A CRTTICAL APPRAISAL OF THE EFFICACY OF INTERNATIONAL LAW AS A TOOL TO ACHIEVING GENDER EQUALITY

A CRTTICAL APPRAISAL OF THE EFFICACY OF INTERNATIONAL LAW AS A TOOL TO ACHIEVING GENDER EQUALITY

ABSTRACT

Law is often perceived as an instrument for social change. Though there are constitutional and legal provisions for gender equality in Nigeria, such provisions do not fully contemplate issues of particular concern to women such as reproductive rights since male indicators are constantly used to measure achievements in human rights protection. This research examines the efficacy of law as a tool to achieving gender equality. The research  employs the doctrinal and non-doctrinal research methods.

The research explains that Problems such as male dominance in political/legal structures and lack of the political will to tackle some of the problems will create practical obstacles to the  realization of gender equality and the realization of the full potential of the law. In this respect, legal protection for women will be difficult where practical measures are not implemented  domestically. Similarly, honoring international commitments subsequently becomes problematic as they do not guarantee change nationally and they, too, are sidelined. In consequence, gender equality will not be given priority domestically and aimed at protecting women and women’s rights will become ineffective, scant and/or not enforced. The research concludes that the only way to achieve gender equality is through a multi-level approach domestically and internationally in order to guarantee the needed change with regards to gender equality.

 

CHAPTER ONE

1.0.        INTRODUCTION:

Gender equality and protection of the law with respect to women are enjoyed by very few women and relying on the State to promote and make such provisions is not enough. The realization of gender equality and protection of the law can only be obtained through combined efforts at the international level, by states which must create meaningful international obligations; the national level, by the same states to give effect to such international obligations; and the ground level, through individuals and non-governmental organizations that provide the impetus for governments to forge and implement international and national commitments. For the purpose of this research, equality of opportunity (de jure or formal or abstract equality) and equality of outcome (de facto or substantive equality) are central to an understanding of gender equality.¹

1.1.         STATEMENT OF THE PROBLEMS:

Gender issues have made their appearance from as early as the seventh century when women sought to reinterpret the scriptures which deemed women intellectually inferior by nature and given to sin.² Women fought for universal suffrage in the early 1 900s and have constantly battled for equality and are still struggling even three centuries after that. The basis of the struggle for gender equality is firmly rooted in the notion that gender equality is a fundamental human right and also that women’s rights are human rights. What exactly does equality on the basis of gender constitute?³ Even where ‘formal’ gender equality is guaranteed in national constitutions or legal systems which provide for procedural equality, there is a gap between this and substantive equality which takes  into   account   the   actual   lived   experiences,    needs   and   interests of  Hilary Charlesworth and Christine Chinkin, The Boundaries of International Law: A Feminist Analysis (Manchester: ManchesterUniversity Press, 2000), p. 217. UNICEF has produced a report that reveals startling global gender inequalities throughout a girl’s/woman’s life cycle. See UNICEF, The State of the World’s Children. Women and Children: The Double Dividend of Gender Equality (New York, UNICEF 2006, pp 4-5.

²Gerda Lemer, The Creation of FenzEnst Consciousness: From the Middle Ages to Eighteen-Seventy (New York: Oxford University Press, 1993), p.13.

³The Department of Economic and Social Affairs of the United Nations defines gender equality as “equal opportunities, rights and responsibilities for women and men… It implies that the interests, needs and priorities of both women and men are taken into consideration”. United National, Department of Economic and Social Affairs, The World’s Women 2005: Progress in Statistics (New York: United Nations, 2006), p. 1.

women.⁴ An individual’s right to equality should not include only notions of abstract equality but also substantive equality where he or she will necessarily have to be treated differently in order to protect his or her right to equality.⁵

At the national level, women are confronted with the seemingly unending struggle to attain gender equality because of male elitism and its stronghold in the power/governance structure.⁶ National policies of even the developed world are generally formulated by men, yet they are referred to as national policies despite the fact that women are under-represented in the policy making process. This is now extended to the international level, particularly in policymaking, where women are directly affected. At the international level, the problem persists as attempting to gain consensus on gender issues is even more difficult due to the varied cultural and religious backgrounds of the nations that comprise the international community.

The   role   of   women   in  society  is  often  defined  within  the  context  of cultural and religious  parameters. Cultural  and   religious   practices   generally   have   negative    impacts  on   women   and  girls    but   are    integral   to    the    social    glue   necessary   for     defining See Karin Van Marie, “The Capabilities Approach; ‘The Imaginary Domain’ and Asymmetrical Reciprocity’: Feminist Perspectives on Equality ad Justice”, Feminist Legal; Studies, 11 ‘:2003), pp. 266-27.

