Goldstein, Anne Tierney

English

Digital Commons @ American University Washington College of Law

REMARKS OFANNE TIERNEY GOLDSTEIN*I was very pleased to be asked to be on this particular panel,because I think the International Covenant on Civil and PoliticalRights (Civil and Political Covenant) too often is overlooked bypeople interested in women's international human rights. In fact, Ibelieve that the Civil and Political Covenant is the treaty that providessome of the most powerful tools for attacking sex discrimination. Itis in many ways even more powerful than the Convention on theElimination of All Forms of Discrimination Against Women (Women'sConvention), because the Women's Convention was drafted by peoplethinking about women and ratified by States that were thinking aboutwomen, and the States, therefore, wrote reservations to prevent theWomen's Convention from having too much impact. The strength ofthe Civil and Political Covenant, like the strength of the AmericanConvention, is that it has not only a clause under which Statespromise to not discriminate with regard to the covenant itself but hasa freestanding equal protection clause. A country that ratifies thecovenant, which many countries did without thinking about women,promises not to discriminate on the basis of sex in any of its laws.The Women's Convention is important because of its specificity andbecause the Committee on the Elimination of Discrimination AgainstWomen (CEDAW) has so much expertise. But in a sense, theWomen's Convention is also redundant. If a country has ratified theCivil and Political Covenant, it has promised not to discriminateagainst women, and anything that would be banned as discriminationagainst women under the Women's Convention would also be bannedunder the Civil Covenant.The Covenant and the Women's Convention are said to differ, inpart, because of the public/private distinction that we have beenhearing so much about. The Women's Convention purports to reach* Director of the Human Rights Education Project of the International Association ofWomen Judges. Ms. Goldstein has taught International and Comparative Law of Women'sRights as an Adjunct Professor at Georgetown University Law Center for the past four years.1315THE AMERICAN UNIVERSITY LAW REvIEW [Vol. 44:1315private conduct; it gives States a duty to shape private conduct. TheCovenant is supposed to be about only public action.In fact, this public/private distinction is largely illusory. ProfessorSusan Ross of Georgetown has suggested that whenever you see theword "public," substitute the word "important," and whenever you seethe word, "private," substitute the word, "unimportant." What onecountry or what one era sees as public, another will see as private, andvice versa. The public/private distinction is no more-and noless-than a male judgment of what is important enough to try to fix.Think about the public/private distinction in the context of thehistory of our own country. Why is it that lynching was recognized aspublic nearly 100 years before domestic violence was, when bothlynching and domestic violence are perpetrated by private individuals?At least in theory, conventional criminal assault and murder provi-sions could have been invoked against both lynch mobs and batterers.Yet the need for specific provisions to deal with lynching wasacknowledged (in the form of federal civil rights legislation) longbefore domestic violence legislation was enacted by any legislature.Now think about the public/private distinction in the context ofinternational law. Disappearances have been considered a violationof international law for a good twenty years, even though they areoften perpetrated by private actors. Yet it is only in the past five yearsor so that human rights groups and academics have begun toconceptualize domestic violence as a human rights issue. TheWomen's Convention does not even mention domestic violence(although the CEDAW has interpreted provisions of the treaty toencompass violence against women as a form of discrimination).Even if one were to accept the public/private distinction as ameaningful one, however, it is far from clear that the Women'sConvention reaches "private" conduct and the Civil and PoliticalCovenant does not. Under Article 2 of the Covenant, States bindthemselves "to respect and to ensurd' to individuals within theirterritories the rights recognized in the treaty. Under Article 6 theyguarantee that the "inherent right to life... shall be protected by law."Article 8 bans all forms of slavery and the slave trade, not merelygovernment trafficking in human beings. Article 17 not onlyproscribes "arbitrary or unlawful interference with [] privacy, family,home or correspondence [and] unlawful attacks on [] honour andreputation," but also grants individuals "the right to the protection of thelaw against such interference or attacks." Nothing in the Covenantlimits the responsibilities of member States to