WOMEN'S RIGHTS AS HUMAN RIGHTS

I

  Men and women equally partake in humanity by birth, notwithstanding the biological difference between them in terms of anatomy. Hence it is axiomatic that women's rights are human rights, rights that are naturally enjoyed by every human being by virtue of being human. The supposed vulnerability of women arising in the anatomical difference and procreative function cannot be construed to deduce the proposition that anatomy is destiny. Differences and disparities between men and women are, in fact, based on differential upbringing and conditioning among the genders, and are therefore socially constructed.

          Nevertheless, with the possible exception of matrilineal societies, patriarchy has been an oppressive fact of history in practically all civilizations the world over. Moreover, among the variety of disparities such as the ones based on race, ethnicity, class, etc., gender disparities have been the most persistent and pernicious. With the rise of liberalism and democracy in modern times, other disparities came to be questioned earlier than those based on gender. This was for the reason that the distinction between the private and the public spheres in liberalism as also religion-based family laws of marriage and property generally kept the state out of bounds in these matters. This is an irony and a paradox in view of glaringly iniquitous conditions of women both nationally and internationally. In the world today women notionally form half of the population, but perform nearly two-thirds of its work hours, receive one-tenth of world`s income, and own less than one-hundreths of world`s property. They are also fewer than 5 percent of the heads of governments and lower than 10 percent of parliamentarians (popularly elected House). Their greater vulnerability to social, cultural, and economic discrimination, and to domestic and social violence and crime in normal as well as riotous and war situations are patent facts of life all over the world with variations only of degrees across countries and cultures and climes (Gale Binion 1995: 511).

          Even in regard to political suffrage, women happened to be the last section of the population to be enfranchised. The problem of their social and economic empowerment has, in fact, proved to be much more complex and intractable. Even in terms of their political empowerment, they have still a long way to go. But what is notable is that the present is the most propitious time for the idea of gender equality. And no one can hold back an idea for too long whose time has come.

II

          For reasons outlined above, when human rights are stated all is not stated; it needs to be supplemented by women's rights as a special variant of human rights. Ideally, a time may come when the difference between human rights and women's rights may dissolve or become obsolescent. In that eventuality, feminism and humanism may become merged into one indistinguishable ideology or theory. That it has not happened in the past cannot be taken as an improbability in the future. For a basic lesson that philosophy of science teaches us is that the past cannot foreclose the future. There is a certain degree of fixity in the past, but the future is wide open. Indeed, entirely unanticipated developments in the future give us new ways of looking back at and reinterpreting the past.

          Feminist theory made its appearance earlier at the level of individual social or political thinkers than at the level of collective political action by the peoples or nations. There have been at least three waves of feminism in the thought of individual political thinkers, in terms of my somewhat parsimonious version of a review of feminist writings by Rosemarie Tong (2003). Prominent voices in the first stage of feminist thought argued that the women must emulate the same traits and qualities as men in order to be their equal. Mary Wollstonecraft in the eighteenth century and John Stuart Mill in the nineteenth century illustrate this line of thinking. Wollstonecraft in her monograph A Vindication of the Rights of Women (1792) observed that the society expected men to be educated in "morals" whereas women were taught 'manners'. Men were supposed to be rational and abstract in their thinking, and strong, whereas women were thought to be sentimental, contingent, self-indulgent, and weak. The remedial equality with men could be attained, according to Wollstonecraft, if women cultivated the same virtues as men.  John Stuart Mill, too, in his On the Subjection of Women (1869) lamented their subjugation and advocated that the society must provide the same rights and privileges as are enjoyed by men. This feminist perspective may be called the "sameness" theorem of the feminist theory.

          The second stage of the feminist thought may be called the “difference” theorem of feminism as it stressed on the differences rather than the importance of being the same as men. This phase also came to be marked by some degree of cleavage between liberal feminists like Betty Friedan (1974) and radical feminists like Sulasmith Firestone (1970) and Mary Vetterling-Braggin (1982). In fact, liberal feminists largely continued the point of view of the British feminist thought of the eighteenth and nineteenth centuries mentioned above. As the first President of the National Organization for Women (NOW) in the USA, Friedan took the leading role in formulating a Bill of Rights for Women in 1967. Radical feminists asserted their sexuality androgynously and sought sexual pleasures of all types – heterosexual, lesbian, and autoerotic, celebrating the new developments in reproductive, contraceptive, and genetic technology as a factor reducing the vulnerability of women due to the biological difference with men (Firestone 1970).

