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11: Gender – Addressing the Public/Private Divide

What types of efforts have acknowledged and remedied the public/private divide?
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At the edge of the public/private divide? A Ugandan woman at the door of her home. Photograph by Jennifer Wilmore/Bread for the World.

I - INTRODUCTION 

The Western legal tradition sees the world as composed of two spheres: the public, where law may regulate actors, and the private, where the law does not apply[1]. Because women have long been associated with the private sphere, this division has historically excluded women from the protection of law.

Human rights law initially maintained the public/private divide, much to the detriment of women. The first women’s rights treaty began to break down the barrier between public and private, clarifying that states must ensure women’s rights in all areas of life. Advocacy on violence against women most strongly challenged that classical legal divide, and there is now an international consensus that states are obligated to exercise measures of ‘due diligence’ in preventing and responding to violence against women, even when the perpetrator is a non-state actor.

II – THE PUBLIC/PRIVATE DIVIDE IN INTERNATIONAL LAW

The public/private division originates from classical liberal political philosophy[2], in which the world the public, political sphere is the realm of the government, while the private, apolitical sphere is that of family, home, and sexuality[3]. The king or state can use laws to regulate the public sphere, but the private sphere is theoretically immune from legal regulation[4]. According to the liberal tradition, the two spheres also correspond with the two sexes: the public is the realm of men, the traditional breadwinner assumed to be the rational and political sex, and the private is the realm of women, the irrational and natural sex.[5]

The gendered nature of the public/private divide in the Western legal tradition has had profound consequences for the rights of women. Feminists argue that the dichotomy has both excluded women from the public arena and reinforced their status as a second-class group. First, as Hilary Charlesworth contends, sexist laws have directly discriminated by “exclud[ing] women from the public sphere – from professions, from the marketplace, from the vote” [6]. Second, the law has failed to regulate much of what takes place in the private sphere. A failure to regulate “does not signify…neutrality”, argues Charlesworth, explaining that a state’s failure to criminalise marital rape, for example, “supports and legitimates the power of husbands over wives”[7].

This fundamental divide between the political, public sphere associated with men and the private, domestic world associated with women exists in international law[8] and was long evident in international human rights law.

In one sense, human rights challenged the public/private divide by making the conduct of states toward its citizens a matter of public international law rather than a domestic issue[9]. But in another sense, human rights law left the public/private dichotomy untouched and initially focused on civil and political rights, rights that affect only the public sphere[10]. Additionally, it only held state actors accountable for human rights violations, meaning that rights abuses committed by non-state actors were ignored[11]. The persistence of the public/private divide in human rights law meant that women were often excluded from the protections of human rights. For instance, the classic definition of torture – as an act committed purposefully by a state agent – omits domestic abuse, the form of violence women most often experience[12]. “The closer a fight comes to home,” Catharine MacKinnon explained in 1994, “the less likely it is that international human rights will be found violated, no matter what was done”[13]. When human rights law only applies in the public realm, the law tacitly accepts gender inequality[14].

III – CEDAW: ERODING THE PUBLIC/PRIVATE BARRIER

With the creation of the first international women’s rights treaty, the public/private divide in human rights law began to break down. The Convention on the Elimination of Discrimination against Women (CEDAW) began to bridge the gap between the public and private, holding states parties (those countries that have ratified the treaty) accountable for rights violations committed in the private sphere, by private actors.

The treaty, adopted in 1979, prohibits all forms of discrimination in all areas of life, including within the home. Article 16, for example, specifies that states parties should eliminate discrimination within marriage and the family[15]. States are thus “bound to exercise due diligence to eliminate, reduce, and mitigate the incidences of private discrimination”[16].

The treaty does not permit discrimination against women under the guise of culture or tradition: Article 2(f) requires that states parties “take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women”, and article 5(a) requires that states parties “modify the social and cultural patterns of conduct of men and women”[17]. Rebecca Cook explains that “[t]aken together, [these provisions] require states parties to reform personal status laws and to confront discriminatory customary and religious practices”[18]. Additionally, Article 2 specifies that discrimination is forbidden “by any person, organisation or enterprise”[19], leaving room for states parties to be accountable for human rights violations by private actors. The treaty, then, represented the beginning of an important shift in international law toward human rights guarantees in all areas of life for women.

IV – VIOLENCE AGAINST WOMAN COMMITTED BY NON-STATE ACTORS

It was advocacy on violence against women, however, which most powerfully challenged the public/private legal barrier. The vast majority of violence against women occurs in private by non-state actors – in the home, and at the hands of partners and family members. In the 1990s, international pressure mounted on states to take responsibility for acts of violence against women committed by non-state actors, especially domestic violence[20]. This meant that the international community had to recognise that human rights law applied in all areas of life, not just in the public arena.

i) General Recommendation 19

In 1992, the committee that monitors the implementation of CEDAW (the CEDAW Committee) broke new ground by clarifying that, under CEDAW, states parties can be held responsible for acts of violence committed by private actors[21]. In General Recommendation 19, the CEDAW Committee focuses on violence against women – a topic not included in the original CEDAW treaty – and explains that such violence is prohibited under CEDAW. The Committee observes:

“Under general international law and specific human rights covenants, States may…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”[22].

