Pritchard, Sarah --- "The Jurisprudence of Human Rights: Some Critical Thought and Developments in Practice" [1995] AUJlHRights 2; (1995) 2(1) Australian Journal of Human Rights 3

The Jurisprudence of Human Rights: Some Critical Thought and Developments in Practice

Sarah Pritchard[*]

Introduction

During the past couple of decades, human rights movements have emerged in many countries. In countries of the "North", social movements representing diverse identities, oppressions and struggles - "women"/"lesbians"/"gay men"/"people of colour"/"indigenous peoples"/"people with disability" - have invoked the language of rights and, more particularly, the language of human rights. At the same time, legal scholars have been embroiled in a debate about rights that has touched virtually every area of domestic law. Controversy about the value of rights discourse has been especially fierce in areas identified with popular struggles. Until recently, international law was spared the scrutiny of rights critics. Even the international law of human rights, with its near total reliance on rights discourse and intimate relationship with non-governmental organisations and popular struggles, was largely untouched by the rights debate.[1] By contrast, the philosophical foundations of human rights have been disputed from a number of perspectives. With the demise of the Cold War, some voices from the South have challenged the cross-cultural applicability of "universal" human rights. Other voices have argued that the quest for secure philosophical foundations for human rights is doomed to fail and practically useless.[2]

In the present article, it is proposed to examine some of the criticism of rights and to assess the implications of such criticism for the defence of human rights. It is proposed also to consider the challenges of cultural relativism. It will be argued that international human rights discourse is not immutable nor incapable of responding to criticism of its universalising assumptions. The implications of these arguments will be tested by reference to a number of recent developments in the international practice of human rights.

Some Critical Thought

Rights Critics

From an anti-rights position it is argued that "progressive" individuals and social movements have been fooled by the promise of rights. It is claimed that rights advocates merely confront the powerful with their abuses and have been unable to show how to implement a practical politics of rights.[3] From Marxist, Critical and feminist perspectives, rights are said to be individualistic, abstract and disempowering. Rights struggles are either examples of depoliticised culture or invocations of dangerous discourse.[4]

Left criticism

Some writers on the Left have warned that a politics of rights led by new social movements is threatening to shift social struggle away from the structural conditions at the root of inequality. These structural conditions, they argue, are the result of economic restructuring in late capitalism (postfordism) and preclude the politics of rights from becoming a politics of transformation. Fudge and Glasbeek suggest that States with entrenched rights regimes can be the most active in fostering repression. Such repression is related to the postfordist restructuring of global capital and is reinforced and advanced by rights advocates who focus on epiphenomenal relations and insist upon individualistic recognition of the fragmented identities developed and exploited by postfordism. Within capitalism, the experience of inequality is deflected onto gender and race hierarchies and the economic order protected and considered superfluous to social struggle.[5]

Fudge and Glasbeek seek to illustrate the poverty of the politics of rights by showing how the 1982 Canadian Charter of Rights and Freedoms has failed to effect substantive social transformation. They provide examples of ways in which Charter rights have been claimed and won by corporations and rights wing individuals. The existence of right-wing "new movement" advocates suggests that the new social movements lack a "normative theory ... for any coherent form of politics."[6] Even cases regarded by progressive forces as "wins" are not transformative since, at a deeper level, the dependency of rights claims upon legal processes leaves unchallenged the myriad of factors external to law which drive the politics of litigation. Fudge and Glasbeek warn of the danger of the legalisation of politics[7] and contend that in attempting to achieve changes which go to the heart of social relations, social movements are thwarted by elements within legal discourse itself. These include hegemonic concepts such as the public/private distinction, individualism and commodification.[8]These arguments suggest the abandonment of social movements, such as the movement for lesbian and gay rights, as viable agents of social transformation. The concepts of capitalism and class must continue to be the focus of opposition for a project which seeks to challenge and transform the deeper relations of subordination.[9]

Critical Legal Studies

The Critical Legal Studies movement, too, has warned against illusions that the quest for legal rights and their realisation through litigation can achieve substantive gains for progressive social movements. The CLS' theoretical critique of rights is well known: Rights are indeterminate, incoherent and unstable. They can not be understood in the abstract because they are shored up by determinate socio-cultural boundaries. They are not innate or absolute but are made normative through recognition in a particular society. Statements of rights are manipulable and rights can be set off against one another. Rights claims ignore the relational nature of social life and reinforce the separation of the individual from the community.[10]

CLS scholars view rights discourse as inherently political and recourse to the language of rights as masking the need for political and social change.[11]The search for "neutral principles" diverts attention from the responsibility of choosing political values to inform interpretations and facilitates an uncritical acceptance of existing distributions of power. Rights talk makes contingent structures seem permanent and undermines the possibility of their radical transformation. The use of rights by social movements keeps people passive and dependent upon the State. The only consistent function of rights, it is said, has been to protect the most privileged groups in society.[12] Mark Tushnet cautions, "It is not just that rights-talk does not do much good. In the contemporary United States it is positively harmful." Accordingly, the Left in Great Britain is properly opposed to the adoption of a Bill of Rights: "[I]n that culture, a Bill of Rights would enhance the political power of the privileged without bolstering the position of the Left."[13]

In recent years, CLS scholars have begun to examine international legal doctrine. Their claims parallel those made with respect to areas of domestic law. These rely on a critique of the internal logic of international law to suggest the incoherence of liberalism's explanation of international life and the indeterminacy of international legal discourse.[14]The indeterminacy thesis is invoked to reject conventional distinctions between international law and politics and the notion that coherent normative practice arises from the assumptions upon which international law is based. Doctrines are formal concepts that can be deployed to support any material theory of international law and any material outcome.[15]

Feminist criticism

In a parallel but distinct fashion, the feminist critique of rights questions whether the acquisition of legal rights can advance women's equality. In their analysis of the Canadian Charter of Rights and Freedoms, a number of Canadian feminist scholars have made a particular contribution to this critique. Judy Fudge is pessimistic about the possibilities of using the Charter to further feminist struggles. She refers to a number of decisions which demonstrate the amenability of the abstract and general language of the Charter's equality provisions to formal and narrow interpretations antithetical to feminist struggles.[16] Fudge suggests that Charter using feminists accept prevailing discourse, assume the State is an instrument and see courts as autonomous and rights claims a self-executing.[17] Kingdom makes similar arguments for Britain.[18] Carol Smart, too, suggests that rights discourse "has become more of a weapon against, than in favour of women."[19] She argues that rights discourse reduces intricate power relations in a simplistic way and that the promise of rights is thwarted in practice by inequalities of political and economic power. The balancing of competing rights, she claims, often results in a reduction of the power of women and the appropriation of rights by more powerful groups.[20]

In recent years, some feminist scholars have elaborated a particular critique of the gendered nature of international law and of the international law of human rights. They argue that modern international law has assimilated many assumptions about law and the place of law in society, from Western legal thinking. These include essentially patriarchal legal institutions, the assumption that law is objective, gender-neutral and universally applicable, and the division of society into public and private spheres.[21] Male perspectives, it is argued, are institutionalised within the unspoken commitments of apparently neutral principles of international law. Whilst the international legal order has sought to move beyond its origins as a white, European preserve and accommodate the critique of developing nations, it has failed to respond to the global oppression of women. A revival of interest in non-Western formulations of human rights has not resulted in any widespread incorporation of women's rights into postcolonial categories: The marginalisation of women is equally evident in the human rights categories devised by non-Western groups since decolonisation.[22]

Gendered hierarchies, sustained in domestic legal systems by patriarchal States, are reproduced and reinforced on the international plane. Thus, the dichotomy between private and public spheres, at the heart of liberal theories of the State, has had a defining influence on international law.[23]In international law, as in domestic legal systems, the construct of the public/private dichotomy has kept the private beyond public redress and depoliticised women's subjection within it.[24]Human rights law, which on one level radically challenges this dichotomy by introducing individuals as subjects of international law and positing human rights as a matter of international concern, is concerned ultimately with public actions.[25]The typical injuries sustained by women, however, occur within the private realm and thus, it is claimed, most formulations of international human rights are largely irrelevant to women's lives.[26] By incorporating the public/private dichotomy, the law of human rights immunises from its purview non-governmental sources of human rights abuse and facilitates the entrenchment of less visible power structures.[27] Charlesworth, Chinkin & Wright have argued that the grip of the public/private distinction and the resulting banishment of women's voices and concerns from international law, including international human rights law, is particularly evident in the international prohibition of torture. Under the international legal regime for the prohibition of torture, acts of torture are defined to take place in the public realm. The 1987 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment defines as torture those acts of pain or suffering inflicted by persons acting in an official capacity. Whilst women are often the objects of acts of violence perpetrated by public officials, much violence suffered by women arises outside the public context of the State.[28]Overcoming the international institutionalisation of the public-private dichotomy is thus "one of feminism's greatest hurdles in creating an inclusionary approach to human rights and incorporating the diverse everyday life experiences of women into its models."[29]

The Debate over Cultural Relativism

The debate over cultural relativism has been shaped to a significant extent by the Cold War and the ramifications of its demise.[30] During the Cold War, discussion of the cultural relativist criticism of universal human rights standards was fairly muted. Instead, the period was dominated by profound ideological differences between "individualistic" Western and socialist concepts of human rights. Marxist theory dismissed civil and political rights as bourgeois concepts and endorsed, instead, State dominance of economic and social life. With the end of the Cold War, the debate over the hierarchy between civil and political and economic, social and cultural rights has assumed a North-South dimension. It is sometimes asserted that human rights, especially civil and political rights, are of little relevance in non-Western societies. It is claimed that imperatives of economic development compel developing countries to accord collective economic rights priority over individual freedoms.

In its simplest form, the cultural relativist criticism asserts that human rights are a Western concept of limited applicability to non-western cultures.[31] Human rights are said to be "Western", not only as a matter of contingent historical fact, but also in their individualistic, ontological implications.[32] Neither of these statements is entirely unfounded. Historically and culturally, the capacity of individuals and groups to claim for their needs and aspirations the status of rights possessing juridical value in national and international law, did not exist prior to the 17th century in Europe. There seems little point in disputing that the modern concept of human rights has a peculiarly European inheritance. To reach such a conclusion is, of course, not to deny the existence of respect for human values in philosophical and political systems outside Europe, at present or in the past.[33] Moreover, some human rights formulations probably do presuppose social forms which are not necessarily universal. Individuals in traditional societies may lack some of the rights that are valued in liberal democracies. The right to form a trade union, for example, may not be relevant in societies in which trade unions are not required to protect important interests. The individual right to own property might mean little in societies based on collective property rights.[34] Many of the interests protected by the institutionalisation of individual human rights may be socially protected in traditional societies, which offer community and security in place of the autonomy and freedom provided by liberal societies. Whether this is a superior conception of human dignity is a separate question.

In recent years, a number of Asian governments have challenged the legitimacy of international action to protect human rights. A combination of the following arguments are employed:

* The notion of individual human rights is alien to Asian cultures in which Confucian philosophical traditions assert the primacy of communitarian principles, the importance of consensus and respect for authority;

* Robust economic growth demonstrates that a different development strategy works for Asia. Economic development will create the necessary environment for the realisation of civil and political liberties. In the meantime, concerns over individual human rights must not stand in the way of a "collective" right to development;

* Countries from the "North" have been selective in their criticism of the human rights records of countries from the North; the legitimacy of such criticism is undermined by those countries' own records on human rights.