          Some other radical feminists, on the other hand, refuted androgyny and masculinity and advocated the ideal of essential femaleness, predicated on "gentleness, modesty, humility, supportiveness, empathy, compassionateness, nurturance, intuitiveness, sensitivity, unselfishness" (Vetterling-Braggin 1982 : 6).

          Some yet other radical feminists emphasized the dangers of heterosexual sex as the prime cause of male domination, macho sadism and female masochism. Lesbianism to them appeared as a way to escape these dangers. Yet other feminists wished to discard artificial reproductive or unproductive techniques and rely on their natural capacity to procreate or refuse to procreate in order to enhance their utility and respect in male estimation (Corea 1985).

          The third stage of the feminist thought is marked by what may be called the "diversity" theorem of feminism. According to this view, the women condition is not simply defined in terms of the female gender. It is significantly determined by the variables of race, religion, ethnicity, class, and age. Thus the question of gender equality is confounded in a complex web of causation, almost a vicious circle. This diversity view of feminist thought finds its most acute expression in postmodern feminism that rejects any uniform foundational value of gender equality and allows a radical relativism of values contingent on variety of identities and subcultures. Thus gender emerges neither as a resultant of biology nor as an overarching social construction but as a conceptual grid through which radically different values can be interpreted or deconstructed and reconstructed (Lauretis 1994).

III

          At the level of collective political action by the peoples and nations, the earliest declaration of rights are human rights in general without any special or separate concern with the rights of women. The American Declaration of Independence made by the second Continental Congress attended by the delegates from the 13 rebellious English colonies on July 4, 1776, for example, simply stated : "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their creator with certain inalienable rights, that among these are Life, Liberty and the pursuit of Happiness." The Declaration of the Rights of Man and Citizen made by the National Assembly of France in the wake of the French Revolution on August 26, 1789, "resolved to set forth a solemn declaration of the natural, inalienable and sacred rights of man..." The Declaration of the Rights of the People of Russia and of the Working and Exploited Peoples of the world made by the All Russian Congress of Soviets made in January 1918 set "as its fundamental task the destruction of any exploitation of man by man, the complete abolition of the division of society into classes, the merciless suppression of the exploiters, the establishment of a socialist organization of society and the victory of socialism in all countries...."

          Among these early declarations of rights, the Karachi Resolution of the Indian National Congress (29-31 March, 1931) was perhaps the first that proclaimed "equal rights and obligations of all citizens, without any bar on account of sex." This resolution presaged all the fundamental rights and directive principles of state policy that came to be guaranteed by the constitution of independent India in 1950. However, the makers of the Indian constitution stopped short of guaranteeing some special rights of women comparable to those  provisionally guaranteed to the "socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes" (article 15, clause 5; the latter added by the first constitutional amendment 1951). Representational reservation for women to the tune of 33 percent of the local government councils in rural and urban areas had to wait until the seventy-third and seventy-fourth constitutional amendments in 1992/93 and the conforming laws enacted by the state legislatures subsequently. A proposed representational reservation for women in State Legislatures and Parliament has been debated for a decade but not yet enacted due to lack of consensus in the political class and political parties.

IV

          Now, we come to some select international declarations of human rights and scan them from, the feminist perspective. The Universal Declaration of Human Rights (UDHR) adopted by the General Assembly of the United Nations on December 10, 1948, provide a common standard of human rights worthy of "achievement for all peoples and all nations" "without distinction of any kind, such as race, colour, sex, language, religion political or other opinion, national or social origin, property, birth or other status" (article 2). Here again we find a general prohibition against gender-related discrimination but no special rights or reverse discrimination in favour of women in view of their acute or abnormal backwardness.

          The UDHR (1948) was subsequently supplemented by two additional declarations by the UN General Assembly : (a) the International Covenant on Civil and Political Rights (1966), and (b) the International Covenant on Economic, Social and Cultural Rights (1966). Both came into force in 1976 following ratification by the member-states. Both the covenants guarantee the human rights to every person, child or adult, regardless of any socio-economic-political differences, including those based on gender. The one and the only one age or gender-specific human rights promised under the civil and political rights covenant is that a death sentence shall not be imposed for crimes committed by a person below eighteen years of age and a pregnant woman (article 5).

          Feminists argue that given the grossly unequal status of women in the prevailing laws in most countries, a gender-blind law in reality works in favour of patriarchy. The ends of justice would not be served by  anything less than an affirmative action or reverse discrimination.

