UN Women: Symbolism or Agent for Change?

As noted by IntLawGrrl Stephanie Farrior here, it was announced this week that former Chilean President, Michelle Bachelet (left) is the new UN Under-Secretary General and will lead the UN Entity for Gender Equality and the Empowerment of Women, known as UN Women. In this post I want to both outline the structure of the agency and consider why such an agency is required within the UN. While the establishment of UN Women is to be welcomed, questions necessarily arise as to whether or not it will stand as a symbolic commitment to gender equality and the advancement of women and girls or whether (as I hope will be the case) it will really operate as an agent for change to improve the lot of women and girls around the world.

The UN General Assembly -- which, as IntLawGrrl Amy Senier then reported, had adopted a resolution in this regard about a year ago -- established UN Women in July, as part of the organisation’s ongoing reform agenda. Described on its website as “an historic step in accelerating the Organization’s goals on gender equality and the empowerment of women”, UN Women is a new agency that merges four UN organisations: the Division for the Advancement of Women, the International Research and Training Institute for the Advancement of Women, the Office of the Special Adviser on Gender Issues and Advancement of Women, and the UN Development Fund for Women. Bringing these organisations together, UN Women will not only help to co-ordinate the work undertaken within the organisations but will also constitute a large and broad-ranging internal agency of the UN that can impact on the organisation’s wide range of work.

The establishment of UN Women will not, as far as I can tell, result in gender experts within different parts of the UN from being appointed (such as Professor Catharine MacKinnon’s role as Special Gender Adviser to the Prosecutor of the International Criminal Court); neither does it preclude the appointment of special rapporteurs to consider gender aspects of particular issues under consideration by the UN where this is thought appropriate. It should therefore be seen as a consolidation and, indeed, expansion of the gender equality mechanisms within the UN.

According to its website, UN Women has three stated aims:

► To support inter-governmental bodies, such as the Commission on the Status of Women, in their formulation of policies, global standards and norms;

► To help Member States to implement these standards, standing ready to provide suitable technical and financial support to those countries that request it and to forge effective partnerships with civil society; and

► To hold the UN system accountable for its own commitments on gender equality, including regular monitoring of system-wide progress.

This marks an important further step in the full integration of women and, indeed, more generally of gender-consciousness into the work of the United Nations.

The exclusion of women from the originating processes of international law and of the United Nations has been extensively commented on elsewhere, most authoritatively perhaps by Hilary Charlesworth, an IntLawGrrls guest/alumna, and Christine Chinkin in their immensely important monograph on The Boundaries of International Law: A Feminist Analysis (2000). Excluding women from the founding processes of the United Nations resulted in a lack of perspective on the distinctive and particular ways that laws, states and inter-state relationships can impact on women and girls. It also resulted in the occlusion for a long period of time from human rights law of the realities of women’s experiences. This was not exclusive to human rights law, of course; women were traditionally excluded from essentially all areas of international law and interested readers will find the Charlesworth & Chinkin analysis illuminating and, perhaps, depressing. The focus of this post, however, is on human rights law.

While it is of course true that women and girls do not exclusively experience gender-based violence, sexual violence, discrimination and exclusion, it is equally true to acknowledge that women and girls experience these conditions more than men and boys do and that this is related to persistent and pervasive social and legal conditions that disadvantage women. The UN human rights system cannot be accused of having remained in its ‘original’ masculine state; it has over time developed a number of agencies, resolutions, institutions and Conventions that focus specifically on the conditions of life as they are experienced by women. This has been an especial focus of the UN Convention on the Elimination of All Forms of Discrimination against Women and its enforcement mechanisms, but also by a commitment (met to a greater or lesser extent in different situations) to consider the impact of policies, laws and conditions on women and girls. However, CEDAW is not enough on its own: not only is CEDAW not universally ratified and implemented in domestic law, but the extent to which States have entered reservations to important (if not in fact foundational) provisions within the Convention has long been a source of comment.

In addition, an enormous international organisation such as the United Nations is in need of a gender perspective—if not a kind of internal gender watchdog—as is any state or large organisation. It is therefore entirely fitting that UN Women would commit, as it does, to holding “the UN system accountable for its own commitments on gender equality”. This will include not only monitoring of the UN’s institutional progress on gender equality but also, it seems, ‘gender auditing’ proposals from UN bodies and assisting states in the important work of actually operationalising the UN’s standards.

