Sex and International Tribunals. Chiseche Salome Mibenge

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      With regard to CEDAW’s reference to prostitutes and trafficked women, in particular, the failure to address the intersection of gender discrimination with other bases of discrimination, in particular race discrimination, weakens any protection measures. The international traffic in women is in many cases embedded with beliefs in the racial inferiority of women, whether they are trafficked Slavic women being received in the Netherlands, Filipino women in the United States, Korean women in Japan, Senegalese women in Spain, or Albanian women in Italy. In order for states to respond effectively (and not only with the arrest and/or deportation of prostitutes and trafficked women), international norms that recognize the intersecting and complex issues that lead to violations of the rights of women must guide them.

      A founding principle of the women-of-color movement states that the struggle against patriarchy is linked to the struggle against all forms of subordination, and therefore all forms and patterns of oppression and subordination are interlocking and mutually reinforcing.⁸ Similarly, the theories of Third World feminists have insisted on the complex interrelationships between feminist, antiracist, and nationalist struggles (Ferguson 2003, quoted in Anghie 2008: 46). CEDAW’s narrative of discrimination against women and inequality suggests that the subordination of women on the grounds of sex and gender occurs along a single category axis. Kimberlé Crenshaw argues that this axis “erases black women” in the conceptualization, identification, and remediation of race and sex discrimination by limiting inquiry to the experiences of otherwise privileged members of the group (1989: 139–40). Crenshaw points out that this approach, when applied to feminist theory and antiracist politics analysis, creates a paradigm of sex discrimination that tends to be based on the experiences of white middle-class women while the model of race discrimination tends to be based on the experience of black middle-class men (ibid.: 151).

      The Human Rights Committee (HRC) and the CERD Committee are committees for the ICCPR and the CERD, respectively. The HRC was established to monitor the implementation of the ICCPR, and the CERD Committee monitors implementation of the CERD. The General Comments passed by the HRC and the CERD Committee are widely accepted as interpretative sources of human rights substantive law, and within my trilevel framework, their comments represent the most (gender) developed spectrum of the second tier of human rights instruments.

      However, the foremost comments made by the HRC and the CERD Committee neglected to put gender into the interpretation of their respective conventions. Like the first tier instruments before them, the treaty bodies were criticized for failing to recognize that gender adds a significant dimension when defining the substantive content of individual rights or that it should affect the choice of methods that must be adopted by states to ensure that all individuals within their jurisdiction enjoy those rights equally (Byrnes 1988: 216).⁹ Andrew Byrnes aims this criticism specifically at HRC General Comment 16 (1988) on the right to privacy, which ignores the importance that this right has assumed in the struggle of women for control over their reproductive lives, for example, with respect to abortion or the spacing of children (HRC General Comment 16, art. 17).¹⁰ Instead, traditional (androcentric) concepts, such as the inviolability of the home from state interference and restrictions on the use of sensitive personal information by governments and others, were the major preoccupation of the HRC (Byrnes 1988: 217). The narrative arising from the HRC General Comment on the issue of privacy privileges the concerns of men.

      However, with the passage of time committee members have come to place gender at the core of their comments. Through these General Comments, first and second tier human rights instruments have been elaborated upon in order that women’s multiple identities are identified and considered. General Comments have become an important means of normative development in a regime that is frustratingly limited in this respect (Otto 2002: 10). The HRC, earlier criticized for failing to take gender into account, produced the far reaching General Comment 28 (2000) addressing article 3 of the ICCPR on equality between men and women. Gender is squarely addressed as grounds for discrimination, and its impact on vulnerability to discrimination as well as the shape of discrimination is discussed within this comment. States are instructed by General Comment 28 that combating inequality in both public and private spaces is the responsibility of the state and cannot be limited to formal equality but requires multiple responses, including the removal of obstacles to the equal enjoyment of such rights, the education of the population and of state officials in human rights, the adjustment of domestic legislation, and affirmative action for the advancement of women (art. 3 and 4).

      General Comment 28 goes on to prohibit states from justifying unequal treatment and opportunity for women on the grounds of tradition, history, and culture or religious attitude. Dowry killings, clandestine abortions, prenatal sex selection, and the abortion of female fetuses are condemned as a manifestation of discriminatory attitudes that subordinate women (art. 5 and 10). General Comment 28 describes how poverty and deprivation, armed conflict, and states of emergency can compromise women’s rights and increase their vulnerability to discrimination, often in the shape of violence, such as sexual violence and abduction (art. 10).

      As I stated earlier, CERD had ignored gender related aspects of racial discrimination. The CERD Committee replicated this omission in all nineteen of its General Comments passed before 1996. At one stage, the CERD Committee chairperson made the astounding declaration that he rejected directives to integrate gender issues into the CERD’s work as “fundamentally misconceived” and considered that it was the CEDAW Committee’s job to deal with women (Gallagher 1997: 304, quoted in Otto 2002: 27).¹¹ This statement was even more astounding considering that in 1995 the chairpersons of the treaty committees had endorsed a shared commitment to “fully integrate gender perspectives into their working methods, including identification of issues and preparation of questions for country reviews, general comments, general recommendations, and concluding observations.”¹²

      It is notable, therefore, that in the past decade the CERD Committee has surpassed the HRC in its efforts to incorporate gender into its treaty. Indeed, the CERD Committee has introduced a gender analysis of human rights into various comments and not only a thematic comment on gender. In General Comment 25 (2000), the CERD Committee notes that there are circumstances in which racial discrimination only or primarily affects women, or affects women in a different way or to a different degree than it affects men. Such racial discrimination will often escape detection if there is no explicit recognition or acknowledgment of the different life experiences of women and men, in areas of both public and private life (art. 1). Further, certain forms of racial discrimination may be directed toward women specifically because of their gender, such as the coerced sterilization of indigenous women and the abuse of women workers in the informal sector or domestic workers employed abroad by their employers (art. 2).

      The CERD Committee’s General Comment 25 (2000) elaborates that racial discrimination may have consequences that affect primarily or only women, such as pregnancy resulting from racial bias–motivated rape; in some societies, the women victims of such rape may also be ostracized (art. 2). Women may also be further hindered by a lack of access to remedies and complaint mechanisms for racial discrimination because of gender related impediments, such as gender bias in the legal system and discrimination against women in private spheres of life (art. 2). General Comment 25 clearly states that gender discrimination is highly likely to intersect with racial discrimination and urges states to investigate this intersection in a consistent, systematic manner (art. 3). This is a landmark interpretation, and analysis of racial and gender discrimination as indigenous women, minority women, displaced women, imprisoned women, women before a prejudiced justice process, women political prisoners, women in armed conflict, and other unspecified groups are envisaged by the committee as falling within the mandate of CERD.

      The CERD Committee succeeds with this General Comment in enhancing its efforts to integrate gender perspectives, incorporate gender analysis, and encourage the use of gender inclusive language in its sessional working methods, including its review of reports submitted by states’ parties, concluding observations, early warning mechanisms and urgent action procedures, and general comments (also known as general СКАЧАТЬ