Women's Human Rights Resources Database

The author focuses on human rights aspects of the UN Trafficking Protocol. She notes that much of the discussion regarding human trafficking of women has focused on sex work and the issue of consent. In order to better protect the human rights of trafficked persons and to formulate a series of options for trafficking legislation that are not encumbered by the shortcomings of myopic attention to consent, she argues that the discussion should be broadened to consider other economic and social factors. After an analysis of both sides of the consent debate, she proposes an alternative trafficking definition that centers on illicit transport or harbouring of a person for unregulated or improperly regulated forms of labour.

This theoretical article presents the argument that the domestic implementation of international human rights norms depends on the rule of law governing in the state. To effectively enforce international human rights conventions, the goal of the international community should be to ensure that the rule of law is respected and an independent and effective judiciary exists within specific countries. The example of Cameroon is used to illustrate the argument. Human rights violations in Cameroon have been triggered by the breakdown of the rule of law and the absence of an independent judiciary to sanction government officials who perpetuate these violations. [This article does not specifically address women's rights.]

The author argues that international human rights scholars and advocates, unlike their domestic counterparts, have paid little attention to the role that context and culture play in shaping the meaning of a given text. This author therefore suggests that international human rights scholars should become familiar with the hermeneutic philosophy of Hans-Georg Gadamer because Gadamer expounds a theory of language that recognizes the authority of international texts while accommodating variations in interpretation between national jurisdictions or various cultures. The paper is divided into several parts. The first part provides a brief overview of the debate concerning international law's use in domestic courts in so far as the debate engages the place of culture within interpretation. The second part critiques the traditional model of interpretation assumed by proponents of the debate. The third part addresses the interpretive community model of meaning that developed in reaction to the traditional model. The fourth part turns to Gadamer's book, "Truth and Method", and explains why Gadamer's work represents a welcome alternative to both the traditional and interpretive community models. The Nigerian Court of Appeal's decision in Muojekwu v. Ejikeme, a case involving women's inheritance rights, is used throughout to ground the analysis.

This article discusses how human rights are being used to advance women's right to reproductive health. Part II discusses the intersection between human rights and advancing women's reproductive health. This is followed by a short overview of the United Nations treaty monitoring system, in Part III, and an examination of some of the major international treaties along with how they relate to women's health and human rights. Part IV then focuses directly on the International Covenant on Civl and Political Rights (ICCPR) and how it can be used to promote women's reproductive health, focusing specifically on the fundamental 'right to life'. Part V discusses how the Human Rights Committee (HRC) can improve the quality and clarity of its Concluding Observations when monitoring state compliance with the ICCPR to more effectively monitor the protection of women's right to life. [Descriptors: Applying Human Rights Law - International, International]

In a previous article, the authors argued that the "modern position"- that customary international law has the domestic legal status of federal common law- is inconsistent with American representative democracy and federalism. This Article expands on this previous work: "Part I briefly summarizes our thesis and explains why the legitimacy of human rights litigation is what is really at stake in debates over the modern position. Part II responds to criticisms of certain of our historical and constitutional claims. Part III considers whether the judicial treatment of international human rights law as federal law can plausibly be justified, independent of the modern position, by the Alien Tort Statute and the Torture Victim Protection Act. We conclude that it cannot. The federal political branches can authorize international human right litigation if they wish. But with narrow exceptions, they have not done so thus far. Until they do, international human rights litigation rests on a tenuous legal foundation." [this article does not address litigation of women's human rights specifically.]

This theoretical article discusses the domestic enforcement of international human rights and the theoretical footings of their legal authority. The author distinguishes between international conventions that represent a fusion of national interests and so require transformation to become domestically effective, and those that embody principles of practical reason already incorporated in the general will. He argues that the transformationist doctrine is applicable only to covenants that are products of executive discretion. A number of treaties have been concluded whose object is a transcendent common good of the human community. The transformationist doctrine has no logical relevance to these covenants as they do not pose a significant threat to sovereignty. He distinguishes between international human rights rules and principles. Human rights principles do not require confirmation by legislatures and may be properly considered not only in interpreting constitutional guarantees of human rights, but also as guides to the elaboration of the common law and as constraints to the operation of rules of decision. [The focus of this article is not specifically women's rights.]

This article addresses the concept of "gender mainstreaming", a movement that sought to replace the somewhat separate status afforded to "gender" in the United Nations system. The premise behind gender mainstreaming is that gender must be taken seriously as part of the mainstream "normal" institutional activities of the UN and other international bodies rather than left to peripheral, specialist women's institutions. In this article, the author challenges the bureaucratic methods of gender mainstreaming in international institutions, arguing that such an approach detracts from the way sexed and gendered inequalities form part of the fabric of the international system. The author argues that, in this way, gender mainstreaming has effectively drowned out the voice of the equality project. [Descriptors: Applying Human Rights Law - International, International]

This article argues that human rights law has been the most accessible and receptive area of international law for women because it explicitly acknowledges the challenges faced in women's lives, albeit in a limited fashion. The author sets out the three categories of treaties pertaining to women: protective, corrective and non-discriminatory. Next, she discusses non-discrimination treaties - first, treaties in general and, second, women-specific instruments. Finally, the author turns to the inadequacies of general human rights law for women due to (a) marginalization and (b) cultural relativism. She concludes that women's human rights are still not afforded the same importance or prominence as the human rights of men. Although women have achieved some recognition in the international system for the protection of human rights, international law does not essentially provide an adequate response to the situation of women globally.