On one level, an appeal to international law can refute arguments against universality, indivisibility and the prioritisation of human rights. Relevant provisions of the Charter of the United Nations and the Universal Declaration of Human Rights were premised on recognition of the universal applicability of human rights. Numerous UN declarations and resolutions have expressly reaffirmed the universality and indivisibility of all human rights. The Vienna Declaration and Programme of Action, adopted at the 1993 World Conference on Human Rights by representatives of 171 States, states:

All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis. While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms. (para 5)

In the debate over cultural relativism, it is important to listen not only to the voices of governments from the South. Non-governmental organisations in Asia do not necessarily share the concern of governments to protect the integrity of Asian philosophical traditions. The well-modulated voices of these NGOs provide a consistent and coherent alternative view of human rights.[35]They urge the inclusion of cultural values and perceptions in the human rights equation, but do not accord them the status of meta-norms which can trump universally applicable standards. In connection with preparations for the 1993 World Conference on Human Rights, a preparatory meeting of regional governments was held in Bangkok. At the same time, representatives of more than 110 human rights and development NGOs from 26 Asia-Pacific countries met to review the human rights situation in the region. On 29 March 1993 they adopted the Bangkok NGO Declaration on Human Rights, which states:

There is emerging a new understanding of universalism encompassing the richness and wisdom of Asia-Pacific cultures. As human rights are of universal concern and are universal in value, the advocacy of human rights can not be considered to be an encroachment upon national sovereignty.

We affirm our commitment to the indivisibility and interdependence of human rights, be they economic, social and cultural, or civil and political rights. There must be a holistic and integrated approach to human rights. One set of rights cannot be used to bargain for another.

We emphasise the need for balanced and sustainable development, bearing in mind maximisation of people's development, integrated approaches on civil, political, economic, social and cultural rights; equity and social justice; income distribution and fair resource allocation.[36]

The Bangkok NGO Declaration suggests that perceptions about human rights in the South are neither monolithic or static. This conclusion derives support from a recent speech given by the Deputy Prime Minister of Malaysia, Anwar Ibrahim:

If we in Asia wish to speak credibly of Asian values, we too must be prepared to champion those ideals which are universal and belong to humanity as a whole. It is altogether shameful, if ingenious, to cite Asian values as an excuse for autocratic practices and denial of basic rights and civil liberties. To say that freedom is Western or unAsian is to offend our own traditions as well as our forefathers who gave their lives in the struggle against tyranny and injustices. It is true that Asians place greater emphasis on order and societal stability. But it is certainly wrong to regard society as a kind of false god upon whose altar the individual must constantly be sacrificed. No Asian tradition can be cited to support the proposition that in Asia the individual must melt into the faceless community. If Confucianism is cited as an exception, Professor Tu Wei-ming, a contemporary Confucian scholar and thinker, would certainly resent that .... We can equally cite other Asian thinkers, Muslims, Hindus or other, expressing a similar position.[37]

The Defence of Rights

From socialist, Critical and feminist perspectives it is possible to recognise that whilst rights can be obfuscatory, individualistic and sometimes disempowering, they can also provide significant foci for resistance. Arguments are made which, to varying degrees, reject the liberal myth of rights, but nevertheless view rights discourse as a valuable form of politics and a significant vehicle for realising the goals of progressive social movements.[38]These voices play down the structural and discursive constraints noted by rights critics and emphasise instead, the positive effects of rights struggles upon individual consciousness and social movement mobilisation.[39] Increasingly there are suggestions that the rights critique itself has become something of an orthodoxy in the academy and the indeterminacy claim levelled against rights itself stable and deadening.[40]

On the Left, there is recognition of the decreasing significance of an exclusively class-based politics and a rejection of reductionist notions of capitalism as the only relevant site of struggle.[41] Hunt, for example, has been critical of the "pervading ambivalence to rights" exhibited by the Left:

The left can and must abandon its ambivalence toward rights; they are a field of engagement between alternative social policies and political objectives, and are at the same time important sources of mobilisation and for securing political advances (and defeats of course!)[42]

Herman shares the critique of liberal norms associated with capitalist relations of production as premised on de jure equality and excluding identities based on distinguishing features such as gender, race, ethnicity and sexual orientation, but recognises at the same time that a class reductionist analysis of law allows no room for understanding the process by which a break in the boundaries of legal liberalism can be forced.[43]

Feminist Legal and Critical Race theorists have criticised the CLS attack on rights for its failure to recognise both the symbolic and the substantive impact of concrete rights victories. In the context of the struggle for racial equality in the United States, rights have at times legitimised racial inequality, but have also been the means by which oppressed groups have secured entry as formal equals into the dominant order. Whilst Crenshaw agrees that engaging in rights discourse has helped to deradicalise and co-opt the challenge, she notes that the Critics fail to acknowledge the limited range of options presented to Blacks "in a context where they were deemed `other' and the unlikelihood that specific demands for inclusion would be heard if articulated in other terms."[44] From a similar perspective, Patricia Williams has argued that although rights may not be ends in themselves, rights rhetoric has been and continues to be an effective form of discourse for Blacks:

The vocabulary of rights speaks to an establishment that values the guise of stability, and from whom social change for the better must come (whether it is given, taken, or smuggled). Change argued for in the sheep's clothing of stability ("rights") can be effective, even as it destabilizes certain other establishment values (segregation). The subtlety of rights' real instability thus does not render unusable their persona of stability.[45]

Williams contends that in discarding rights altogether, one "discards a symbol too deeply embedded in the psyche of the oppressed to loose without trauma and much resistance."[46] At least one prominent CLS scholar considers that rights claims are potentially important and useful. Duncan Kennedy has urged the transformation of rights rhetoric:

The critique of rights as liberal philosophy does not imply that the Left should abandon rights rhetoric as a tool of political organizing or legal argument. Embedded in the rights notion is a liberating accomplishment of our culture: the affirmation of free human subjectivity against the constraints of group life, the paradoxical countervision of a group life that creates and nurtures individuals capable of freedom. We need to work at the slow transformation of rights rhetoric, at dereifying it, rather than simply junking it.[47]

Some feminists, too, consider that deeper structural inequalities intrinsic to human rights do not destroy all ambiguities and possibilities of resistance. In Canada, Didi Herman has noted that despite alarm caused by early attempts by men to use the Canadian Charter of Rights and Freedoms to challenge legislation conferring benefits on women, feminist legal organisations have been increasingly successful in developing women's rights through Charter challenges.[48]Catharine MacKinnon has commented that Canadian equality guarantees have proven capable of addressing a substantial number of realities of sex inequality that had eluded prior attempts.[49] In the United States, Elizabeth Schneider has argued that there are more possibilities for using rights discourse in the development of social movements than the standard CLS and feminist critiques of rights suggest.[50] Jenny Morgan has considered whether there is any room for a useful constitutional and legalised rights discourse in Australia. She notes:

For those who have not been rights-bearers, or who have only recently been conceded rights, the language of rights not only seems more powerful than to those who have long held rights, but it is more powerful.[51]

And according to Hilary Charlesworth:

Recognition that guarantees of rights do not rest on a neutral "scientific" base, nor are panaceas for oppression, and that they give new interpretative freedom to an unelected judiciary and are capable of distortion in preserving existing structures of domination, should not lead us to abandon their potential. The assertion of rights can have great symbolic force for oppressed groups within a society offering a significant vocabulary to formulate political and social grievances which is recognised by the powerful.[52]

In recent years, a number of scholars from the South have called for greater recognition of contextual diversity and cultural specificity in the international practice of human rights, but at the same time taken issue with the suggestion that respect for context and culture must lead to a rejection of international human rights norms. Yosh Gai has argued that the apologetic or manipulative invocation of culture or context by repressive regimes must be seen for what it is. Gai describes the extraordinary transformative potential of human rights in Asia:

They are a constant challenge to vested interest and authority in societies riven by enormous disparities of wealth and power, with traditions of authoritarianism and the helplessness of disadvantaged communities, of militarisation and the conjunction of corrupt politicians and predatory domestic and international capital. Human rights are therefore a terrain for struggle for power and the conceptions of good society.[53]

Abdullahi An-Na'im has advocated processes of internal discourse and cross-cultural dialogue to broaden and deepen genuine and substantive consensus over the formulation, interpretation and implementation of international human rights norms.[54] He asserts that although clearly distinguishable from one another, human cultures are characterised by their own internal diversity, propensity to change and mutual influence. These characteristics can be used to promote normative consensus within and among cultures on the implementation of international human rights treaties.[55]

Some Conclusions

The foregoing cursory examination of some of the contemporary criticism of rights and, more particularly, of human rights does little justice to the richness of the debate. The present article can not even begin to provide answers to many of the questions raised. Instead, a few simple conclusions are offered:

1. First, it is too easy to dismiss non-class-based claims as a buying-off of the energies of progressive individuals and social movements. Reductionist class analysis can not adequately explain the fragmentation, regulation and oppression of different identities in different societies. The suggestion that human rights advocacy by subordinated groups may not fundamentally challenge the economic order does not mean that such advocacy is bad.[56]

2. Second, from the empowered perspective of those who have rights, it is easy to disparage rights discourse as inherently indeterminate. Wholesale statements about the inutility and even harmfulness of rights overlook and trivialise the experience of those disempowered groups whose interests have been protected by rights. Whilst elements in legal discourse can block substantive change, these are not inherently immutable. Whilst rights can not be understood in the abstract, can be indeterminate and can support formal and narrow outcomes, they can also enhance the position of disempowered groups. Through the doctrinal, rhetorical and institutional structures of human rights, decisions are made which have implications for invisible and disempowered lives.[57] Experience with the Canadian Charter of Rights and Freedoms affirms that the potential of rights discourse does represent an advance over slow and grudging parliamentary reforms.[58] Charter rights, framed in abstract and general language, have proven amenable to progressive interpretations urged by, amongst others, feminists and activists for gay and lesbian rights.

Clearly, liberal discourse has been, and continues to be mobilised to silence the troublesome voices of those who are regarded as "other" and to naturalise and depoliticise their oppression. The insights of Critical and feminist legal theory alert us to the gendered and racialised perspectives of liberal discourse which masquerades as neutral and perspective-less in the public sphere. These encourage us to look at discourse in operation, in specific historical and cultural contexts, to see whose interests are being served at a particular moment. As Patricia Williams has observed, the problem is not so much that rights discourse itself is constricting, but more that it exists in a restricted referential universe, that rights assertion is limited by designating "others" as extrinsic to rights entitlement.[59] A broader referential range of rights and rights recipients can give voice to those groups who historically have been without a voice. Experience suggests that in some struggles for change, the language of human rights can be empowering, that power and visibility can be gained by defining, criticising and deploying human rights discourse and that the meaning of "human" in "human rights" can be shifted to include hitherto excluded voices and forms of oppression.[60]

Since the establishment of the United Nations, the international law of human rights has been developed largely in response to criticism. Different movements have situated themselves at the margins of human rights law and challenged it to respond better to more and different types of oppression. As new rights and reinterpretations of old rights have been urged, human rights instruments have been elaborated and adopted by the international community. Conceptions of human rights standards, of the subjects of human rights and of threats to human rights have not been static but subject to change.[61] What is needed is not the abandonment of rights language, but skill in evaluating how human rights might be interwoven within the different strands of the politics of social movements. Rather than making overarching pronouncements on the value of human rights discourse, it might be more useful to ask why some groups have been more visible than others in the evolving jurisprudence of human rights, to compare experience and to assess how human rights might be deployed to advance the claims of different groups. [62]

3. Third, the insights of poststrucuralist and postcolonial theorists suggest the need for autonomous historically, culturally and geographically grounded strategies in the area of human rights. Poststructuralist and postcolonial critiques have drawn attention to the exclusionary effects of essentialising discursive practices and to the power concealed in "tropes of normative universality." They suggest the abandonment of monolithic, ahistorical categories which employ dominant groups as normative referents and the recognition instead of the malleability, contingency and relational nature of Identity categories.[63] Poststructuralist problematisations of the notion of experience and postcolonial calls for the specific location of experience are wary of universal explanations of the oppression of groups - such as "women" by "men", "homosexuals" by "heterosexuals". Third World and critical race scholars have criticised the work of both CLS scholars[64] and Western feminists[65] for a tendency to set up essentialist categories. Their critique suggests that to ignore the simultaneity and complex interaction of oppressions, subsuming experiences within one category alone, is to tell a particular and skewed story.[66]

In the international law of human rights, this suggests an approach which is wary of unified, ahistorical categories, which interrogates the various dimensions - geography, race, gender, sexuality, culture, class - of a group's oppression and which does not require individuals to identify themselves along one axis of oppression in accordance a list of immutable "Identity" categories.[67] Recognition that international norms can be filled with contextual meaning need not lead to total relativism and political paralysis, as is sometimes suggested.[68] Nor does it mean that strategic coalitions amongst "powerless" groups across boundaries of class, race, gender and sexual orientation are unimportant. The interface of the insights of anti-essentialism in postcolonial and poststructuralist theory and of cultural relativism in human rights scholarship can contribute to a richer analysis of, and more effective, context-specific strategies for the implementation of international human rights instruments.