It recommends that states “take appropriate and effective measures to overcome all forms of gender-based violence, whether by public or private act”[23]. The United Nations General Assembly echoed the CEDAW Committee’s recommendation when it adopted the Declaration on the Elimination of Violence Against Women (DEVAW) in 1993. DEVAW is not a treaty, but it is significant because it holds states responsible for eliminating violence against women in “public or private life”[24].

ii) General Recommendation 21

The CEDAW Committee chipped away again at the public/private divide in General Recommendation 21. Here the Committee discusses equality in family life, stating: “Historically, human activity in public and private life has been viewed differently and regulated accordingly…[But] the treatment of women in the family both at law and in private must accord with the principles of equality and justice for all people”[25]. General Recommendation 23, on political and public life, makes similar observations[26].

iii) General Recommendation 28

The Committee’s most recent General Recommendation, No. 28, strongly affirms that states parties can be held accountable for human rights violations committed by private actors[27]. States parties to CEDAW have a three-pronged duty to comply with the treaty “[t]o respect, to protect and to fulfil women’s right to non-discrimination and to the enjoyment of equality”[28].

States parties’ obligation to protect, the Committee explains, requires that states “protect women from discrimination by private actors”[29]. This means that states must not only themselves refrain from discriminating against women, but also that they “are further obliged to react actively against discrimination against women, regardless of whether such acts or omissions are perpetrated by the state or by private actors”[30]. This is known as a positive obligation.

If a state party fails to prevent or respond to private actors’ discrimination against women, responsibility can in some cases be attributed to the state[31]. As such, states parties must, for example, proactively prevent discrimination in the private sphere by regulating “education, employment and health policies and practices, working conditions and work standards, and other areas in which private actors provide services or facilities, such as banking and housing”[32].

V – THE DUE DILIGENCE STANDARD

International human rights tribunals have affirmed the principle that states can be held responsible for acts of violence against women committed by private actors. A consensus among human rights tribunals has emerged that, under international law, states must exercise the ‘due diligence’ standard in response to violence against women. To fulfil the obligation to exercise due diligence, states must endeavour to prevent violence from taking place; they must investigate acts of violence that have taken place, prosecuting and punishing offenders; and they must compensate victims of violence.[33]

i) CEDAW Committee

In AT v. Hungary[34], the CEDAW Committee, exercising its quasi-judicial function under CEDAW’s Optional Protocol, found that international law obligates states to provide adequate legal safeguards against violence, such as restraining orders, legal assistance, and civil remedies. In Goecke (deceased) v. Austria[35] and Fatma Yildirim (deceased) v. Austria[36], the Committee found that police must diligently investigate allegations of violence against women.

ii) Inter-American Court

Likewise, the Inter-American Commission and Court apply the due diligence standard in cases of violence against women[37]. The Commission has emphasised that meeting the due diligence standard entails providing adequate and effective judicial remedies for victims of violence[38]. In Gonzáles et al (‘Cotton Field’) vs. Mexico, for example, the Commission held that Mexico failed to meet the due diligence standard because it had not investigated the disappearances and murders of hundreds of women[39]. Recently the Court in Jessica Lenahan (Gonzales) et al. vs. United States held the United States responsible for the murder of Jessica Lenahan’s daughters by her ex-husband because the local police failed to effectively enforce Lenahan’s restraining order against him[40].

iii) European Court of Human Rights

The European Court of Human Rights too has consistently held that states parties to the European Convention on Human Rights must exercise due diligence in preventing and responding to violence against women. The Court held in X. and Y. v. the Netherlands[41], M.C. v. Bulgaria[42], and Bevacqua and S. v. Bulgaria[43]that states are positively obligated to prevent, investigate, and punish violence against women. In its broadest ruling on violence against women to date, Opuz v. Turkey[44], the Court found that the respondent state failed to meet its obligations to provide protection to the applicant and her deceased mother from domestic violence. This violated the right to life, the right to be free from inhuman and degrading treatment, and the right to non-discrimination under the European Convention.