This paper addresses the application of international human rights law to women, using cases of alleged discrimination based on sex or marital status, arising under international, regional, and specialized treaties, including the International Covenant on Civil and Political Rights (ICCPR) and the European Convention on Human Rights (ECHR). The author assesses the extent to which such discrimination interferes with the right to enjoy private or family life, attain resident status, receive social security, and receive equal protection of the law. Then she reviews other legal instruments that may provide opportunities to apply human rights principles to the advances of women. The author asserts that courts have not yet fully recognized women's human rights, in part due to the entrenched perceptions of women's role in society that may cause courts to view discrimination merely as differential treatment based on an "objective and reasonable criteria". The author urges the expanded use of international, regional, or national fora to ensure that women's actual human rights are consistent with the conception of those rights as expressed in the Universal Declaration of Human Rights (UDHR). [Descriptors: Applying Human Rights Law - International, International]

This article highlights the increasing importance of women's concerns in the international human rights field and briefly discusses the advances and limitations of the Beijing Platform for Action (PFA). The author argues for the need to ensure domestic implementation of the PFA through activism and through the development of scholarship on women's international human rights. [Descriptors: Applying Human Rights Law - International, World Conferences, International]

This article identifies and discusses the two mechanisms established under the United Nations system to protect and promote the equality of women. These two regimes consist of policy prouncements, through the work of the Commission on the Status of Women, and treaties, particularly the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). The article reviews and discusses the history and methods of both the policy and treaty-based approaches. The article argues that the two regimes are not mutually exclusive, and that it is in fact necessary to have the two systems operating in tandem as both address different aspects of the UN objective of achieving gender equality. [Descriptors: Applying Human Rights Law - International, International]

This article explores the implications of viewing undocumented migrant women through the lens of public international law, particularly European human rights law. It argues for the incorporation of the UN normative and interpretative framework on the human rights of undocumented migrants into European legal and judicial analysis. The UN legal architecture constitutes an essential component to better understand the transnational phenomenon of migration in an interrelated world with combined and overlapping legal regimes. These instruments crafted within the realm of public international law may also play a key orienting role for the European Court of Human Rights to adequately uphold the rights of (female) undocumented migrants and for States to attend more justly to the dire conditions of many undocumented migrant women and girls in Europe.

This article begins with a review of the value of using law and legal systems to improve women's status. The second section examines issues involved in developing the human rights construct in domestic legal systems. These issues include establishing the principle of nondiscrimination, using nationally based definitions of human rights, invoking constitutional human rights norms, and referring to international instruments and legal developments in other countries. In the final section of the paper, the author presents three strategies for using human rights norms in national legal systems: using the courts, addressing other branches of government, and developing the women's rights construct through applied research. In elaborating on these strategies, the author gives examples from African countries, including cases from Botswana, Tanzania, and Kenya, law reform examples from Zimbabwe. Several of these examples deal with African Indigenous women accessing their rights.

The pre-negotiation of UN human rights treaties has much in common with other types of pre-negotiations. The pre-negotiation stage allows participating states to respond to domestic state and non-state actors. The pre-negotiation process of the Convention on the Rights of Persons with Disabilities (CRPD) reveals that states engage in structuring activities to reduce uncertainty. Reducing uncertainty surrounding negotiations is central both in the literature and in the case. A more robust explanation of 'successful' pre-negotiation of UN human rights treaties through a detailed comparative examination is needed to establish a more robust theory tailored the unique experience of pre-negotiating UN human rights treaties. 

Starting from the premise that the protection and promotion of the rights encompassed in the International Convention on Civil and Political Rights (ICCPR) depends on their reception into domestic law and the remedies provided for under the domestic legal system, this article examines the domestic implementation provisions of the Covenant as a matter of State practice. It includes discussion of the history and incorporation doctrine in different states, the time element and implementation procedure, and important factors such as judicial and administrative infrastructure, along with the general standard of living. [This article does not focus specifically on women's human rights.]

Mr. Justice Kirby writes about his personal experience at the Bangalore Judicial Colloquium on the domestic application of international human rights norms and his awakening to the use of international human rights in domestic cases. The paper addresses difficulties with using international norms in domestic cases, including issues of authority, principles and division of powers (i.e. executive and legislative). It also discusses international law as a source of law, the Australian experience 'post-Bangalore' and the Mabo decision. [This article does not specifically address women's rights. Other annotations relating to the Bangalore Judicial Colloquium can be found in this section of the site. "The Bangalore Principles" are published in 14 Commonwealth Law Journal, 1196 (1988) and 62 Australian Law Journal 531, (1988).]