4. Fourth, the challenge of cultural relativism suggests the need for greater recognition of contextual diversity and cultural specificity in the international practice of human rights. To avoid disintegration into total relativism, the international human rights community is challenged to demonstrate openness to the diversity of cultural and contextual realities which condition the beliefs and practices in different societies. Efforts to promote human rights norms are likely to remain superficial and ineffectual until they relate directly to, and where possible, are undertaken through, local cultural, religious and other traditional communities. It is incumbent upon international activists to be creative in supporting efforts of people to change their culture from within.[69]

However, whilst affirming the authenticity of different voices and the significance of cultural contexts in promoting respect for human rights, it is important to recognise that the dominant framework of human society is no longer the tribe or clan. Even peoples removed from the characteristic forces of the "contemporary" world (industrialisation, economies of scale, consumerism, electronic technology etc) are subject to the most powerful force of all: the State. The internationalisation of elements of contemporary statist societies has penetrated beyond the lines of traditional communities. Since 1945, a proliferation of statist societies has produced considerable uniformity in social and political problems. At the same time, the proliferation of rights discourse has produced some uniformity in the way we understand these problems.[70] Significant human rights issues include summary and arbitrary executions, enforced disappearances, arbitrary detention, acts of torture, curtailment of freedom of thought and expression, inhumane working conditions, extreme poverty, displacement of populations and systematic violations of the rights of vulnerable groups, including women, disabled persons, children, lower castes, indigenous peoples, ethnic minorities and migrant workers. Patterns such as these characterise statist societies throughout the world. This is not to suggest that the statist form of government is the only source of abuse; clearly, massive human rights violations occur within civil society (often with the connivance of the State), frequently reflecting feudalistic and patriarchal dimensions of culture. It is, however, no coincidence that States with appalling human rights records are frequently the most vociferous advocates of respect for cultural difference and of a relativist approach to human rights.

In order to combat the abusive invocation of cultural relativity, the challenge of cultural diversity must be addressed seriously. This suggests the need to develop a better understanding of the different dimensions of the relevant norms and consideration of the ways in which divergent interpretations are arrived at according to localised understandings and conventions.[71] Despite arguments about "Asian values", most of the disagreement appears to be over the implementation of human rights, rather than the concepts themselves.[72]

Some Developments In Practice

In the present section, it is proposed to evaluate a number of examples in which international human rights standards have been strategically deployed by social movements. To varying degrees, recent developments in the areas of women's human rights, lesbian and gay rights and children's rights affirm the potential of human rights discourse in forcing breaks in the boundaries of liberal legalism and challenging notions such as the public/private distinction and the family/State dichotomy. In each case, the international law of human rights has been challenged either to respond to a broader spectrum of human rights abuses or to recognise more and different types of oppression. The success of advocates for women's, gay and lesbian and children's rights in securing progressive interpretations attests to the mutable, dynamic nature of human rights rhetoric and to possibilities for working at its transformation. A number of African decisions involving the interpretation of women's rights illustrate possibilities for bringing international standards to life at the national level. Developments in the area of children's rights in particular suggest that the international human rights community is displaying greater sensitivity to cultural diversity and recognising the need for greater consensus within and among cultures with respect to human rights.

Women and Human Rights

Within the United Nations system, questions concerning women's rights and gender-based discrimination were for many decades subsumed under the terms "status of women" and "advancement of women". In 1947, a Commission on Human Rights (CHR) and a Commission on the Status of Women (CSW) were established as separate functional commissions of the Economic and Social Council (ECOSOC).[73]Gaps between the human rights agenda and the women's agenda meant that the human rights of women often disappeared between the cracks. Where women's rights made it onto the human rights agenda, they were generally scattered among different items on the agenda of the CHR. In recent years, women's groups have campaigned for the merger of the UN's women's agenda and human rights agenda.

As far as the substance of women's human rights is concerned, the first and easiest task of advocacy at the international level was the achievement of equal rights for women in the public sphere. In 1952, the UN General Assembly adopted the Convention on the Political Rights of Women. Whereas the CSW began to focus on gender discrimination in the private sphere, the UN's human rights bodies maintained a focus on the public realm, on relations between governments and individuals. Women's organisations argued that in order to enjoy the universality to which it aspires, international human rights law had to address the spectrum of human rights abuses endured by women. They argued that the effective protection of women's rights requires not simply the elimination of discrimination in the work of public authorities, but the recognition of violations perpetrated by fathers, husbands, neighbours, colleagues, employers etc. These include acts of violence against women and traditional practices detrimental to women. The inclusion of such acts and practices in the human rights agenda was long hampered by the view that the private sphere was beyond the reach of human rights norms.[74]

The 1979 Convention on the Elimination of All Forms of Discrimination Against Women was a significant attempt to bring the international law of human rights into the private realm. Article 5 of the Convention requires States parties to address social, cultural and traditional patterns which perpetuate stereotyped roles for women:

States Parties shall take all appropriate measures ... to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.

The Women's Convention did not directly address violence against women. During the 1980s, women's organisations began campaigning for recognition of the multitude of ways in which women experience gendered violence as a human rights issue. Early resolutions adopted by UN bodies referred to neither women nor to human rights. They were given titles such as "domestic violence" and "violence in the family". In 1985, the General Assembly adopted a resolution on domestic violence[75], based on an ECOSOC resolution on violence in the family, based in turn on a 1984 resolution of the CSW.[76] In 1986, ECOSOC recognised "violence in the family" as a "grave violation of the rights of women."[77] In 1987, ECOSOC designated the issue of violence against women within the family and society as a priority theme in the area of peace in the Nairobi Forward Looking Strategies for the Advancement of Women adopted at the 1985 Nairobi World Conference on Women.[78] In 1991, ECOSOC adopted a resolution recommending the development of a framework for an international instrument that would address violence against women. The resolution arose from a Canadian initiative which envisaged the elaboration of a Protocol to the 1979 Women's Convention.[79] A Meeting of Experts, convened in November 1991, opted for an "incremental" approach to the issue and decided to produce the draft of a non-binding declaration. This was submitted to the CSW in 1982 and further developed at an inter-sessional working group in September 1992. The draft declaration was adopted at the CSW's March 1993 session. The process of anchoring the issue of violence against women on the international agenda culminated on 20 December 1993 with the adoption by the General Assembly, without a vote, of the Declaration on the Elimination of Violence Against Women.[80]

The Declaration is by no means flawless.[81] It fails to posit violence against women explicitly as a violation of women's human rights. Whilst it does make mention of human rights, the link between human rights and gender-based violence is not clear. The definition of violence against women in articles 2 and 3 contains no reference to human rights, an omission which was not inadvertent. In the CSW inter-sessional drafting group, Sweden and the United States argued that describing violence against women as a human rights violation would water down the notion of human rights. Article 3 gives prominence to civil and political rights. These have traditionally been interpreted to operate only in the public sphere, and thus yielded little for women. Economic and social rights, on the other hand, such as rights to development, heath care, nutrition, shelter, literacy and skill-training, are central to the realisation of the human rights of women. Unlike other recent statements of human rights, the Declaration on the Elimination of Violence Against Women fails to recognise the interdependence of civil and political, and economic, social and cultural rights.[82]

What is the relationship of the Women's Convention and the Declaration on the Elimination of Violence Against Women? As noted, the Women's Convention does not directly address the issue of violence against women. However, in its consideration of the reports of States parties and in three of its General Recommendations (12, 14 and 19), the Committee on the Elimination of Discrimination Against Women (CEDAW) has stated that violence against women constitutes a form of discrimination. In January 1992, CEDAW formally extended the general prohibition of gender-based discrimination to include gender-based violence. In General Recommendation No 19, entitled "Violence against Women", the Committee posits gender based violence as "a form of discrimination which seriously inhibits women's ability to enjoy rights and freedoms on a basis of equality with men." In this respect, General Recommendation No 19 goes further than the Declaration on the Elimination of Violence Against Women, clearly linking the issue of violence against women to the prohibition on discrimination. The Committee's General Recommendation defines violence against women as:

... violence that is directed against a woman because she is a woman or that affects women disproportionately. It includes acts that inflict physical, mental or sexual harm or suffering, threats of such acts, coercion and other deprivations of liberty. (para 6)

The General Recommendation affirms that "discrimination under the Convention is not restricted to action by or on behalf of Governments":

[T]he Convention calls on States parties to take all appropriate measures to eliminate discrimination against women by any person, organisation or enterprise. Under general international law and specific human rights covenants, States may also be responsible for private acts if they fail to act with due diligence to prevent violations of rights or to investigate and punish acts of violence, and for providing compensation. (para 24(t))[83]

The reluctance of the international community to characterise acts of violence against women as human rights violations reveals the at times highly contested nature of human rights.[84] The success of women's organisations in securing recognition of gender based violence as a violation of women's human rights suggests however, that global mobilisation can be effective in challenging dominant conceptions and interpretations of human rights.[85]A lengthy struggle of women's NGOs has also resulted in the issue of traditional practices harmful to women being anchored on the human rights agenda.[86] In 1986, the UN Working Group on Traditional Practices recognised that "there is incompatibility between human rights obligations of governments and the maintenance of harmful traditional practices."[87] The issue was vigorously debated during discussions culminating in the adoption of the Declaration on Violence Against Women. Article 4 of the Declaration states that custom, tradition or religion cannot be invoked by States to avoid their obligations with respect to the elimination of violence against women. Over the protest of a number of States, the definition of violence against women in article 2 includes dowry-related violence, female genital mutilation and "other traditional practices harmful to women."