The Organization of American States (OAS) in 1994 adopted the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women, which explicitly sets out the due diligence obligation to prevent and respond to violence against women[45]. The Council of Europe in 2011 adopted the Convention on Preventing and Combating Violence Against Women and Domestic Violence, which also obligates states parties to meet the due diligence standard in addressing violence against women[46]. Under the Protocol on the Rights of Women in Africa[47], violence against women violates women’s rights to life, integrity, and freedom of the person. The Protocol obligates states to prevent public and private violence against women by enacting and enforcing appropriate legislation, punishing offenders, rehabilitating victims, and eliminating “elements in traditional and cultural beliefs, practices and stereotypes which legitimise and exacerbate the persistence and tolerance of violence against women”[48]. The African Union Heads of State and Southern African Development Community have adopted additional instruments enshrining states’ obligations to prevent violence against women[49].

VI – CONCLUSION

International human rights law now applies to women in all spheres of life: at home, in the workplace, and at school. States can be held responsible for human rights violations that occur to women in ‘private’, or at the hands of non-state actors. The CEDAW treaty and Committee have made clear that states must work to end discrimination throughout the private sphere. Human rights treaties and jurisprudence require that states must exercise due diligence in preventing and responding to violence against women.

For more information about the course please read our introductory blog post.

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QUESTIONS TO CONSIDER:

1. What is the public/private divide and what conceptual problems are there with this simple dichotomy?

2. What implications does the public/private divide have for women's rights? Does the notion of human rights reinforce or collapse the public/private barrier?

3. How did CEDAW challenge the public/private divide?

4. How was the issue of non-state abuses addressed in international law?

5. What is the due diligence standard and how has it affected women's rights?

FURTHER READING:

CEDAW. 2012. http://www.womenstreaty.org/ 

UNIFEM. 2012. http://www.unifem.org/cedaw30/about_cedaw/ 

Ali, S.S. Women’s rights, CEDAW, and international human rights debates. In: J.L.Papart, Rai, S.M., & Staudt, K. (eds). (2002). Rethinking Empowerment: Gender and Development in a Global/Local World. London: Routledge. 

Charlesworth, H, (1988). The Public/Private Distinction and the Right to Development in International Law.12 Australian Y.B. of Int’l Law.190(190). 

Ackelsberg, M. & Shanley, M. “Privacy, Publicity, and Power: A Feminist Rethinking of the Public-Private Distinction.” In: Ackelsberg, M. 2009. Resisting Citizenship: Feminist Essays on Politics, Community, and Democracy. London: Routledge.


[1] Hilary Charlesworth, The Public/Private Distinction and the Right to Development in International Law,12 Australian Y.B. of Int’l L.190, 190 (1988) [hereinafter Public/Private].

[2] Gayle Binion, Human Rights: A Feminist Perspective, 17 Hum. Rts. Q. 509, 515-516 (1995).

[3] Charlesworth, Public/Private, supra note 1, at 193; Celina Romany, Women As Aliens: A Feminist Critique of the Public/Private Distinction in International Human Rights Law,6 Harv. Hum. Rts. J. 87, 100 (1993).

[4] Charlesworth, Public/Private, supra note 1, at 193.

[5] Id. at 190. See also Carol Pateman, Feminist Critics of the Public/Private Dichotomy, in The Disorder of Women 118-140, 122 (Carol Patemen ed., 1989).

[6] Charlesworth, Public/Private, supra note 1, at 193.

[7] Charlesworth, Public/Private, supra note 1, at 193.

[8] Binion, supra note 2, at 516. See also Rachael Lorna Johnstone, Feminist Influences on United Nations Human Rights Treaty Bodies, 28 H. Rts. Q. 148,150 (2006) (arguing that “[t]he dichotomy between public and private spheres [was] enshrined in the structures of international law.”).

[9] See Charlesworth, Public/Private, supra note 1, at 194 (“[There is a] distinction between matters of international (public) concern and matters “private" to states, considered within their domestic jurisdiction, and in which the international community has no recognised legal interest.”).

[10] Donna Sullivan, The Public/Private Distinction in International Human Rights Law, in Women’s Rights, Human Rights: International Feminist Perspectives 126-134, 126-127(J.S. Peters & Andrea Wolper eds. 1995); Johnstone, supra note 11, at 149-150.

[11] Johnstone, supra note 11, at 149; Arati Rao, The Politics of Gender and Culture in International Human Rights Discourse, in Women's Rights, Human Rights: International Feminist Perspectives 167-175, 169(J.S. Peters & Andrea Wolper eds. 1995); Christine Chinkin, A Critique of the Public/Private Dimension, 10 Eng. J. Int’l L. 387, 389 (1999); Felipe Gomez Isa, The Optional Protocol for the Convention on the Elimination of All Forms of Discrimination Against Women: Strengthening Protection Mechanisms of Women’s Human Rights, 20 Ariz. J. Int’l & Comp. L. 291, 294 (2003).

[12] Johnstone, supra note 11, at 150.

[13] Catharine A. MacKinnon, Rape, Genocide, and Women’s Human Rights, 17 Harv. Women’s L.J. 5, 15 (1994).