Noting that in the growing discourse on domestic implementation national-level courts are reduced to simple enforcers of international law, this Article explores the interpretive trends and theoretical possibilities of using international law in judicial reasoning. Using the Canadian case of Baker as an illustration, the author explores the traditional model of international law in domestic courts, which focuses on bindingness and all-or-nothing application, and transjudicialism, in which the authority of international law is persuasive rather than binding. She suggests that these models need to be questioned because they are too simple and they overlook the possibility of domestic interpretation as a means to particularize and justify international law. She concludes that: "One way to begin this inquiry is, ironically, to make foreign the law that international lawyers have long tried to make familiar. By recognizing the similarity of international law and foreign law as the translation of norms from "elsewhere", we not only see the shape of the problem more clearly, but also are able to learn from comparative law's theorizing of solutions."

In this lecture, Harold Koh addresses three questions: firstly, what does it mean to ask 'why do nations obey - as opposed to simply comply - with international law?'; secondly, how precisely do nations "internalize" or "domesticate" international law; and thirdly, how does understanding this process of internationalization help us to understand and promote national obedience to international norms? [While this article does not address women's human rights, it has been included on the WHRR because of the contribution it makes to the debate on the domestic implementation of international law. For one of several responses to this article see Robert Keohane, When Does International Law Come Home? 35 HOUSTON LAW REVIEW 699 (1998).]

This article advocates that peacetime rape committed by a private actor should be viewed as a violation of international human rights. Furthermore, the victims should be able to bring actions in the U.S. federal courts under the Alien Tort Claims Act (ATCA). Part II examines the history of rape in armed conflict and wartime, focusing on the recognition of rape as a war crime. Part III discusses current international human rights violations and argues that rape should be included in this list. Part IV provides an account of the rapes that occurred during the Indonesian riots of 1997. Part V of the paper discusses the justiciability of the Indonesian riots in the U.S. courts under the ATCA. Finally, Part VI concludes that the United States should recognize peacetime rape by private actors and allow the victim recourse under the ATCA.

This remark is a revised version of a presentation delivered at the Conference on the Rehnquist Court at the University of Tulsa, September 1998. It discusses how globalization is effecting the process of judging and lawyering, how more and more courts and looking to the judgements of other jurisdictions, particularly when making decisions on human rights issues. As courts look all over the world for sources of authority, the process of international influences has changed from one of reception of cases from other jurisdictions to one of cross-pollination and dialogue between jurisdictions. Justice L'Heureux-Dubé evaluates the role of the United States Supreme Court under Justice Rehnquist in this international dialogue, reviewing its impact on other jurisdictions and its use of foreign case law. (The author is a judge on the Supreme Court of Canada.)

Despite global and regional promotion of human rights, the United Nations consistently receives reports of human rights violations which cast doubt upon the commitment of many member nations. One specific area of violation and questionable commitment on the part of states is that concerning the rights of women. Even the regional instruments purporting to give effect to the obligation to promote human rights and fundamental freedoms, which states assumed under the U.N. Charter, pay only passing attention to the issue of human rights. This article examines the Banjul Charter on Human Rights and Peoples' Rights. It evaluates the extent to which it accords recognition to the human rights of women. Emphasis is placed on the relationship between the recognition of the ights of women and the prospect for the socio- economic development of Africa. This article first reviews currently recognized women's rights and appraises those rights in light of the objectives they seek. Second, this article provides an analysis of the commitment that African states have to women's rights and will indicate the effect that current recognition of these rights will have on the socio-economic development of Africa.

"Despite its substantial compliance with international human rights obligations, Canada lacks a systemic means of transforming treaty law into domestically enforceable legislation. This article identifies several agents capable of advancing domestic compliance with international human rights agreements, and discusses their current and potential influence on domestic legislation in Canada and elsewhere, particularly the United States." [This article does not focus specifically on women's human rights.]

This paper discusses the treatment of Aboriginal women in the Correctional Services of Canada (CSC) within an international human rights context. The author posits that the discriminatory treatment of Aboriginal women in Canadian federal prisons amounts to a breach of CEDAW. The paper investigates the sexist and racist treatment of Aboriginal women in this context, drawing on research and factual reports. The author argues that the Canadian government ignores these rights violations despite numerous studies and inquiries. The author addresses the possibility of raising this issue to the international stage through use of CEDAW. In employing CEDAW, the author cautions that equality rights cannot be understood as wholly divorced from other forms of discrimination, including sexual orientation, disability, and class.

Despite global and regional promotion of human rights, the United Nations consistently receives reports of human rights violations which cast doubt upon the commitment of many member nations. One specific area of violation and questionable commitment on the part of states is that concerning the rights of women. Even the regional instruments purporting to give effect to the obligation o promote human rights and fundamental freedoms, which states assumed under the U.N. Charter, pay only passing attention to the issue of human rights. This article examines the Banjul Charter on Human Rights and Peoples' Rights. It evaluates the extent to which it accords recognition to the human rights of women. Emphasis is placed on the relationship between the recognition of the rights of women and the prospect for the socio- economic development of Africa. This article first reviews currently recognized women's rights and appraises those rights in light of the objectives they seek. Second, this article provides an analysis of the commitment that African states have to women's rights and will indicate the effect that current recognition of these rights will have on the socio-economic development of Africa.