Sex, culture, and rights: a re/conceptualization of violence for the twenty-first century.

• Author: Hernandez-Truyol, Berta Esperanza
• Position: Conceptualizing Violence: Present and Future Developments in International Law

1. INTRODUCTION

   The central theme of this Article, "Sex, Culture, and Rights: A Re/conceptualization of Violence,"(1) is that a re/vision of acts that constitute violence against women is necessary for gender equality--both domestically and internationally--to become a reality. This reconceptualization must address not only the normative concept of violence, i.e., the use of physical force, but it must also transform and reposition the idea of violence within a broader framework that includes, considers and aims to eradicate (1) psychological, social and political subordination of women; (2) male dominant (and female subservient) cultural and traditional practices; as well as (3) economic marginalization and subjugation of women.

   First, in looking at sex (meaning both sex and gender)(2) and culture, this Article will expose the status of women in the international human rights construct.(3) This analysis will reveal that women world-wide are still far from enjoying of equality in any sphere, and in any state within the international community.

   It is important to emphasize that the new model's redefinition of violence against women that this Article proposes is more comprehensive, expansive and extensive than the everyday variety of "A hit B"--be it with sex, a fist, a bat or a gun; be it at war, at home, at work or in the streets. To be sure, the discussion will include this "common understanding"(4) of violence. However, this Article also challenges the global community to develop a conceptualization of violence with, and from, a gender-sensitive perspective,(5) with a view to eradicating practices harmful to women, particularly with the aspirational goal of attaining real, rather than virtual or theoretical, equality for women. Such an expanded vision must condemn truly abusive, although not directly physically intrusive, conduct that has shattering effects on all women's lives by perpetuating their subordinated status and entrenching their second-class existence. The Article's proposed model presents a re/constructed notion of violence, that not only facilitates discourse on violence itself, but also engenders an environment that will enable the eradication of violence and the promotion of women's self-determination, empowerment and equality.

2. WOMEN'S INEQUALITY: SEX, CULTURE AND RIGHTS

   In its 1995 Human Development Report, the United Nations plainly stated that "[i]n no society today do women enjoy the same opportunities as men."(6) Similarly, the U.S. Department of State, in its 1995 annual report on human rights practice, left no doubt that as the global community approaches the turn of the century, the condition and status of women world-wide is one of social, political, educational, legal and economic inequality.

   Women in many countries are subjected to discriminatory restrictions

   on their fundamental freedoms regarding voting, marriage, travel,

   property ownership, inheritance practices, custody of children,

   citizenship and court testimony. Women also face discrimination in

   access to education, employment, health care, financial services

   including credit, and even food and water. Other long-standing

   violations of women's human rights include torture, systematic rape,

   domestic violence, sexual abuse, harassment, exploitation and trafficking,

   and female infanticide.(7)

   Although the early human rights documents promised women a standard of non-discrimination on the basis of sex,(8) that pledge, as the 1995 Country Reports and the U.N.'s Human Development Report indicates, is still, today, not a reality.(9)

   It is significant in an analysis of the real presence of women's voices, issues and concerns in the global community to note that women, because of their sex, were excluded from participation in the creation or early development of international law and its international human rights law component.(10) Women's historical and systematic exclusion from the international legal processes in which human rights were articulated, developed, implemented and enforced, resulted in the invisibility of gender issues and shielded gender-based abuses from public condemnation.

   Conventional wisdom places the watershed, transforming and defining event in modern human rights law at the world community's reaction to the tragedy of the Holocaust. For women, however, the real international human (women's) rights movement was not sparked until 1979, with the adoption of the Convention on the Elimination of All Forms of Discrimination Against Women (Women's Convention or Convention)(11) by the United Nations General Assembly (U.N.G.A. or General Assembly). This Convention reconceptualized international human rights discourse by placing women at center stage. It incorporated issues of concern to women not only with respect to so-called "first generation" civil and political rights,(12) but also to so-called "second generation" social, economic and cultural rights,(13) as well as "third generation" collective rights.(14) The Women's Convention addressed matters such as sexual harassment, gender-based violence, reproductive freedom and denial of basic rights. The Convention also recognized that women globally were being denied basic rights such as the rights to education, to vote, to own property, to travel and to give their children their name and nationality. Actions of states, governments and intergovernmental organizations, such as economic policies and structural adjustment programs, also were recognized as issues central to the marginalization and subordination of women worldwide. The Women's Convention articulated the goal of establishing equality for all women in all aspects of public and private life, including health, education, family, work and political participation. It created obligations on states to end public and private practices that deny women their full panoply of rights simply because of their sex.(15)

   Although the Women's Convention created the documentary blueprint for women's equality and empowerment, regrettably, its goals have not been realized in any aspect of women's lives. A major problem lies not with the Convention's own terms, but with the treaty-making process that allows states to opt out of certain obligations.(16) Significantly, such opting out is permitted only when the reservation is compatible with the "object and purpose" of the Convention, a limitation that may provide a lifeline to an otherwise tortured equality document. It seems, at best, confused and, at worst, disingenuous to argue that if the object and purpose of a treaty is sex equality, a reservation that perpetuates sex-based subordination is compatible with a treaty's object and purpose. Nonetheless, the Women's Convention is one of the most broadly reserved treaties on record,(17) and some of the reservations effect violence against women.

   Indeed, reservations taken to the Women's Convention are vivid examples of how legislating "equality" fails to eradicate the systemic inequality that plagues women in all aspects of their lives. Many nations made reservations to the Women's Convention for various reasons. For example, the reservations range from Belgium's, Luxembourg's and Spain's reservation to reflect the exclusively male heritage in exercise of royal power; to Germany's, New Zealand's and Thailand's exclusion of women from employment in the armed forces or access to combat duties; to Malta's and the United Kingdom's restriction of employment of women in night-work or at jobs deemed hazardous to their health. Moreover, numerous countries reserved, wishing to maintain restrictions on equality with respect to marriage, family, citizenship and legal personally of women. Finally, many Islamic countries reserved, insisting that equality be subordinate to the teachings of indisputably gender-subordinating religious law.(18)

   In light of the inefficacy of the formal processes to effect real change in women's lives, it was no accident that women's voices were not heard in the world sphere within the formal system that excluded them, even as that system created documents to protect and empower them. Women first gained recognition through their own activism and initiatives, such as participation in grass-roots organizing by individuals and nongovernmental organizations (NGOs). This informal, parallel track facilitated and enhanced women's voices and global visibility as well as their access to each other's work, thus developing a formidable and impressive network of data, information, resources and support.(19) This informal system also initiated the reconstitution of the rights construct to meet women's needs, effect our self-determination and ensure participation in the global sphere at the local, state-wide and international levels. Women's participation and successes, exhibited best by the results at the international conferences at Rio,(20) Vienna,(21) Cairo,(22) Copenhagen(23) and Beijing,(24) brought women into the discourse and transmogrified and validated the role of NGOs in the international community.(25)

   While activism has sparked changes and effected some laudable results, women are still far from enjoying equality,(26) and continued, rampant gendered violence is the basic culprit.(27) Although the violence is not exclusively of the "A hit B" nature, as the State Department's 1994 Report on human rights plainly notes, the "problem of [physical] violence against women" is of "particular concern."(28) Such concern, coupled with the reality of the pervasive nature of gender-based violence against women around the world, prompted the international community to take formal action.

   In early 1994, the U.N. Human Rights Commission established a

   Special Rapporteur on Violence Against Women to examine its

   causes and consequences. The 1994 Human Rights Reports

   document that physical abuse of women, including torture, systematic

   rape, female genital mutilation, domestic violence, sexual abuse,

   harassment...