Attempts to secure integration of the rights of women into the human rights mechanisms of the United Nations and the mainstream of UN system-wide activity are also yielding results. The Vienna Declaration and Programme of Action, adopted by the 1993 Vienna World Conference on Human Rights, states:

The human rights of women and of the girl child are an inalienable, integral and indivisible part of universal human rights. ... The human rights of women should form an integral part of the United Nations human rights activities ... (Part I para 18)

At its most recent session, the Sub-Commission on Prevention of Discrimination and Protection of Minorities adopted a resolution entitled "Human rights of women and the girl child" in which it recalled the Vienna Declaration and decided "to consider the human rights of women and the girl-child under every relevant item of its agenda, as well as in all relevant studies undertaken by the Sub-Commission" and requested "that all reports submitted at its [next] session contain a gender perspective in their analyses and recommendations".[88] The Commission on Human Rights has also requested that all special rapporteurs, working groups and treaty bodies include in their reports all available information on human rights violations against women.[89]Consideration of the human rights of women as an integral part of the overall institutional framework in the field of human rights has been advanced by the establishment of a focal point for the human rights of women within the UN Centre for Human Rights in Geneva.

At the international level, there has been a dearth of litigation concerning the human rights of women. Few complaints of gender discrimination have been submitted to the UN Human Rights Committee under the First Optional Protocol to the International Covenant on Civil and Political Rights. The Women's Convention establishes no procedure for individual complaints.[90] The only supervisory procedure available to CEDAW is the examination of reports submitted by States parties.[91]In contrast to the Human Rights Committee, the Committee on the Elimination of Racial Discrimination and the Committee Against Torture, CEDAW has been unable to develop a body of jurisprudence through the examination of individual complaints.

A number of cases from Africa have demonstrated the value of test cases at the national level as focal points for change.[92] In the 1990 case of Ephraim v Pastory, the High Court of Tanzania considered whether a prohibition in customary law on the alienation of clan land by women was unconstitutional. Article 13(4) of the Tanzanian Constitution provides that "no person shall be treated in a discriminatory manner by any person acting by virtue of any law or in the discharge of the function of any state office or the party, and its organs." The definition of "discriminatory" in article 13(5) contains no reference to "gender" or "sex". In interpreting article 13(4), the High Court referred to Tanzania's ratification of major international human rights instruments, including the Convention on the Elimination of All Forms of Discrimination Against Women, in support of a modification and qualification of customary rules of inheritance "such that males and females now have equal rights to inherit and sell clan land."[93] Mwalusanya J observed:

From now on, females all over Tanzania can at least hold their heads high and claim to be equal to men as far as inheritance of clan land and self-acquired land of their father is concerned. It is part of the long road to women's liberation. But there is no cause for euphoria as there is much more to do in other spheres.[94]

In Dow v. Attorney-General, Unity Dow, a citizen of Botswana, challenged the 1984 Botswana Citizenship Act on the basis that it contravened rights and freedoms guaranteed by the Constitution, including protection from discrimination on the basis of sex. Article 3 of the Botswana Constitution provides that "every person in Botswana is entitled to the fundamental rights and freedoms of the individual, ... whatever his ... sex."[95] Section 4 of the impugned citizenship law provided that a person born in Botswana would be a citizen if at the time of his birth his father was a citizen or, in the case of children born out of wedlock, his mother was a citizen. On the basis of s 4, two children born after Unity Bow's marriage to a citizen of the United States were not citizens of Botswana. The children, although born in Botswana, required residence permits to remain in Botswana, were not entitled to financial assistance available to citizens, and were obliged to travel on their father's passport. The High Court of Botswana found s 4 of the Citizenship Act to be ultra vires the Constitution. Horowitz J said:

[T]he time when women were treated as chattels or were there to obey the whims and wishes of males is long past and it would be offensive to modern thinking and the spirit of the Constitution to find that the Constitution was framed deliberately to permit discrimination on the grounds of sex.[96]

Referring to the incorporation provision in the preamble to the 1981 African Charter of Human and Peoples' Rights, as well as Botswana' signature of the 1967 Declaration of All Forms of Discrimination Against Women, Horowitz J noted:

It is also difficult if not impossible to accept that Botswana would deliberately discriminate against women in its legislation whilst at the same time internationally support non-discrimination against females or a section of them.[97]

On appeal, the Botswana Court of Appeal upheld the decision of the High Court. The majority said:

Botswana is a member of the community of civilised States which has undertaken to abide by certain standards of conduct, and, unless it is impossible to do otherwise, it would be wrong for its courts to interpret its legislation in a manner which conflicts with the international obligations Botswana has undertaken[98]

Lesbian and gay rights

Like the struggle for recognition of violence against women as a human rights issue, the history of lesbian and gay rights advocacy demonstrates that the public/private distinction is neither rigid nor unchanging. In many jurisdictions, initial protection for lesbians and gay men was gained through the recognition of privacy rights. In the United Kingdom, the 1957 Wolfenden report recommended that "homosexual behaviour between consenting adults in private should no longer be a criminal offence."[99]In 1969, campaigns in Canada secured the decriminalisation of gay and lesbian sexual activity. In the Dudgeon, Norris and Modinos cases, the European Court of Human Rights found laws criminalising homosexual activity in Ireland, Northern Ireland and Cyprus to violate the right to respect for private life in article 8 of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms.[100]

Although within gay and lesbian rights movements, many doubt whether winning human rights will achieve liberation for gay men and lesbians, there is increasing acceptance that human rights discourse can be deployed strategically. In Canada, the suggestion that the 1982 Canadian Charter of Rights and Freedoms held no promise for social movements has been tempered by the fact that many lesbians and gay men consider recent legal rights struggles to have been increasingly successful.[101]The Supreme Court of Canada has adopted a "purposive" interpretation of equality rights under the Charter. Although sexual orientation is not amongst the prohibited grounds of discrimination enumerated in s 15, courts have found sexual orientation to be a "non-enumerated but analogous ground" within the scope of s 15.[102] With the issue of individual equality rights largely won in Canada, gay and lesbian rights advocates have commenced campaigning for recognition of same-sex relationships. A number of recent decisions of Canadian courts suggest a trend towards recognising for same-sex couples the same rights and benefits connected with heterosexual marriage and cohabitation.[103]Increasingly, the liberal consensus surrounding consensual sex in private is being challenged by demands for the recognition of gay and lesbian rights in the public realm. Privacy arguments, it is argued, are linked to invisibility and silence and can contribute little in the areas of recognition of same-sex relationships, "spousal" benefits, custody, access, adoption, fostering and reproductive technologies. They focus on preventing State intervention and not on affirming important aspects of people's lives.[104] In the area of sexuality, the public/private distinction is becoming untenable and through struggle, shifts in meaning are occurring and transformations taking place.[105]Two decisions of the UN Human Rights Committee illustrate some of the constraints, as well as possibilities of human rights discourse in the struggle for gay and lesbian rights.

The 1982 decision of the Human Rights Committee in the Finnish Broadcasting case

In 1982, the Human Rights Committee considered a communication concerning actions of Finnish authorities, including the State-controlled Finnish Broadcasting Authority, in the censoring of, and imposition of sanctions on participants in radio and television programs dealing with homosexuality. The authors, represented by the Finnish Organisation for Sexual Equality, alleged that the actions of the Finnish authorities amounted to interference with their right of freedom of expression and information, recognised in article 19(2) of the International Covenant on Civil and Political Rights (ICCPR). In views adopted on 2 April 1982, the Human Rights Committee noted that article 19(3) permits restrictions upon the rights protected by article 19(2) "as are provided by law and as are necessary for the protection of public order or of public health or morals."[106] In finding that there had been no violation of the Covenant, the Committee noted:

that public morals differ widely. There is no universally applicable common standard. Consequently, in this respect, a certain margin of appreciation must be accorded to the responsible national authorities.[107]

The Committee could not question the decision of the Finnish Broadcasting Authority that radio and television are not appropriate forums in which to discuss issues related to homosexuality. In particular, "harmful effects on minors [could] not be excluded." Committee member Torkel Opsahl submitted a separate opinion, with which Committee members Lallah and Tarnopolsky associated themselves. Whilst Opsahl agreed with the conclusion of the Committee, he sought to clarify certain points. First, he noted that the Committee's conclusion prejudged neither the right to be different and live accordingly, protected by article 17 of the ICCPR, nor the right to general freedom of expression protected by article 19. Moreover, the conception and content of "public morals" in article 19(3) were "relative and changing":

State-imposed restrictions on freedom of expression must allow for this fact and should not be applied so as to perpetuate prejudice or promote intolerance. It is of special importance to protect freedom of expression as regards minority views, including those that offend, shock or disturb the majority.[108]

However, with respect to the programme policy of the Finnish Broadcasting Authority, Opsahl concluded:

It is true that self-imposed restrictions on publishing, or the internal policy programme of the media, may threaten the spirit of freedom of expression. Nevertheless, it is a matter of common sense that such decisions either entirely escape control by the Committee or must be accepted to a larger extent than externally imposed restrictions such as enforcement of criminal law or official censorship, neither of which took place in the present case. Not even media controlled by the State can under the Covenant be under an obligation to publish all that may be published.[109]

The 1994 decision of the Human Rights Committee in the Toonen case

On 25 December 1991, the First Optional Protocol to the International Covenant on Civil and Political Rights entered into force for Australia. In becoming a party to the Optional Protocol, Australia recognised the competence of the Human Rights Committee to receive and consider communications from individuals claiming to be victims of violations of any of the rights enumerated in the ICCPR. In a communication submitted to the Human Rights Committee on 26 December 1991, Nicholas Toonen, an activist for gay and lesbian rights in Tasmania, claimed to be a victim of violations by Australia of provisions of the ICCPR. For the first time, the Committee was required directly to consider questions relating to sexual orientation discrimination.

Nicholas Toonen challenged sections of the Tasmanian Criminal Code which criminalised various forms of sexual contacts between men, including all forms of sexual contacts between consenting adult homosexual men in private. Toonen submitted that these provisions violated articles 2(1), 17 and 26 of the ICCPR.

The challenged provisions of the Tasmanian legislation were said to violate the ICCPR in three respects: First, they made no distinction between sexual activity in public and in private and thus brought private activity into the public domain. Second, they distinguished between individuals in the exercise of their right to privacy on the basis of sexual activity, sexual orientation and sexual identity. Third, they did not outlaw homosexual activity between consenting homosexual women in private and outlawed only some forms of consenting heterosexual activity between adult men and women in private. On 5 November 1992, the Human Rights Committee declared Nicholas Toonen's communication admissible in as much as it appeared to raise issues under articles 17 and 26 of the ICCPR. The Committee found Toonen to be a victim within the meaning of the Optional Protocol. Although the impugned legislative provisions had not been enforced for several years, the author had made reasonable efforts to demonstrate that the threat of enforcement and the pervasive impact of the continued existence of the provisions on administrative practices and public opinion had affected him and continued to effect him personally.