matters that can becharacterized as taking place within a "public" sphere.1316REMARKs OF GOLDSTEn1Finally, even if it were true that the Covenant only imposednegative duties on member States (i.e., that it only required States torefrain from affirmative acts of discrimination, and did not requireStates to take any positive action), the Covenant still provides womenwith powerful tools in the area of reproductive rights, because in mostcountries this is a field that is riddled with state action. There is noneed to resort to elaborate theories of state accountability fornonaction. For example, if a State has a law that requires a womanto have her husband's consent before she can get birth control, thatis state action. If she needs her husband's consent for an abortion,that is state action. State action cannot make an act, such as abortion,legal but discriminate on the basis of gender as to who can decide toperform that act.If a State has a law that places a higher value on female chastitythan on male chastity, that is state action. Several countries in theworld still have laws that decriminalize or even legalize abortion tosave a woman's honor-sometimes worded in terms of a maledefendant saving his wife or daughter's honor.Well, what does that mean? That kind of law is, itself, a form ofactive, and not merely tolerated, discrimination by the State. Thereis no state action problem if a State authorizes abortion in cases ofrape but then defines marital rape as noncriminal.Like Sarah Lal,' I feel a little undressed, because I have beenworking on this metaphor all morning of a spider's web and I am notsure I have it quite right. Discrimination in every country of theworld consists of a web of lies. I have been trying to figure out whatthe spider is that is hiding in the center, and I think it is somethingcalled patriarchy; it is the male reluctance to give up power. If yougo for the spider first, you are going to lose; it will bite. If you go forthe web, on the other hand, you can at least expose the spider toeverybody. You can at least show what is going on, and you can beginto unravel the system that supports the spider. Eventually, if youunravel enough of the web, the spider will either have to die or atleast become a vegetarian.To be more specific, I would like to take the case of Nigerian childmarriage that Sarah Lai is working on. She points to the problems ofapplying international law norms. Is child marriage inherentlyviolative of international human rights standards? Take a case where1. Sara Lai, Co-Acting Director of Human Rights Watch/Women's Rights Project presenteda paper at this Conference, Experiences in Fact-Finding and theApplication of Human Rights Standardsto Reproductive Health Issues, which she plans to publish in the Harvard Human Rights JournaL1995] 1317THE AMERICAN UNIWRSITY LAW REvEW [Vol. 44:1315a young girl agrees to marry for economic reasons or in order not toshame her family in a culture that understands marriage to be theunion of two families. Have her rights been violated? If so, whichones? If she is of marriageable age, she has an internationallyrecognized right to marry.The problem is, as Sarah's remarks demonstrate, that human rightstreaties provide little guidance on what constitutes marriageable age.Although the Women's Convention has a provision that dealsspecifically with child marriage, Article 16(2), that provision leavesStates free to set any minimum age of marriage they want. In otherwords, you will always get into trouble if you go for the spider first.If you go for something based on documents drafted with women inmind, it will be hard to win.On the other hand, if you take the Civil and Political Covenant andNigerian law itself, you have a slam-dunk case, because underNigerian criminal law, Article 282 of the penal code, it is rape to havesex with a girl under fourteen. A girl under fourteen is too young toconsent to rape under Nigerian law, unless she is your spouse,because marital rape is legal under Nigerian law. Therefore, you havea situation in which the State of Nigeria has passed a law saying thatfemales, but not males, forfeit their rights to the protection of thecriminal law on marrying. That is sex discrimination, which violatesnot only the Civil and Political Covenant, but the Constitution ofNigeria.If you focus on the documents that were not written with womenspecifically in mind, you will almost always win. That is why the Civiland Political Covenant is such an exciting and potentially useful toolin this area.1318

Remarks Conference on the Interventional Protection of Reproductive Rights: Civil & Political Rights and the Right to Nondiscrimination

https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1486&amp;context=aulr

Remarks Conference on the Interventional Protection of Reproductive Rights: Civil & Political Rights and the Right to Nondiscrimination

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