It is heartening to see reference in the above-quoted aims to the provision by UN Women of “suitable technical and financial support to those countries that request it”, but the wording of this aim does give rise to a number of questions:

► Are states where gender inequality is systemic and where women’s rights standards of the UN are not being implemented really likely to “request” the support of UN women?

► Even if they do, will the agency be sufficiently supported in terms of finance, personnel and logistics to provide adequate “technical and financial support” to help those countries to move towards more effective standards of gender equality?

These are questions that cannot reasonably be answered until we have seen UN Women in operation for some years, but it is difficult to not feel some cautious impulses in considering the likely success of the agency. It is also to be hoped that in deciding how to “to forge effective partnerships with civil society”, UN Women will apply gender equality criteria in selecting its civil society partners, including the effective representation of women within the organisations themselves.

None of these notes of caution are intended to under-play the importance of the establishment of UN Women; this is a genuinely welcome development and one that it is hoped will make real progress in advancing the rights of women and girls, and the cause of gender equality, in and through the United Nations. However, until we see how it operates (and, indeed, is facilitated by the wider UN bureaucracy and the member states) UN Women stands as a symbol of the world’s commitment to gender equality and, without sounding too pessimistic a closing note, more symbolism is the last thing the world’s women need. Action, effective commitment, implementation of CEDAW and genuine progression towards gender equality in all areas of human rights protection—civil, political, social, economic and cultural—are much more urgently required.

(Cross posted from Human Rights in Ireland blog)

Guest blogger: Mary Hansel

It's IntLawGrrls' great pleasure to welcome Mary Hansel (right) as today's guest blogger.
Mary is a litigation attorney and Legal Fellow with the International Center for Transitional Justice, where she has focused on issues of U.S. accountability for torture and other detainee abuses.
She received her B.A. in Psychology from Vassar College and her J.D. from the University of Southern California Law School. She then earned her LL.M in Public International Law at the London School of Economics; Professor Christine Chinkin supervised Mary's dissertation.
Mary has published several scholarly articles on international law and human rights. She recently contributed a chapter for the forthcoming book Feminist Perspectives on Transitional Justice (Intersentia, 2011), to be edited by Professor Martha Albertson Fineman, Robert W. Woodruff Professor of Law at Emory University in Atlanta, and Dr. Estelle Zinsstag, Director of the Africa Justice Project at the Oxford War Crimes Centre.
In her guest post below, Mary surveys jurisprudence that supports recognizing domestic violence as torture. She dedicates her post to Rhonda Copelon, already an IntLawGrrls foremother. Copelon's work, Mary writes,

broadened my thinking on women’s rights.

Heartfelt welcome!

'Nuff said

(Taking context-optional note of thought-provoking quotes)

But above all, I accepted because I believe deeply in the rule of law and the laws of war, and the principle that in armed conflict civilians should to the greatest extent possible be protected from harm.

-- Richard Goldstone (right), former Chief Prosecutor at the International Criminal Tribunals for the former Yugoslavia and Rwanda and former Justice of South Africa's Constitutional Court, in Justice in Gaza, an op-ed discussing his recent service as head of the U.N. Fact-Finding Mission on the Gaza Conflict. Commissioners -- Goldstone, LSE Professor Christine Chinkin, Pakistan Supreme Court Advocate Hina Jilani, and Irish Colonel Desmond Travers -- issued a report to the Human Rights Council (newest member: USA), finding war crimes on both sides, in mid-September. The report's available in full here.

Landmark Domestic Violence Judgment by European Court of Human Rights

In a landmark decision, the European Court of Human Rights has unanimously found that a state violated the human rights of the applicant and her mother in failing to protect them against domestic violence. In Opuz v Turkey, discussed in a previous post on IntLawGrrls, the applicant alleged that the state bore responsibility under the European Convention on Human Rights for its failure to take action against her violent husband who repeatedly attacked her and killed her mother.
The European Court had previously found state responsibility in a domestic violence case in Bevacqua and S. v. Bulgaria (2008), grounding its decision in article 8 (right to respect for family life) of the European Convention. In Opuz v Turkey, however, the Court found violations of:

• the right to life (art. 2) "in respect of the death of the applicant's mother"


• the prohibition of torture (art. 3) "in respect of the authorities' failure to protect the applicant against domestic violence perpetrated by her former husband"


• and -- significantly -- the right to non-discrimination on the basis of sex (art. 14). It explicitly recognized domestic violence as a form of gender discrimination that gives rise to state responsibility.