In its examination of the merits, the Human Rights Committee first considered whether Toonen had been the victim of an unlawful or arbitrary interference with his privacy. The Committee found that the continued existence of the challenged provisions of the Tasmanian Criminal Code continuously and directly interfered with the author's privacy. The Tasmanian Department of Public Prosecutions' policy of not initiating proceedings in private homosexual conduct did not amount to a guarantee that no actions would be brought against homosexuals in the future. The Committee noted that the prohibition against private homosexual behaviour was provided for by the law. As to whether it could be deemed arbitrary, the Committee recalled that pursuant to its General Comment on article 17, the concept of arbitrariness was intended "to guarantee that even interference provided for by the law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the circumstances."[110]The Committee interpreted the requirement of reasonableness to require that any interference with privacy must be proportional to the end sought and be necessary in the circumstances of any given case. It rejected the public health argument of the Tasmanian authorities, noting that the criminalisation of homosexual practices could not be considered a reasonable means or proportionate measure to achieve the aim of preventing the spread of AIDS/HIV. The Committee also rejected the argument that for the purposes of article 17, moral issues are a matter of domestic concern. This would have opened the door to withdrawing from its scrutiny a potentially large number of statutes interfering with privacy. On the facts before it, the Human Rights Committee found a violation of articles 17(1) and 2(1). Responding to Australia's request for guidance on whether sexual orientation is an "other status" for the purposes of article 26, the Committee confined itself to noting that the reference to "sex" in articles 2(1) and 26 should be taken as including sexual orientation. Since it had found a violation of Toonen's rights under articles 17 and 2, the Committee declined to consider whether there had also been a violation of article 26. The Committee considered that an effective remedy would be the repeal of the disputed sections of the Tasmanian Criminal Code and asked to receive information from the State Party within 90 days on measures taken to give effect to its views.[111]

In it first views on a communication which directly raised questions relating to sexual orientation, the Human Rights Committee adopted a flexible approach on the question of admissibility. It accepted the author's submission as to the absence of effective domestic remedies. It was satisfied that he was a victim within the meaning of the Optional Protocol. In considering the merits of Toonen's communication, the Committee was more cautious. In particular, a majority of Committee Members preferred to conceptualise the decriminalisation of homosexuality in terms of privacy rather than of equality for gay men and lesbians. The Committee was primarily concerned with the private location in which sexual activity takes place. Its views contain no positive statements on equality before the law, the equal protection of the law or equal and effective protection against discrimination on the ground of sexual orientation. Sexual identity is relegated to the realm of private morality. The location of gay and lesbian sexuality in the private domain does not really challenge the notion that homosexuality is immoral, but simply affirms that the State has no role regulating what takes place there.[112]

Ultimately, the decriminalisation of gay male sexual activity contributes little to securing the public rights of gay men and lesbians. Perhaps the conceptual framework of privacy rights can be stretched to accommodate protection against some forms of sexual orientation discrimination, for example, the rights of gay men and lesbians to equal treatment in employment, accommodation and the provisions of goods and services. The utility of privacy rights in securing recognition of partnerships, equal rights of custody, access and adoption, and protection against attempts to prevent expressions of gay and lesbian identity in public is likely to be more limited.[113]The message which emanates from the Committee's decision in the case of Nicholas Toonen is one of "limited tolerance"[114], rather than recognition of equality. This result is clearly disappointing for many activists for gay and lesbian rights.[115]Despite the limitations of the approach adopted on the facts of Nicholas Toonen's case, the Human Rights Committee stated clearly that the proscription of discrimination in articles 2 and 26 of the ICCPR includes sexual orientation discrimination. The recognition by the Human Rights Committee of privacy rights in respect of male homosexual sexual activity is a small step in the struggle for the recognition and protection of gay and lesbian rights in all spheres of life.[116] It is worth recalling that this is a step which the unwieldy domestic machinery set up in implementation of Australia's international human rights obligations was unable or willing to take. The Human Rights Committee's views in Toonen are likely to strengthen campaigns in the United States and elsewhere to eliminate statutes criminalising the sexual behaviours of gay men and lesbians. In the US, some 24 States still have statutes which criminalise gay and lesbian sexual activity.[117] In a 1986 decision, Bowers v Hardwick, the US Supreme Court rejected the claim that homosexual sodomy is protected by constitutional privacy as "at best, facetious." [118] With US ratification of the ICCPR on 2 April 1992, such laws, whilst perhaps not unconstitutional, are likely to amount to a violation of the United States' obligations in the ICCPR.[119]

Children's Rights

Since the adoption in 1959 of the UN Declaration on the Rights of the Child, ideas about children's rights have developed significantly. In the late 70s, children's welfare advocates began arguing that important aspects of the rights of children were not covered by existing human rights standards and that the interests of children did not always and necessarily coincide with those of their guardians.[120] During preparations for the International Year of the Child in 1979, it was decided to give the force of treaty law to children's rights and a decade-long drafting process was commenced. The Convention on the Rights of the Child was adopted by the UN General Assembly on 20 November 1989 and entered into force on 2 September 1990. The Convention on the Rights of the Child recognises that whilst children must be guaranteed equal rights, they also need special care and attention in order to enjoy their rights in full. The Children's Convention contains a number of provisions found in other instruments, as well as novel provisions addressing concerns about the survival, protection and development of children and the right of children to express their views in all matters affecting them.

In a number of areas, international human rights norms derive from formulations developed in States which have taken "progressive" approaches to rights. Guarantees of "due process" and "equal protection", for example, are found in numerous Constitutions. In the case of children's rights, however, international law has moved significantly ahead of domestic constitutional practice. The Convention on the Rights of the Child contains a statement of children's rights in advance of anything formulated in rights terms at the national level.[121]The Children's Convention is the product of a trend toward conferring upon children full personhood, the result of which has transformed the way we view children and their basic human rights.[122] Whilst the Convention recognises that children are likely to require appropriate direction and guidance in the exercise of their rights, this is to be provided in a manner consistent with their "evolving capacities" (article 5 and 14). In most domestic jurisdictions, by contrast, the extent to which children have basic rights is largely unsettled.

A major aspect of the philosophy behind the Children's Convention is that children are equals with, and have the same inherent value as adults. The interests of parents and of the State are not paramount. Whenever official decisions affecting children are taken, their interests should be a primary consideration. Article 3(1) provides that:

In all actions concerning children, whether undertaken by public or private welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

To a significant extent, the "best interest of the child" principle challenges the dichotomy between the privacy of the family and the public domain of the State and its instrumentalities. As Bettina Cass has noted, the dominant consideration in Australian child welfare orthodoxy has been the protection of family privacy and autonomy, with the notable exceptions of intervention to protect the "welfare" of Aboriginal children and children of the poor and of "unworthy" mothers.[123] The Children's Convention questions the family/State dichotomy: It is the role of families to nurture and protect children and the role of States to provide adequate resources (health care, education, child care, family income) to enable them to do so. The Children's Convention imposes an obligation upon States to enact legislation concerning the rights of children with respect to their parents and concerning the obligations of parents with respect to their children. The Convention thus disaggregates the rights of children from the rights of families and constitutes children as independent actors with rights with respect to both parents and with respect to the State. It recognises the right of children to be actors in their own development, to express opinions and have them taken into account in the making of decisions relating to their lives. The rights of parents to deal with children are constrained and circumscribed and the conservative ideology of the family as unified, private and inviolate challenged.[124]

Since its adoption in 1989, the Children's Convention has been ratified or acceded to by some 174 States.[125] This is the largest number of States parties to any UN human rights instrument, ranking before the International Convention on the Elimination of All Forms of Racial Discrimination, which has 141 States parties. Countries from the South have responded positively to the Children's Convention.[126] Bangladesh, Bhutan, Cambodia, China, Indonesia, Laos, Myanmar, Pakistan, Sri Lanka, Thailand and Vietnam are amongst those States to have become parties. The unprecedented extent of ratification of the Children's Convention can be explained partly in terms of the demise of the Cold War and partly as a result of wide-spread concern about mounting evidence of hardship and abuse suffered by children. Most significant perhaps, is the fact that whilst laying down common standards, the Convention acknowledges the economic, social and cultural realities in different countries. The Convention is more sensitive than previous instruments to different cultural perspectives. A preambular paragraph notes "the importance of the traditions and cultural values of each people for the protection and harmonious development of the child." Article 5 refers to the responsibilities, rights and duties, not only of parents but also, "where applicable, the members of the extended family or community as provided for by local custom". Article 20(3) provides that care to be provided to children deprived of their family environment should include, amongst other things "kalafah of Islamic law": "When considering solutions, due regard shall be paid to the desirability of continuity in a child's upbringing and to the child's ethnic, religious, cultural and linguistic background". A recent compilation of case studies demonstrates the considerable scope for non-Western cultural influences to be taken into account in implementing the Convention in national contexts.[127]In a study of Burkino Faso, Akila Belembaogo concludes:

The interests of the child in the development of societies in African States will be catered for as much by the adaptation and creative application of customs and traditions as by new laws. In Burkino Faso, the action of judges undoubtedly constitutes a vital means of reconciling the interests of society with the best interests of the child."[128]

The Children's Convention also builds bridges between "rights" and "development". The Plan of Action adopted by the 1990 World Summit for Children states that "many developing countries, particularly the least developed and most indebted ones, will need substantial international cooperation to enable them to participate effectively in the world-wide effort for child survival, protection and development." The Convention and its implementation procedures are geared towards support for development of solutions, including technical advice and assistance. States parties are to undertake measures of implementation "to the maximum extent of their available resources" and "where needed, within the framework of international cooperation."(article 4) In this light, a number of donor countries such as Sweden, the Netherlands and Norway have reviewed their development assistance programmes.

The Children's Convention is afflicted by the ambiguities of any project trying to improve the life situation of a group by conferring rights. In the case of children's rights, the gaps and conflicts are particularly pronounced.[129] The recognition of children as fully endowed persons possessing fundamental human rights challenges the ways we think about the complex relations between children's voices, parental authority and State responsibility. Notwithstanding such tension, the Children's Convention is likely to be a significant tool in changing attitudes about the need to empower children and open spaces for childhood, in bringing about change in national law and practices and in mobilising resources for the implementation of solutions.

General Conclusions

Recent developments in the international human rights of women, gay men and lesbians, and children attest to the mutable, dynamic nature of human rights rhetoric. These developments refute the suggestion that rights are always appropriated by powerful groups. They suggest that there is scope to shift meanings and secure "progressive" interpretations of human rights norms. Whilst not hailing human rights as an antidote to all forms of oppression, individuals and groups in Australia should not underestimate the potential of the vocabulary of international human rights standards, and the relevance of international human rights procedures, in the articulation of their claims.

In Australia there is no Bill of Rights around which a jurisprudence of human rights might develop. We have no equivalent of the Canadian Charter of Rights and Freedoms, New Zealand Bill of Rights, Tanzanian Bill of Rights or US Bill of Rights. Australia has stood substantially outside the body of international human rights jurisprudence which has been developing since 1945. Despite a commitment to internationalism in Australia's human rights diplomacy, international statements of human rights have been enacted as part of domestic law in only a very small number of cases. Where this has occurred, the mechanisms for supervising compliance with those standards are fairly toothless.[130] Australia is not part of a regional human rights mechanism which might influence domestic law into conforming with international thinking on human rights issues.[131]

A significant step to redress this detachment from the international discussion of human rights was taken in 1991, with the accession by Australia to the First Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR). As a result of this development, Australian courts are now subject to the scrutiny of an international body equipped with a growing body of jurisprudence and supported by the weight of international opinion.[132] In Mabo v Queensland [No 2], the High Court explicitly endorsed the development of Australian law in conformity with the expectations of the international community. Justice Brennan, with whom Mason CJ and McHugh J agreed, said:

The opening up of international remedies to individuals pursuant to the Optional Protocol to the International Covenant on Civil and Political Rights brings to bear on the common law the powerful influence of the Covenant and the international standards it imports. The common law does not necessarily conform with international law, but international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights.[133]

The High Court has eschewed the formalistic debate over a transfomationist versus an incorporationist approach to the relationship of domestic and international law. Instead, the Court has adopted an approach which is likely to see Australian courts gradually bring domestic law into conformity with internationally mandated standards in the interpretation of legislation and the development of common law.[134] In the recent Teoh decision, the issue was whether Australia's ratification of the 1990 UN Convention on the Rights of the Child creates a legitimate expectation that government agencies will take its principles into account in making decisions affecting children. The Court held that ratification of a human rights treaty in itself, even in the absence of legislation incorporating its provisions into domestic law, creates a legitimate expectation that the Commonwealth government will act in accordance with the treaty. In a joint judgment, Mason CJ and Deane J said:

