceptionalising and 'essentialising' the experiences of women). I argue that the effect of these processes is to treat women unequally under international law, to support the gender bias in the system, and to prevent any deeper transformation. It can thus be seen that international human rights law has shifted from a period of excluding women from mainstream human rights, an exclusion that characterised its first 50 years, to a stage of rhetorical inclusion, albeit one of continuing inequality.