          From among the myriad of other international covenants and conventions, I intend to briefly refer the three such documents : (a) Convention on the Elimination of All Forms of  Discrimination Against Women adopted by the UN General Assembly in 1979 that came into force in 1981, (b) Declaration on the Right of Development adopted by the UN General Assembly in 1986, and (c) Convention on the Rights of the Child adopted by the UN General Assembly in 1989 and enforced in 1990. The convention on women's rights seeks to ensure complete equality with men before the law in all respects. It specifically also declares that the adoption by states of "temporary special measures aimed at accelerating de facto equality between men and women shall not be considered discrimination as defined in the present convention" (article 4, clause 1). This international sanction for affirmative action in favour of women is not evidently matched in the national laws, however.

          The Declaration on the Right to Development declares development as "an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized" (article 1, clause 1). The convention on the child rights in a very comprehensive charter ensuring protection against exploitation and conditions for proper development under parental care and material assistance and support by the state.

          An analytical retrospective view on the evolution of human rights is suggestive of different stages through which they have developed. My teacher, political theorist Professor Christian Bay at the University of Alberta in Canada used to talk about the growth of three packages of rights, namely, the Blue Rights or the rights against the state engendered by the bourgeois revolutions in the UK, USA, and France; the Red Rights or the rights against hunger produced by the socialist revolutions in the Soviet Union, Eastern Europe, and the People`s Republic of China; and the Green Rights or the rights to clean environment and healthy life created by the movements for ecological protection and sustainable development. Similarly, others have talked about three generations of rights. The first generation rights are primarily concerned with civil and political rights born out of the liberal and democratic movements since the nineteenth century. These are the 'negative' rights against the arbitrary action by the state. The second generation rights are primarily related to social, economic, and cultural equality and social security typical of welfare and socialist states. The third generation rights include the more recent concern with environmental and developmental rights including special rights of women and children (Arjun Dev et. al. 1996: xi-xv).

          The Vienna Declaration of Human Rights, proclaimed at a world conference to review the progress of UDHR (1948) and subsequently endorsed by the UN General Assembly, aptly remarks: "All human rights are universal, indivisible and interdependent and interrelated" (article 5). The Millennium Development Goals of the United Nations believe that we can end poverty by 2015. They reiterate : "We are committed to making the right to development a reality for everyone and to freeing the entire human race from want" (para 11). These goals need to be made part of the constitutions of the member-states for their entrenched and determined pursuit. For minorities and women, "rights, equality, and development may not be achieved simply by putting them in the constitution and even in government policies. For them, the issue is not recognition of cultural distinctiveness. In fact, it may be recognition of different needs or meeting similar needs in appropriate ways." (Ghai &  Cottrell 2011: 147-148).

          In addition to the foregoing universal or global human rights systems, there are three regional human rights systems in Europe, Americas, and Africa. The three are not any more sensitive to the specifically feminist dimension of human rights than the foregoing universal declarations. The European human rights system comprises two major treaties: the European Convention of Human Rights and Fundamental Freedoms (1950) and the European Social Charter (1961). As monitoring and enforcement mechanisms the European Commission of Human Rights and the European Court of Human Rights were instituted. Now the former has become obsolete and replaced by the court itself, which accepts applications complaining violations from individuals as well as states. The Inter-American human rights system emerged with the adoption of the Americas` Declaration of Rights and Duties of Man in April 1948, being the first regional human rights instrument of a general nature, predating the UDHR (1948) by more than six months. Alongside were also set up the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights. The third and most recent of the regional systems of human rights is the African Charter of Human and Peoples` Rights (1981). It was first adopted under the aegis of the Organization of African Unity, which aws subsequently replaced by the African Union. It is monitored and interpreted by the African Commission on Human and Peoples` Rights set up in 1987. An African Court on Human and Peoples` Rights is also mooted under a protocol to the Charter adopted in 1998 under which the foregoing Commission is proposed to be incorporated into the Court. The operationalisation is still in process at this writing.

                                          V

In view of all-pervasive patriarchy and the diversity theorem of postmodern feminism discussed above, the full realization of women's human rights would not be a cakewalk. It will require a concerted strategy of action by the state, civil society, market, and national and international organizations to actualize the goals of gender equality and justice advocated in the feminist thought and national and international declarations of human rights surveyed above. To my mind, constitutional entrenchment of these rights, conforming laws and public policies, including affirmative action by way of special rights such as reservations on the part of nation-states , hold the key to the achievement of women's rights as human rights in India and the world at large.