[R]atification by Australia of an international convention is not to be dismissed as a merely platitudinous or ineffectual act, particularly when the instrument evidences international accepted standards to be applied by courts and administrative authorities in dealing with basic human rights affecting the family and children. Rather, ratification of a convention is a positive statement by the executive government of this country to the world and to the Australian peoples that the executive government and its agencies will act in accordance with the convention. [135]

In an extraordinary statement on 10 May 1995, the Attorney-General and the Minister for Foreign Affairs and Trade announced the Government's intention to enact legislation to override the Teoh decision. The Government's response to Teoh has created a peculiar situation. In order to place itself in good international company, Australia has accepted individual complaint mechanisms under international human rights treaties. However, the Government has actively sought to prevent Australian administrators and tribunals from importing the growing body of human rights jurisprudence into domestic practice. Whilst international human rights standards operate as a legitimate influence upon judges developing the common law and interpreting statutes, the same standards are to have no effect upon decision-makers. Thus, Australia's international human rights obligations appear to have different implications for the judicial and executive branches of government. These obligations include not only those contained in the Convention on the Rights of the Child but also the ICCPR, which has not been incorporated into domestic law and is simply declared to be an instrument relating to human rights and freedoms for the purposes of s 47 of the Human Rights and Equal Opportunity Act 1986 (Cth). In the High Court's 1992 decision in Dietrich, Mason CJ and McHugh J noted:

On one view, it may seem curious that the Executive Government has seen fit to expose Australia to the potential censure of the Human Rights Committee without endeavouring to ensure that the rights enshrined in the ICCPR are incorporated into domestic law, but such an approach is clearly permissible.[136]

One possible consequence of these developments is that Australians, not entitled to expect that their human rights will be observed in public administration, and confronted with piece-meal enactment of the provisions of international treaties in domestic law, will increasingly seek relief pursuant to international procedures. International human rights law has implications for many of the issues in respect of which groups in Australia are seeking political and social change. Perhaps we might start thinking more about how international human rights norms might be interpreted and deployed to address the claims of individuals and groups whose voices are rarely heard, or have little resonance, in our political and legal institutions.

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Footnotes

[*] Postdoctoral Research Fellow, Faculty of Law, University of New South Wales. I would like to thank David Brown, Arthur Glass, Montserrat Gorina, Reg Graycar, Jenni Millbank, Garth Nettheim and Renée Williamson-Noble for their comments on an earlier draft of this paper.

[1] K Engle, "International Human Rights and Feminism: When Two Discourses Meet", (1992) 13 Michigan Journal of International Law 517 at 518.

[2] One of the biggest challenges to the possibility of a theory of human rights is that of anti-foundationalism, according to which the doctrine of human rights lacks a theoretical foundation because no doctrine can have a theoretical foundation. The anti-foundationalist approach to human rights does not reject the validity of human rights doctrine, only the claim that its validity has a foundation deeper than the beliefs and values of human rights supporters: Richard Rorty argues that the human rights cause needs passion and courage, not reason and theory. R Rorty, Contingency, Irony and Solidarity (Cambridge University Press, Cambridge, 1989), p 63, n.21; "Human Rights, Rationality and Sentimentality", in S Shute & S Hurley (eds), On Human Rights: The Oxford Amnesty Lectures 1993 (Basic Books, New York 1993), 111. See also M Freeman, "The Philosophical Foundations of Human Rights", (1994) 16 Human Rights Quarterly 491 at 500.

[3] J Fudge & H Glasbeek, "The Politics of Rights: A Politics with Little Class", (1992) 1 Social and Legal Studies 45 at 50.

[4] D Herman, "Beyond the Rights Debate", (1993) 2 Social and Legal Studies 25 at 25; H Glasbeek, "A No Frills Look at the Charter of Rights and Freedoms or How Politicians and Lawyers Hide Reality", (1989) 9 Windsor Yearbook of Access to Justice 293; E Kingdom, What's Wrong with Rights: Problems for a Feminist Perspective of Law (Edinburgh University Press, 1991); M Mandel, The Charter of Rights and the Legalisation of Politics in Canada, (Wall and Simpson, Toronto, 1989); C Smart, Feminism and the Power of Law (Routledge, London, 1989).

[5] Fudge & Glasbeek, op cit at 48-49, 61, 63-64, 66.

[6] Fudge & Glasbeek, op cit at 61, 54-56.

[7] This is "the basic democratic dilemma" that unelected judges decide issues of policy: H Glasbeek & M Mandel, "The Legalisation of Politics in Advanced Capitalism: The Canadian Charter of Rights and Freedoms", (1984) 2 Socialist Studies 84 at 100; see also P Hanks, "Moving Towards the Legalisation of Politics", (1988) 6 Law in Context 80 at 93.

[8] Fudge & Glasbeek, op cit at 58-59. Michael Mandel has characterised the Canadian Charter as a "hoax": Mandel, op cit, p 308.

[9] Fudge & Glasbeek, op cit at 62, 66.

[10] M Tushnet, "Rights: An Essay in Informal Political Theory", (1989) 17 Politics and Society 403 at 410.

[11] Tushnet, 1989, op cit at 409; M Tushnet, "An Essay on Rights", (1984) 62 Texas Law Review 1363 at 1370-72.

[12] P Gabel, "The Phenomenology of Rights Consciousness and the Pact of the Withdrawn Selves", (1984) 62 Texas Law Review 1563 at 1577; D Kairys, "Freedom of Speech", in D Kairys (ed), The Politics of Law (Pantheon Books, New York, 1982), pp 140-41.

[13] Tushnet, 1984, op cit at 1386, 1381.

[14] M Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (Finnish Lawyers' Publishing Company, Helsinki, 1989), pp 68-73; see also N Purvis, "Critical Legal Studies in Public International Law", (1991) 32 Harvard International Law Journal 81 at 93, note 61.

[15] Purvis, ibid at 93.

[16] J Fudge, "The Public/Private Distinction: The Possibilities and Limits to the Use of Charter Litigation to Further Feminist Struggles", (1987) 25 Osgoode Hall Law Journal 485 at 533.

[17] J Fudge, "The Effect of Entrenching a Bill of Rights Upon Political Discourse: Feminist Demands and Sexual Violence in Canada", (1989) 17 International Journal of the Sociology of Law 445 at 459.

[18] Kingdom, op cit.

[19] Smart, op cit, p 3.

[20] Smart, op cit, pp 81-82, 144-147.

[21] H Charlesworth, C Chinkin & S Wright, "Feminist Approaches to International Law", (1991) 85 American Journal of International Law 613 at 644.

[22] S Wright, "Economic Rights and Social Justice: A Feminist Analysis of Some International Human Rights Conventions", (1992) 11 Australian Yearbook of International Law 177 at 256-258; S Wright, "Economic Rights, Social Justice and the State: A Feminist Reappraisal", in D Dallmeyer (ed), Reconceiving Reality: Women and International Law (Studies in Transnational Legal Policy No 25, American Society of International Law, Washington DC, 1993), 117 at 118; also H Charlesworth, "Alienating Oscar? Feminist Analysis of International Law", in Dallmeyer (ed), op cit, 1 at 7.

[23] The feminist problematisation of the dichotomisation of public and private does not suggest that the law operates according to a single division into "public" and "private" realms. Examples of State regulation of the private realm and interference with "family autonomy" abound: R Eisler, "Human Rights: Towards an Integrated Theory for Action", (1987) 9 Human Rights Quarterly 287 at 293; also G Binion, "Human Rights: A Feminist Perspective", (1995) 17 Human Rights Quarterly 508 at 516. See generally K O'Donovan, Sexual Divisions in Law (Weidenfeld and Nicholson, London, 1985); F Olsen, "The Family and the Market: A Study of Ideology and Legal Reform", (1983) 96 Harvard Law Review 1497; F Olsen, "The Myth of State Intervention in the Family" (1985) 18 University of Michigan Journal of Law Reform 835; also Charlesworth, Chinkin & Wright, op cit at 627, 629; K Engle, "After the Collapse of the Public/Private Distinction: Strategising Women's Rights", in Dallmeyer (ed), op cit at 144-147; R Graycar & J Morgan, The Hidden Gender of Law, (Federation Press, Sydney, 1990), pp 30-40; C Pateman, The Sexual Contract, (Polity Press, Cambridge, 1988); Wright, "Economic Rights, Social Justice and the State", op cit at 120-121.

[24] C MacKinnon, Towards a Feminist Theory of the State (Harvard University Press, Cambridge MA, 1989), p 194.

[25] C MacKinnon, "Comment: Theory is not a Luxury", in Dallmeyer (ed), op cit, 83 at 90.

[26] Charlesworth, "Alienating Oscar? Feminist Analysis of International Law", op cit at 8. See generally A Byrnes, "Women, Feminism and International Human Rights Law: Methodological Myopia, Fundamental Flaws or Meaningful Marginalisation", [1988] AUYrBkIntLaw 10; (1992) 12 Australian Yearbook of International Law 205; Engle, 1992, op cit at 517.

[27] Wright, "Economic Rights, Social Justice and the State", op cit at 121-123.

[28] Charlesworth, Chinkin & Wright, op cit at 629. For other examples of international law's failure to accommodate the realities of women's lives see Charlesworth, Chinkin & Wright, op cit at 630-631, 638-641, 641-643; H Charlesworth, "Worlds Apart: Public/Private Distinctions in International Law", in M Thornton (ed), Public/Private: Feminist Legal Debates (Oxford University Press, Melbourne, 1995) 243; J Gardam, "The Law of Armed Conflict: A Gendered Regime", in Dallmeyer (ed), op cit, 171.

[29] Binion, op cit at 516.

[30] P Alston, "The Best Interests Principle: Towards a Reconciliation of Culture and Human Rights", in P Alston (ed), The Best Interests of the Child: Reconciling Culture and Human Rights (Clarendon Press, Oxford, 1994), 1 at 5.

[31] A Pollis & P Schwab, "Human Rights: A Western Construct with Limited Applicability", in A Pollis & P Schwab (eds), Human Rights: Cultural and Ideological Perspectives (Praeger Publishers, New York, 1980), at 1.

[32] J Donnelly, Universal Human Rights in Theory and Practice (Cornell Press, Ithaca, 1989), at 63-65.

[33] Wright, "Economic Rights, Social Justice and the State", op cit at 120.

[34] Donnelly, op cit at 23-25, 50, 59, 62, 77, 123.

[35] Y Gai, "The Asian Perspective on Human Rights", Asian Human Rights Commission Newsletter, Vol 5, October 1993, 11 at 11.

[36] Regional Meetings: Report by the Secretariat: Bangkok Declaration on Human Rights, UN Doc A/CONF 157/PC/83, at 2.

[37] A Ibrahim, "Media and Society in Asia", Keynote Speech by Anwar Ibrahim, Deputy Prime Minister of Malaysia (Asian Press Forum, Hong Kong, December 2, 1994), at 4-5.

[38] A Hunt, Explorations in Law and Society: Towards a Constitutive Theory of Law (Routledge, New York, 1993), p 228.

[39] Herman, 1993, op cit at 25.

[40] F Olsen, "Liberal Rights and Critical Legal Theory", in C Joerges & D Trubek (eds), Critical Legal Thought; An American-German Debate (Nomos, Baden-Baden, 1989), 241 at 253.

[41] For example, E Laclau and C Mouffe, Hegemony and Socialist Strategy: Towards a Radical Politics, (Verso, London, 1985).