[14] Romany, supra note 4, at 99.

[15] Convention on the Elimination of all Forms of Discrimination against Women, Preamble, 18 Dec. 1979, 1249 U.N.T.S. 13 [hereinafter CEDAW]. See also Wilets, supra note 8, at 1033.

[16] Rebecca J. Cook, State Responsibility for Violations of Women’s Human Rights, 7 Harv. Hum. Rts. J. 125, 150 (1994).

[17] CEDAW, supra note 15, arts. 2(f), 5(a).

[18] Cook, supra note 20, at 167.

[19] Id. (citing CEDAW, supra note 1, at art. 2(3)).

[20] See Johnstone, supra note 11, at 150; International Women’s Rights Action Watch Asia Pacific and the Center for Women’s Global Leadership, Celebrating 30 Years of CEDAW: Achievements and Continuing Challenges Towards the Realisation of Women’s Human Rights 5 (2009) (summarizing comments of Rhona Copelon).

[21] Johnstone, supra note 11, at 150.

[22] CEDAW, Comm. on the Convention on the Elimination of All Forms of Discrimination Against Women, General Recommendation No. 19, UN Doc. A/47/37, para. 9 (1993).

[23] Id. para. 24(a).

[24] Declaration on the Elimination of Violence Against Women, arts. 1, 4, G.A. res. 48/104, 48 U.N. GAOR Supp. (No. 49) at 217, U.N. Doc. A/48/49 (1993).

[25] CEDAW, Comm. on the Convention on the Elimination of All Forms of Discrimination Against Women, General Recommendation No. 21, UN Doc. A/49/38, para. 11 (1994).

[26] CEDAW, Comm. on the Convention on the Elimination of All Forms of Discrimination Against Women, General Recommendation No. 23, UN Doc. A/52/38, para. 8 (1997).

[27] CEDAW, Comm. on the Convention on the Elimination of All Forms of Discrimination Against Women, General Recommendation No. 28, UN Doc. CEDAW/C/GC/28 (2010).

[28] Id. para. 9.

[29] Id.

[30] Id.

[31] Id. para. 13.

[32] Id.

[33] See generally Lee Hasselbacher, State Obligations Regarding Domestic Violence: The European Court of Human Rights, Due Diligence, And International Legal Minimums of Protection, 8 Nw. U. J. Int'l Hum. Rts. 190 (2010).

[34] A.T. vs. Hungary, CEDAW Communication No. 2/2003, U.N. Doc. CEDAW/C/32/D/2/2003 (2005).

[35] Goecke (deceased) vs. Austria, CEDAW Communication No. 5/2005, U.N. Doc. CEDAW/C/39/D/5/2005, (2007).

[36]T Fatma Yildirim (deceased) vs. Austria, Communication No. 6/2005, UN Doc CEDAW/C/39/D/6/2005 (2007).

[37] See, e.g., Inter-American Commission on Human Rights, Fernández-Ortega et al. (Aug. 30, 2010) Series C No. 215; Rosendo-Cantú and other (31 August 2010), Series C No. 216; Maria da Penha Maia Fernandes (Brazil) (16 April 2001) Report No 54/01, Case 12.051.

[38] Inter-American Commission on Human Rights, Access to Justice for Women Victims of Sexual Violence in Mesoamerica, OEA Ser.L/V/II. Doc.63, paras. 43-44 (9 December 2011).

[39] Inter-American Court of Human Rights, Gonzáles et al (‘Cotton Field’) vs. Mexico(Nov. 16, 2009) Series C No 205.

[40] Inter-American Court of Human Rights, Jessica Lenahan (Gonzales) et al. vs. United States, (July 21, 2011) Report No. 80/11, Case 12.626.

[41] X. and Y. vs. The Netherlands, App. No. 8978/80, ECHR (1985) 8 EHRR 235.

[42] M.C. vs. Bulgaria, App. No. 39272/98, [2003] ECHR 646.

[43] Bevacqua and S. vs. Bulgaria, App. No. 71127/01, Eur. Ct. H.R. (2008).

[44] Opuz vs. Turkey, App. No. 33401/02, Eur. Ct. H.R. (2009).

[45] Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women (Convention of Belém do Pará ), Article 7(b) and (f), 9 June 1994, 33 I.L.M. 1534 (1994).

[46] Council of Europe Convention on preventing and combating violence against women and domestic violence, art. 5, Apr. 7, 2011, C.E.T.S. No. 210.

[47] Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, adopted by the 2nd Ordinary Session of the Assembly of the Union, Maputo, CAB/LEG/66.6 (13 September 2000), entered into force 25 November 2005.

[48] Id. art. 4 (2).

[49] See Bonita Meyersfeld, Developments in International Law and Domestic Violence, 16 INTERIGHTS Bull. 107, 108-109 (2011).

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