Regarding the latter, the Court found:

the existence of a prima facie indication that hte domestic violence affected mainly women and that the general and discriminatory judicial passivity in Turkey created a climate that was conducive to domestic violence ...
the criminal-law system, as operated in the instant case, did not have an adequate deterrent effect capable of ensuring the effective prevention of [domestic violence] ...
Bearing in mind its finding above that the general and discriminatory judicial passivity in Turkey, albeit unintentional, mainly affected women, the Court considers that the violence suffered by the applicant and her mother may be regarded as gender-based violence which is a form of discrimination against women. Despite the reforms carried out by the Government in recent years, the overall unresponsiveness of the judicial system and
impunity enjoyed by the aggressors, as found in the instant case, indicated that there was insufficient commitment to take appropriate action to address domestic violence.

Read the Court's decision here.
Watch the Court hearing in the case in October 2008 here.
A report issued in May 2009 on the Caselaw of the European Court of Human Rights on Violence against Women, prepared by Christine Chinkin, is available here.

4 Societies, 5 countries, 15 scholars & 1 address on the International Law Commission

Among the treats at 4 Societies: An insider's view of the International Law Commission.
4 Societies Workshop is the name given to the biennial scholars' roundtable cosponsored by a quartet of international law societies. The 1st took place in 2006 at Victoria University of Wellington, courtesy of the Australian and New Zealand Society of International Law. Thanks to the hard work of Professor Joanna Harrington and Professor Craig Forcese, both members of the Canadian Council of Law, the University of Alberta in Edmonton last week hosted the 2d. (Next stop, courtesy of the Japan Society of International Law: Kobe 2010.) Fifteen scholars from 5 countries presented in Edmonton (above); it was my honor to serve, along with American Society of International Law Executive Director Elizabeth Andersen, as a moderator and commenter.
Of special interest was the keynote address in which University of Ottawa Law Professor Don McRae, who'd been elected to the ILC in 2006, asked:

Is there a future for the International Law Commission?

A future, yes, he answered. But not necessarily the future foreseen when the ILC was established in 1947.

McRae began by listing some of the topics on the ILC's agenda:

► New draft articles on transboundary aquifers, about which IntLawGrrls just posted;

► A long-running study of treaty reservations;

► A study of how armed conflict affects treaties;

► Examination of whether the duty aut dedere aut judicare -- to prosecute or extradite -- derives solely from treaties or has become a norm of customary international law;

► A project on the responsibility of international organizations;

► Analysis of the law respecting the expulsion of aliens across state borders;

► Consideration of the immunity of state officials in the wake of cases like Pinochet and Democratic Republic v. Congo; and

► Examination of the extent to which law protects persons caught up in natural disasters like typhoons and earthquakes; that is, whether other states may intervene when the territorial state refuses to assist its own suffering nationals, as occurred earlier this year in Burma/Myanmar.

For most of its existence the Commission approached such problems always with an eye to codification -- to the drafting of treaties that would establish international rules as hard law. That goal seems more elusive, McRae said. Positing that the world is going through an "anti-treaty phase," during which "governments don't want to commit themselves to making things legally binding," McRae suggested that the ILC may find itself more and more in the business of creating soft law. He noted that draft articles articulating principles of law that states may choose to follow, like those on state responsibility and transboundary aquifers, are likely to have more global influence than a treaty that never enters into force.

McRae pointed to 2 other areas ripe for adaptation:

► Methodology. The Commission's work could be improved, he said, by greater consultation with experts outside the law. In this regard he lauded the outreach that Commissioner Chusei Yamada of Japan made to scientists in the course of developing the aquifer articles.

► Diversity. Anyone familiar with the pathbreaking work of Hilary Charlesworth, Christine Chinkin, and Shelley Wright will recall that in Feminist Approaches to International Law, 85 American Journal of International Law 613, 623 (1991), they underscored that no woman ever had sat on the 34-member Commission. That has changed a wee bit. Today there are 3 women Commissioners, Paula Escarameia of Portugal (above, middle), Marie G. Jacobsson of Sweden (above, left), and Hanqin Xue of China (right)-- a fact that prompted McRae's allowance that criticism of the ILC as lacking diversity "has a great deal of credibility in terms of gender."

Indeed.