[42] Ibid, pp 104, 108.

[43] Herman, 1993, op cit at 32, following C Mouffe, "Preface: Democratic Politics Today", in C Mouffe (ed), Dimensions of Radical Democracy: Pluralism, Citizenship, Community (Verso, London, 1992), at 1.

[44] K Crenshaw, "Race, Reform and Retrenchment: Transformation and Legitimation in Anti-Discrimination Law", in Joerges & Trubek (eds), op cit, 255 at 293; also R Delgado, "The Ethereal Scholar: Does Critical Legal Studies Have What Minorities Want?", Harvard Civil Rights-Civil Liberties Review 301 at 306-07.

[45] P Williams, The Alchemy of Race and Rights (Harvard University Press, Cambridge & London, 1991), p 149.

[46] Williams, op cit, p 165.

[47] D Kennedy, "Critical Labor Law Theory: A Comment", (1981) 4 Industrial Relations Law Journal 503 at 506.

[48] Herman, 1993, op cit at 30; D Herman: "The Good, the Bad and the Smugly: Perspectives on the Canadian Charter of Rights and Freedoms", (1994) 14 Oxford Journal of Legal Studies 589. The leading case is Andrews v Law Society of British Columbia ((1989) 11 SCR 143) in which the Supreme Court adopted "a comparatively progressive - and contextualised -" understanding of the s 15 Charter equality guarantee: J Morgan, "Equality Rights in the Australian Context: A Feminist Assessment", in P Alston (ed), Towards an Australian Bill of Rights (Centre for International and Public Law/Human Rights and Equal Opportunity Commission, 1994), 123 at 125. In Andrews, the Court rejected a formal equality or equal treatment approach and endorsed an approach which examines the actual impact of a law on the individual or group concerned ((1989) 11 SCR 143, at 167-168). Canadian courts have made clear that the paradigmatic s 15 groups are those which can demonstrate a history of disadvantage: Herman, 1994, op cit at 590.

[49] C MacKinnon, "Crimes of War, Crimes of Peace", in Shute & Hurley (eds), op cit 83 at 106-107.

[50] E Schneider, "The Dialectics of Rights and Politics: Perspectives from the Women's Movement, (1986) 61 New York University Law Review 589 at 598.

[51] Morgan, "Equality Rights in the Australian Context: A Feminist Assessment", op cit at 131.

[52] H Charlesworth, "The Australian Reluctance About Rights", in Alston (ed), Towards an Australian Bill of Rights, op cit, 21 at 49. With particular reference to the international law of human rights: Wright, "Economic Rights, Social Justice and the State", op cit at 120. On the importance of criticising the ability of international law - as presently conceived - to deal with women's oppression and, at the same time, trying to use international law to deal with women's oppression: F Olsen, "Feminist Critiques of the Public/Private Distinction", in Dallmeyer (ed), Reconceiving Reality: Women and International Law, op cit, 157 at 165-166.

[53] Gai, op cit at 15.

[54] A An-Na'im, "Cultural Transformation and Normative Consensus on the Best Interests of the Child", in Alston (ed), The Best Interests of the Child, op cit, 62 at 67.

[55] Ibid at 63; see also Alston, "The Best Interests Principle: Towards A Reconciliation of Culture and Human Rights", op cit at 19.

[56] Herman, 1993, op cit at 31; Herman, 1994, op cit at 603.

[57] Engle, 1992, op cit at 607.

[58] Herman, 1993, op cit at 30.

[59] Williams, op cit, 159.

[60] Herman, 1993, op cit at 32.

[61] Engle, 1992, op cit at 520.

[62] Herman notes that in Canada, for example, race and disability have almost never been the subject of a Charter challenge: Herman, 1994, op cit at 590-91.

[63] C Stychin, "Essential Rights and Contested Identities: Sexual Orientation and Equality Rights Jurisprudence in Canada", (1995) 8 The Canadian Journal of Law and Jurisprudence 49 at 52.

[64] Critical race theorists have suggested that CLS is ultimately to be understood as "a deeply American phenomenon", within the "textile of the global production of `America': P Cheah, "Stagings of the Margin: The Limits of Critical Race Theory", (1994) 2 The Australian Feminist Law Journal 13, n 1.

[65] Feminists from developing countries have been highly critical of the wholesale application of Western feminist theories and the creation of monolithic, unproblematised discursive categories such as "Third- World women" Chandra Mohanty remonstrates: While radical and liberal feminist assumptions of women as a sex class might elucidate (however inadequately) the autonomy of particular women's struggles in the West, the application of the notion of women as a homogenous category to women in the third world colonizes and appropriates the pluralities of the simultaneous location of different groups of women in social class and ethnic frameworks; in doing so it ultimately robs them of their historical and political agency.

C Mohanty, "Under Western Eyes: Feminist Scholarship and Colonial Discourses", in C Mohanty, A Russo & L Torres, (eds), Third World Women and the Politics of Feminism (Indiana University Press, Bloomington & Indianapolis, 1991), 51 at 71-72. Some Third World feminists have questioned the relevance of Western feminist categories to their lives. Some have suggested, for example, that the public/private distinction, central to much western feminist theorising, may not be relevant to Third World women, who have not had "the benefit of the economic conditions that underlie the ... distinction" and have always been subject to state intervention in their domestic lives: A Hurtado, "Relating to Privilege: Seduction and Rejection in the Subordination of White Women of Color", (1989) 14 Signs 833 at 849; cited in C Mohanty, "Cartographies of Struggle: Third World Women and the Politics of Feminism", in Mohanty, Russo & Torres (eds), op cit, 1 at 9. Women of colour and Indigenous women have also challenged the ethnocentric, essentialising analytical categories of western feminism: K Crenshaw, "Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Anti-Discrimination Doctrine, Feminist Theory and Antiracist Politics" 1989 University of Chicago Legal Forum 139; A Harris, "Categorical Discourse and Dominance Theory", [1989-90] Berkeley Women's Law Journal 181 at 182; A Harris, "Race and Essentialism in Feminist Legal Theory", (1990) 42 Stanford Law Review 581; P Williams, "Dissolving the Sameness/Difference Debate: A Postmodern Path Beyond Essentialism in Feminist and Critical Race Theory", [1991] Duke Law Journal 296. In Australia, Aboriginal lawyer Larissa Behrendt has argued: "Aboriginal women and non-Aboriginal women do not have a shared experience. This is due to the potent combination of racism and sexism in the lives of black women." Behrendt notes that Aboriginal women demand their own voice in the development of feminist jurisprudence: L Behrendt, "Aboriginal Women and the White Lies of the Feminist Movement", (1993) 1 The Australian Feminist Law Journal 27 at 43, 41. See generally J Butler, "Contingent Foundations: Feminism and the Question of `Postmodernism'", in J Butler & J Scott (ed), Feminists Theorise the Political (Routledge, New York, 1992), at 7-8; also A Bunting, "Theorizing Women's Cultural Diversity in Feminist International Human Rights Strategies", (1993) 20 Journal of Law and Society 6 at 15-16; A Howe, "White Western Feminism Meets International Law, (1994) 4 The Australian Feminist Law Journal 63 at 67-68.

[66] Bunting, op cit at 15.

[67] Bunting, op cit at 11; Stychin, op cit at 52-53, 57.

[68] Martha Nussbaum is deeply concerned about the implications of contemporary assaults on "essentialism" and on nonrelative accounts of human functioning. She argues that a version of essentialism - the view that human life has certain central defining features - is urgently needed in public life. Under the banner of racially and politically correct "anti-essentialism" she sees people deeply committed to the good of women and men in developing countries taking up positions that converge with positions of reaction, oppression and sexism. Nussbaum contends that to give up on all evaluation and on a normative account of the human being and human functioning is to turn things over to a free play of forces in a world in which the social forces affecting the lives of women, minorities and the poor are rarely benign: M Nussbaum, "Human Functioning and Social Justice: In Defense of Aristotelian Essentialism", (1992) 20 Political Theory 202, at 212; also M Nussbaum, "Valuing Values: A Case for Reasoned Commitment", (1994) 6 Yale Journal of Law and Humanities 197 at 216.

[69] M Freeman, "Women, Development and Justice: Using the International Convention on Women's Rights", in J Kerr (ed), Ours by Right: Women's Rights as Human Rights (Zed Books, London, 1993), 93 at 95.

[70] R Howard, "Dignity, Community and Human Rights", in A An-Na'im (ed), Human Rights in Cross-Cultural Perspectives (University of Pennsylvania Press, Philadelphia., 1992), at 81.

[71] P Alston, "The Best Interests Principle: Towards A Reconciliation of Culture and Human Rights", in Alston (ed), The Best Interests of the Child: Reconciling Culture and Human Rights, op cit, 1 at 18.

[72] J Bauer, "Human Rights in the Post-Cold War Era: Policy Options for Asia", (1994) 4 Human Rights Forum 3 at 25; also Australian-Asian Perceptions Project, Perceiving `Human Rights', Working Paper No 2 (Academy of the Social Sciences in Australia and the Asia-Australia Institute, University of New South Wales, 1993), p 28.

[73] L Reanda, The Commission on the Status of Women, in P Alston (ed) The United Nations and Human Rights (Clarendon Press, Oxford, 1992), 265 at 302.

[74] K Tomasevski (ed), Women and Human Rights (Zed Books, London & New Jersey, 1993), at xiv; also H Charlesworth & C Chinkin, "The Gender of Jus Cogens", (1993) 15 Human Rights Quarterly 63.

[75] General Assembly resolution 40/36.

[76] CSW resolution 1884/14, 24 May 1984.

[77] ECOSOC resolution 1986/18 of 23 May 1986, par 2.

[78] ECOSOC resolution 1987/24, 1987/121.

[79] See generally H Charlesworth, "The Draft Declaration on Violence Against Women", Australian and New Zealand Society of International Law, Proceedings of First Annual Meeting, Canberra 28-30 May 1993, at 99.

[80] In 1991, the Organisation of American States convened an expert meeting to prepare a regional convention on women and violence. The Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women (Convention of Belem do Para) was adopted on 9 June 1994. Unlike the UN's Women's Convention, the Convention of Belem do Para provides an individual right of petition and a right for non-governmental organisations to lodge complaints with the Inter-American Commission of Human Rights.

[81] See generally Charlesworth, "The Draft Declaration on Violence Against Women", op cit.

[82] Charlesworth & Chinkin, 1993, op cit at 63; also Byrnes, op cit at 213.

[83] Compilation of General Comments and General recommendations adopted by Human Rights Treaty Bodies, UN Doc HRI/GEN/1/Rev 1 (29 July 1994) at 84-90.

[84] D Otto, "Violence Against Women - Something other than a Violation of Human Rights?" (1993) 1 The Australian Feminist Law Journal 159 at 160.

[85] At its fiftieth session in 1994, the UN Commission on Human Rights decided to appoint a special rapporteur on violence against women to report on an annual basis: Commission on Human Rights resolution 1994/45, 4 March 1994.

[86] In 1986 the Sub-Commission on the Prevention of Discrimination and Protection of Minorities established a Working Group on Traditional Practices affecting the Health of Women and Children: see Report of the Working Group on Traditional Practices affecting the Health of Women and Children, UN Doc E/CN 4/1986/42 (4 February 1986). The Sub-Commission has also appointed a Special Rapporteur: see Study on traditional practices affecting the health of women and children: Final report by the Special Rapporteur, Mrs Halima Embarek Warzazi, UN Doc E/CN 4/Sub 2/1991/6 (5 July 1991). Whilst a number of African women are prominent in the battle against feminist circumcision, many Third World women have expressed a sense of alienation from the sensationalistic nature of the campaign of some First-World feminists, as well as from the agenda-setting process, which fails to address their self-defined needs and disconnects female circumcision from the totality of their oppression: C Johnson-Odim, "Common Themes, Different Contexts: Third World Women and Feminism", in Mohanty, Russo & Torres, (eds), op cit, 314 at 322.