The human rights texts that we have rapidly reviewed above are distinguishable into at least the following categories: political thought/theory, national declarations, national constitutional or legal bill of rights, regional human rights instruments, and UN-UDHR and other universal international declarations and conventions. If we assess these texts in terms degrees of freedom as to their formulation, if not implementation, the free will and imagination enjoyed by a political thinker is unparalleled, followed by an empirical political theorist working under the double binds of rational imagination and normative justification, on the one hand, and the constraints of factual evidence, on the other. If formulation and implementation are jointly considered, a national human rights charter emerges as the most efficacious proposition for the simple reason that a sovereign nation-state produces it is not dependent on any other power to beg for its implementation. The case of regional and universal declarations is different. Their formulation, declaration, ratification, and implementation are all in stages dependent on the sovereign will of the high contracting parties, mostly or all members of the United Nations.

 Nevertheless, as we have argued above, women`s rights even within the domain of domestic jurisdiction of nation-states still leave much to be desired, and they need instruments of special rights in the form of protective reservation or affirmative action. In the international domain, both globally and regionally, a lot still depends on the sovereign will of the state, though women`s rights may be undertaken as a political mission animated  by new ideas in national government, international relations, and organisations such as “governance” and “cosmopolitan democracy”. Governance goes beyond the structure of government and brings in administration in collaboration with the institutions of civil society like nongovernmental organizations (NGOs) and the market (World Bank 1991; Rosenau 1999). Cosmopolitan democracy refers to new developments allowing civil and economic relations among communities across international boundaries in international law without negating state sovereignty, rather jointly facilitated by the neighbouring states in the supranational region ( David Held 1994; Daniele Archibugi 2008).    

               REFERENCES & A SELECT BIBLIOGRAPHY

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Archibugi, Daniele, The Global Commonwealth of Citizens: Towards Cosmopolitan Democracy (Princeton: Princeton University Press, 2008).

Bakshi, P.M., The Constitution of India (Delhi : Universial Law Publishing Co., 2011, eleventh edn.)

Baxi, Upendra, The Future of Human Rights (New Delhi : Oxford University Press, 2008, 3rd edn. with a new Preface).

Binion, Gale, “Human Rights: A Feminist Perspective”, Human Rights Quarterly, vol. 17, no. 3, August 1995.

Corea, Gena. The Mother Machine : Reproductive Technologies from Artificial Insemination to Artificial Wombs (New York : Harper & Row, 1985).

Dev, Arjun and Indira and Supta Das, Human Rights : A Source Book, (New Delhi : Indian Council of Educational Research and Training, 1996).

Firestone, Sulasmith, The Dialectic of Sex (New York : Bantam Books, 1970).

Friedan, Betty, The Feminine Mystique (New York : Dell, 1974).

Ghai, Yash and  Jill Cottrell, The Millennium Declaration, Rights, and Constitutions (New Delhi : Oxford University Press for UNDP, 2011).

Held, David, “Democracy: From City-States to a Cosmopolitan Order?” in The Polity Reader in Social Theory (Cambridge:Polity Press, 1994), chapter 29.

Lauretis, Terrecy de, "The Essence of the Triangle, or Taking the Risks of Essentialism Seriously", in N. Schor and E. Weed, eds., The Essential Difference (Bloomington : Indiana University Press, 1994).

Mill, John Stuart, On the Subjection of Women (New York : Fredrick A. Stokes Company, 1911, first published 1869).

Rosenau, James N. “Towards an Ontology for Global Governance” in Martin Hewson and Thomas Sinclair, eds. Approaches to Global Governance Theory (Albany: State University of New York Press, 1999.

Singh, Ujjwal Kumar, ed. Human Rights and Peace : Ideas, Laws, Institutions and Movements (New Delhi : Sage Publications, 2009).

Tong, Rosemarie, “Gender and Sexual Discrimination”,   chapter 9, in Hugh LaFollette, ed. The Oxford Handbook of Practical Ethics (New York: Oxford University Press, 2003), pp. 219-244.

Vetterling-Braggin, Mary, "Feminity", "Masculinity" and "Androgyny" : A Modern Philosophical Discussion (Totowa : Rowan & Littlefield, 1982).

Wollstonecraft, Mary, A Vindication of the Rights of Women (London : Penguin, 1988, first published 1792).