A Gendered Refutation of Epiphenomenal Norms Through the Median Voter: a Case Study of India's Cedaw Compliance

• Citation: Vol. 33 No. 2
• Publication year: 2019

A Gendered Refutation of Epiphenomenal Norms Through the Median Voter: A Case Study of India's CEDAW Compliance

Shritha Vasudevan

A GENDERED REFUTATION OF EPIPHENOMENAL NORMS THROUGH THE MEDIAN VOTER: A CASE STUDY OF INDIA'S CEDAW COMPLIANCE

Shritha Vasudevan^*

Abstract

This Article hypothesizes on the reasons behind India's Declaration to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) Article 5(a) as a manifestation of the intensive compliance deadlock over its due diligence obligation which castigates traditional, cultural attitudes as responsible for gender-based violence.

A qualitative analysis of two historical moments when India was confronted with an empirical conflict of the CEDAW's due diligence obligation: the sati of Roop Kanwar in 1987 and the Shah Bano judgment in 1985, even prior to its CEDAW accession in 1993 is undertaken, to argue that the rational choice theory of voting and elections perfectly explains non-compliance. This article contests the position that norms are epiphenomenal and makes the case that only a study of gendered compliance alters the epistemological lens. This finding implies norms could be rationally restructured to make it in nations' interest to comply, simultaneously contesting the post-positivist feminist IR contention that eschews the relevance of the mainstream discipline.

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Introduction.............................................................................................225

I. Through the Looking Glass of Rational Choice....................234

A. Contesting the Epiphenomenal Thesis...................................... 237

II. The Median Voter Theorem.........................................................238
III. Hypothesis ......................................................................................243

A. Research Methodology ............................................................. 244

IV. Empirical Evidence: What is the Nature of the Median Voter in India? ...........................................................................................245

A. The Intersubjective Patriarchal, Religious Atmosphere That Primed the Sati of Roop............................................................ 245
B. The Shah Bano Judgment ......................................................... 253

Conclusion.................................................................................................255

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Introduction

One of the most seriously under-theorized and understudied aspect of international relations is the set of reasons behind the massive number of reservations and declarations to the one of the few existing international legal principle on gender-based violence (GBV) known as the due diligence obligation to the CEDAW. The due diligence obligation was formulated in response to the widespread crimes of GBV during the Balkan conflict in 1992, which provided the historical imperative to force the agenda for a right against GBV onto the international stage.¹

The promulgation of an international legal principle on GBV has been hindered by the massive number of reservations and declarations advanced by nation-states. The process of promulgating an international legal principle on GBV at the inception of the CEDAW has been termed the biggest deadlock in the history of the human rights system.² When the CEDAW was drafted and subsequently promulgated at the United Nations in 1979, governments unilaterally invoked their rights under the Vienna Convention on the Law of Treaties³ to unequivocally reiterate that the right against GBV could not prevail when it conflicted with the right to freedom of religion.⁴ The number of

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reservations to the CEDAW on this ground is the largest to any human rights treaty,⁵ reiterating the charge of scholars of human rights compliance that norms are indeed epiphenomenal to international life.⁶

This Article argues that this international deadlock that impeded the adoption of a principle on GBV in 1979, when the CEDAW was drafted,⁷ resurrected itself in 1992 as a legal obstacle when the due diligence was promulgated. Governments have refused to support an international legal principle that blatantly asks them to interfere in the religious practices that cause GBV precisely because the principle conflicts with the right to freedom of religion.⁸ The due diligence obligation has not yet been codified into a formal principle of public international law because of this trenchant opposition.⁹ This is the only existing international legal principle that unequivocally states that traditional, cultural attitudes emanating from religious practices that cause GBV cannot be condoned. The due diligence is thus based on a conflict of rights framework—the right to freedom of religion and the right against GBV.¹⁰ It is based on a liberal conceptualization of the relationship between the right to equality and the right against GBV, which does not permit a normative determination of the hierarchy between these norms.¹¹ The lack of a normative hierarchy has permitted the deadlock to compliance with this principle at the international level. This Article submits that nation-states have utilized this absence of a normative hierarchy to advance reservations against implementing the only existing international norm on GBV.

As stated above, this international deadlock with regard to compliance is the longest witnessed to any treaty on human rights.¹² Yet, the causes have not been seriously investigated, simultaneously reaffirming the charge by feminist International Relations (IR) theorists that gender is accorded scant priority by

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the mainstream discipline of IR.¹³ One of the principal arguments of feminist IR theorists first made in 1987 was that the realm of international relations was patriarchal, male, and incapable of realizing the interests of women.¹⁴ This state of affairs contributed to insufficient theorizing of gender within the paradigms of the IR discipline. Hence, this strand of feminist IR theorization, as applicable to the present argument, will contend that the insufficient theorization on the numerous reservations to the CEDAW, and subsequently its due diligence principle, is a reflection of the patriarchal realm of IR.

This Article stands as stark testimony to the fact that a proper analysis along a gender axis can reveal the principles on which the relationships between nation-states are structured. This Article contends that only this approach enables discernment of the conditions that cause or preclude compliance with human rights norms. The standard contention by human rights scholars—that non-compliance is generated because the due diligence norm and the norm privileging the right to gender-based equality over the right to freedom of religion is epiphenomenal—will be contested on the basis of the median voter theorem. The median voter theorem states that politicians prefer the position held by the average voter. This Article argues that the Indian Government's Declaration to the CEDAW was based on its perception of the median voter in India. This perception is hypothesized to be male, Hindu patriarchal and firmly in favor of the Hindu religious attitudes that cause GBV. An examination of the empirical occurrence of the due diligence obligation in India during the sati of Roop Kanwar and the parliamentary reversal of Shah Bano is used to make this case. As a result, this Article demonstrates the relevance of gender analysis to theorization on the relationship between nation-states. Non-compliance with human rights norms ensues not because nations consider norms to be epiphenomenal. In this significant instance of India's compliance with the CEDAW, the evidence indicates unequivocally that the median voter precludes India's compliance with a principle requiring affirmative state action to redress the traditional religious attitudes that cause GBV. Therefore, the empirical evidence in this Article indicates that the Indian government's non-compliance with the due diligence obligation is motivated by concerns about its median voter, which all governments and politicians unequivocally seek to please rather than a perception that the due diligence obligation is epiphenomenal. This

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surely, then, contests the primary argument of the human rights compliance literature that norms are epiphenomenal.

Further, this Article demonstrates the validity of evolving testable hypotheses on gender proposed by Keohane¹⁵ and partially contests the post-positivist feminist IR contention¹⁶ that the mainstream discipline of IR has nothing to offer to resolve the situation of gendered oppression. An ancillary effect of the feminist IR contention—that the system of IR is incapable of representing the interests of women—is that the system of IR is indeed irrelevant to the resolution of the situation of gendered oppression. But, this Article argues that the mainstream discipline of political science through its median voter theorem has provided the keys to unlock the puzzle of compliance with the due diligence principle, the most contested principle of the human rights treaty system. This finding is important, particularly to address gendered oppression in developing nations where pervasive cultural practices can be linked to GBV, such as with a specific cultural practice of the majority Hindu religion in India.¹⁷ only the liberal sphere, and particularly the instruments of public international law, provide an important analytical and substantive tool of redress. The feminist IR theorists' contention that the sphere of IR is irrelevant to the situation of gendered oppression negates the validity and relevance of the instruments of public international law like the CEDAW that have been valiantly used by feminist activists to construct an alternative discourse on the rights of gender-based equality in countries like India.¹⁸ Hence, this Article is also a...