[87] Sub-Commission on Prevention of Discrimination and Protection of Minorities, Report of the Working Group on Traditional Practices affecting the Health of Women and Children UN Doc E/CN 4/1986/42 (4 February 1986), par 118.

[88] Sub-Commission on Prevention of Discrimination and Protection of Minorities resolution 1994/43, 26 August 1994.

[89] Commission on Human Rights resolution 1994/45, 4 March 1994

[90] The idea of an optional protocol to the Women's Convention was supported by the 1993 World Conference on Human Rights (see Vienna Declaration and Programme of Action Part II para 40) and endorsed by the 1995 session of CEDAW. The CSW has recommended to ECOSOC that CSW should establish a working group at its next session to elaborate an optional protocol: R Cook, "The Elimination of Sexual Apartheid: Prospects for the Fourth World Conference on Women" in Issue Papers on World Conferences No 5 (American Society of International Law, 1995), at 28.

[91] CEDAW is also considerably less resourced and mandated to meet less frequently than other treaty bodies. Whilst the Committee on the Elimination of Racial Discrimination generally meets for three weeks twice a year and the Human Rights Committee for a total of nine weeks, CEDAW is limited to a single two week annual meeting: R Jackson, "The Committee on the Elimination of Discrimination Against Women", in Alston (ed), The United Nations and Human Rights, op cit, 444 at 448; see also MacKinnon, "Comment: Theory is not a Luxury", op cit at 89. Much controversy has been generated by the number of reservations submitted with respect to the obligations of States Parties to the Women's Convention: B Clark, "The Vienna Convention Reservations regime and the Convention on Discrimination Against Women", (1991) 85 American Journal of International Law 281; R Cook, "Reservations to the Convention on the Elimination of All Forms of Discrimination Against Women", (1990) 3 Virginia Journal of International Law 643; Charlesworth, Chinkin & Wright, op cit at 632-634. In a resolution adopted in 1992, the Sub-Commission on Prevention of Discrimination and Protection of Minorities expressed concern that over 20 States Parties had filed more than 80 substantive reservations to the Convention. The Sub-Commission was concerned that certain of those reservations, including those in relation to the adoption of policies and measures in implementation of the convention (article 2), political and public life (article 7), discrimination in the field of employment (article 11), equality of men and women before the law (article 15) and marriage and family relations (article 16) "might diminish the international legal norm and legitimise its violation". In a 1994 resolution, the Sub-Commission requested the Secretary-General to obtain the views of CEDAW and CSW on the desirability of an advisory opinion on the value and legal effect of the reservations to the Convention (Sub-Commission resolution 1994/43).

[92] See generally M Freeman, "Women, Law, and Land at the Local Level: Claiming Women's Human Rights in Domestic Legal Systems", (1994) 16 Human Rights Quarterly 559 at 562.

[93] Ephraim v Pastory [1990] LRC (Const) 757 at 770. See Freeman, 1994, op cit at 570-571; Tomasevski, 1993, op cit at 133; also B Rwezaura, "Tanzania: Family Law and the New Bill of Rights", (1990-91) 29 Journal of Family Law 453 at 457.

[94] Ephraim v Pastory [1990] LRC (Const) 757 at 770.

[95] Dow v Attorney-General [1991] LRC (Const) 574; Attorney-General v Dow [1992] LRC (Const) 623. See Freeman, 1994, op cit at 567-569.

[96] [1991] LRC (Const) 574 at 586.

[97] Ibid at 587.

[98] [1992] LRC (Const) 623 at 657. See Tomasevski, op cit at 133; also "A legal victory for women in Botswana", Human Rights Tribune, Vol 1, No 1, Winter 1992, at 14.

[99] Home Office, Report of the Committee on Homosexual Offences and Prostitution, Cmnd 247 (1957), p 25.

[100] Dudgeon v United Kingdom (1981) 5 EHRR 149; Norris v Ireland [1988] ECHR 22; (1988) 13 EHRR 186; Modinos v Cyprus [1993] ECHR 19; (1993) 16 EHRR 485.

[101] Herman, 1993, op cit at 30.

[102] D Sanders, "Constructing Lesbian and Gay Rights", (1994) 9 Canadian Journal of Law and Society 99 at 113-116; Herman, 1994, op cit at 592-94; Stychin, op cit at 153.

[103] Sanders, ibid at 125-127.

[104] Ibid at 104.

[105] Herman, 1993, op cit at 32.

[106] Leo Hertzberg et al v Finland, Communication No 61/1979: Human Rights Committee, Selected Decision under the Optional Protocol (second to sixteenth sessions), UN Doc CCPR/C/OP/1 (1985), at 124. See M Kirby, "Implications of the Internationalisation of Human Rights Law", in Alston (ed), Towards an Australian Bill of Rights, op cit, 267 at 287.

[107] UN Doc CCPR/C/OP/1 (1985), at 126, para 10.3.

[108] UN Doc CCPR/C/OP/1 (1985), at 127.

[109] Ibid.

[110] General Comment 16 (32), para 4; see UN Doc CCPR/C/21/Rev 1 (19 May 1989).

[111] In an individual opinion, Committee Member Wennergren stated that he did not consider it unnecessary to consider whether there was a violation of article 26. In his opinion, a finding of a violation of article 17 should be deduced from a violation of article 26. Wennergren concurred with the view that the reference to "sex" in articles 2 (1) and 26 should be taken as including sexual orientation. This being so, the criminalisation of certain behaviour under the Tasmanian Criminal Code should be considered incompatible with article 26. Wennergren noted that the prohibition of sexual intercourse between men and between women involved a distinction between heterosexuals and homosexuals which set aside the principle of equality before the law. The principle of equality before the law was also set aside by the criminalisation of other sexual contacts between consenting men without at the same time criminalising such contacts between women. Wennergren considered the discriminatory criminal legislation to be incompatible with the Covenant, as it limited the right to equality before the law. The criminalisation interfered with privacy to an unjustifiable extent and therefore also constituted a violation of article 17.

[112] See H Charlesworth, "Equality and Non-Discrimination under the Optional Protocol", unpublished paper delivered at a symposium on "Internationalising Human Rights Protection in Australia: Australia's Accession to the First International Protocol to the International Covenant on Civil and Political Rights", Law School, University of Melbourne, 10 December 1991, at 6; also R Croome, "Australian Gay Rights Case goes to the United Nations", (1992) 2 Australian Gay and Lesbian Law Journal 55 at 59.

[113] R Croome, "Out and About": The Public Rights of Lesbians and Gays in Tasmania, (1992) 2 Australian Gay and Lesbian Law Journal 63.

[114] R Wintemute "Sexual Orientation Discrimination", in C McCrudden & G Chambers (eds), Individual Rights and the Law (Clarendon Press, Oxford, 1994), 491 at 522

[115] W Morgan, "Recognising Evil for What it Is: Tasmanian, Sexual Perversity and the United Nations", [1994] MelbULawRw 10; (1994) 19 Melbourne University Law Review 740 at 154.

[116] S Pritchard, "Decision of UN Human Rights Committee in Tasmanian Gay Law Reform Case", Human Rights Defender, Vol 2, No 60, February 1993; also H Charlesworth, "Protecting Human Rights", Law Institute Journal, June 1994, 462.

[117] Whilst most doctrinal legal discussion has focussed on the criminalisation of the sexuality of gay men, there is ample evidence of the criminalisation and prosecution of expressions of lesbian sexuality. Currently, about half the jurisdictions in the US have statutes criminalising lesbian sexual expressions: R Robson, Lesbian (Outlaw): Survival under the Rule of Law (Firebrand Books, Ithaca New York, 1992), p 58. Whilst these statutes are rarely enforced, they are frequently used to justify discrimination against lesbians. The Supreme Court of Virginia recently affirmed the trial court's decision that the unlawfulness of a mother's homosexual conduct (as a Class 6 felony in the Commonwealth of Virginia) was a relevant factor in determining her unfitness for custody of her child: Bottoms v Bottoms 457 SE 2d 102 (Va Sup Ct 1995); 444 SE 2d 276 (Va Ct App 1994).

[118] [1986] USSC 194; (1986) 478 US 186 at 194. See J Self, "Bowers v Hardwick: A Study of Agression", (1988) 10 Human Rights Quarterly 395; B Thornton, "The New International Jurisprudence on the Right to Privacy: A Head-on Collision with Bowers v Hardwick", (1995) 58 Albany Law Review 725.

[119] Thornton, ibid at 774-75.

[120] T Hammarberg, "The Rights of the Child in Developing Countries: International Norms and Procedures for Real Change?", [1994] Human Rights in Developing Countries Yearbook 9 at 10.

[121] P Alston & S Parker, "Introduction", in P Alston & S Parker (eds) Children, Rights, and the Law (Clarendon Press, Oxford, 1992), vi at vi.

[122] See R Levesque, "International Children's Rights Grow Up: Implications for American Jurisprudence and Domestic Policy", (1994) 24 Case Western International Law Journal 193, 195.

[123] B Cass, "The Limits of the Public/Private Dichotomy: A Comment on Coady & Coady", in Alston & Parker (eds), 140 at 141.

[124] Ibid at 142.

[125] United Nations, Human Rights International Instruments: Chart of Ratifications as at 31 December 1994 (United Nations, New York & Geneva, 1995), at 10.

[126] Hammarberg, op cit at 24.

[127] P Alston, "The Best Interests Principle: Towards A Reconciliation of Culture and Human Rights", in Alston (ed), The Best Interests of the Child: Reconciling Culture and Human Rights, op cit, 1 at 19.

[128] A Belembaogo, "The Best Interests of the Child - The Case of Burkino Faso", in Alston (ed), The Best Interests of the Child: Reconciling Culture and Human Rights, op cit, 202 at 223.

[129] See generally F Olsen, "Feminist Approaches to Children's Rights", in Alston & S Parker (eds), op cit 192 at 217.

[130] H Charlesworth, "Australia's Implementation of its Human Rights Treaty Obligations", paper for the conference on "Australia in a Global Context: The United Nations and Law-Making for the Twenty-First Century", University House, Canberra, 25-26 May 1995.

[131] Kirby, "Implications of the Internationalisation of Human Rights Law", op cit at 268.

[132] Ibid at 296.

[133] (1992) 175 CLR 1 at 42.

[134] In numerous recent decisions Australian courts have sought to develop the common law and to construe the terms of statutes to ensure consistency with international law, in particular with international human rights norms: see extracurially M Kirby, "From Bangalore to Balliol: A View from the Antipodes" [1993] UNSWLawJl 15; (1993) 16 University of New South Wales Law Journal 363; P Mathew, "International Law and the Protection of Human Rights in Australia: Recent Trends", [1995] SydLawRw 15; (1995) 17 Sydney Law Review 177.

[135] Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 128 ALR 353 at 365. See M Allars, " One Small Step for Legal Doctrine, One Giant Leap Towards Integrity in Government: Teoh's Case and the Internationalisation of Administrative Law", [1995] SydLawRw 16; (1995) 17 Sydney Law Review 204.

[136] Dietrich v R [1992] HCA 57; (1992) 177 CLR 292 at 391.

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