Equal rights will not always be appropriate, as in the case of pregnancy where a gender specific right would be more suitable. 5  Chariesworth and Christine Chinkin, The boundaries of international law, pp. 10 and 32. “Development Index (GDI) and at 22 out of 75 countries with a value of 0.66 for i:he Gender Empowerment Measure (GEM). See United Nations Development Programme. Human Development Report 2006. Beyond scarcity: Power, poverty and the global water crisis (New York: UNDP, 2006), tables 24-25, pp. 364 and 368. The IGD is not a measure of gender inequality. Rather, it is a measure of human development that adjust the human development index (ND!) to penalize for disparities between women and men in the three dimensions of the HDI: a long and healthy life, knowledge and a decent standard of living. The greater the gender disparity in basic human development, the lower is a country’s GD! relative to its HDI. Trinidad and Tobago’s GD! value, 0.805 should be compared to its HDI value of 0.809. !ts GD! value is 99.5% of its I-WI value. Out of the 136 countries with both HD! and GDI values, 60 countries have a better ratio than Trinidad and Tobago’s. the GEM was intended to measure women’s and men’s abilities to participate actively in economic and political life and their command over economic resources. !n contrast to the GD!, which is concerned with well-being, the GEM focuses on agency. It measures three dimensions in this area: political participation and decision-making power, economic participation and decisions-making power, and command over economic resources. These indicators are, of course, not without their limitations as they are, inter alia, generally skewed due to income figures, not always based on gender disaggregated data, or do not capture important dimensions of gender discrimination in human development, such as violence against women. See pp. 279-280. See also UNDP [online] , “Human Development Report 2006: Human Development Indicators. Country Fact Sheets: Trinidad and Tobago”, [cited 06 October 2007J.

society, particularly for the shaping of male culture identity.^[1] This is not to say that specific conversations for the general protection of women and children or for the elimination of discrimination against women do not exist because they do, and these are apart from the general human rights conversations which already include these seemingly minority categories. Evidence would suggest that these conversations are not taken seriously by the state as they are not incorporated into domestic law and enforced, as seen for example, with the perpetuation of discriminatory practices against women. As an integral subject of general equality, women are supposedly afforded equal protection of the law at the national level. They are the primary victims of domestic violence and rape; however even when such issues are legislated, they are adequately dealt with because the realm of family life is considered sacrosanct and outside the scope of state intervention and state bodies generally refuse to intervene. Trying to raise this as a human rights issue at the international level has faced many obstacles. In the same manner that the state will not intervene in so called “private” matters of the family, international law equally lacks the capacity to find individuals culpable of violations in private matters. The United Nations Charter guarantees nonintervention into the domestic affairs of a state, except in cases of gross domestic violations of human rights or genocide.^[2]

Additionally, public international law only recognises the state as a subject and individuals

wishing to have an audience at the level of international law must do so through the agency of their state. In the case of human rights conversations, however, individual agency may be allowed. Under the Convention on the Elimination of All Forms of Discrimination Against Women, one of six core human rights conventions,^[3] an optional protocol was adopted by the General Assembly in 1999 to afford individuals as well as groups and non-governmental organisations the right to report violations by the state of the main convention directly to the Committee on the Elimination of Discrimination Against Women. This right is, of course, circumscribed by the state’s willingness to accede to the protocol. In the absence of accession, it poses particularly problems for women as abuses meted out in the   home   are   strictly   theoretically  outside   of  the   sphere   of    international   law  due to the public/private divide and the notion of the sanctity of the family. This is further aggravated yet by the fact that the political, legal, social, cultural and domestic structures are dominated by men.

 

1.2. AIM AND OBSECT1VES

Essentially, the aim of this research is to assess the strengths and weaknesses of international law instruments with respect to concrete issues of gender inequality and specific areas of concern to women. The objectives of this research work are to:

1. Carry out a critically assessment of international law as an instrument to assist women in their fight for equality and protection of the law against marginalization;
2. Assess the availability of international law instruments for the promotion of gender equality;
3. Examine the effectiveness of international law as an instrument to effect change in the context of women’s rights; and
4. Carry out an assessment of the effectiveness of international institutions in the context of gender equality and the protection of the rights of women.
5. Assess whether the examination of rights as part of the development of international law also contemplates the specific issue of women’s rights and, in particular, the right to gender equality.

 

• METHODOLOGY OF RESEARCH:

The researcher adopts both the doctrinal and non-doctrinal research methods. Doctrinal research deals with retrieval of all necessary source materials from primary and secondary sources, dealing with the subject matter .in this wise, published texts (foreign and indigenous), journals, laws reports (foreign and indigenous), treaties and laws that are of direct relevance to gender equality are relied upon.

The non-doctrinal method of research involves personal contacts and interviews with lecturers, international law experts and resource persons who have in one way or the other contributed to this area of the law.

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