Constructing A Global Law-Violence Against Women and The Human Rights System

Constructing a Global Law-Violence against Women and the Human Rights System
Author(s): Sally Engle Merry

Source: Law & Social Inquiry , Autumn, 2003, Vol. 28, No. 4 (Autumn, 2003), pp. 941-977
Published by: Wiley on behalf of the American Bar Foundation
Stable URL: https://www.jstor.org/stable/1215792
JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide
range of content in a trusted digital archive. We use information technology and tools to increase productivity and
facilitate new forms of scholarship. For more information about JSTOR, please contact [email protected].
Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at
https://about.jstor.org/terms
and Wiley are collaborating with JSTOR to digitize, preserve and extend access to Law & Social
Inquiry
This content downloaded from

106.51.8.58 on Mon, 08 Jul 2024 05:49:59 +00:00
All use subject to https://about.jstor.org/terms
Constructing a Global Law-Violence
against Women and the Human
Rights System
Sally Engle Merry
This ethnographic analysis of one of the core human rights conventions

suggests that despite the lack of enforceability of this convention and its opera-
tion within the framework of state sovereignty, it is similar to state law.
The Convention on the Elimination of All Forms of Discrimination against
Women, or CEDAW, the major UN convention on the status of women,
articulates a vision of women's equal protection from discrimination and ad-
dresses gender-based violence as a form of discrimination. It had been ratified
by 171 nation states as of mid-2003. Its implementation relies on a complex
process of periodic reporting to a global body meeting in New York and a
symbiotic if sometimes contentious relationship between government repre-
sentatives and international and domestic NGOs. Like state law, it serves
to articulate and name problems and delineate solutions. It provides a re-
source for activists endeavoring to address problems of women's status and
turns the international gaze on resisting nations. Its regulatory strength de-
pends on the cultural legitimacy of the international process of consensus
building and related social movements to define social justice in these terms.
Thus, like state law, its impact depends on its cultural legitimacy and its
embodiment in local cultures and legal consciousness. This examination of
CEDAW as quasi law extends our understanding of law as a plural and a
symbolic system rooted in a particular historical moment of globalization.
Sally Engle Merry is professor of anthropology, Wellesley College, Wellesley, Massachu-

setts. This paper was originally prepared for the conference Violence between Intimates, Glob-
alization, and the State, supported by the Wenner-Gren Foundation, held at Wellesley
College on March 30-April 1, 2001. Research for the paper was generously supported by a
grant from the National Science Foundation, Cultural Anthropology Program and Law and
Social Sciences Program, # BCS-9904441, and by a visiting fellowship at the American Bar
Foundation. In 2001-2002, the author was a fellow at the Carr Center for Human Rights
Policy at Harvard University, which also contributed to the project. I am grateful for com-
ments from participants at the conference and from Jane Collier, Mindie Lazarus-Black,
Frances Raday, Judith Resnick, Austin Sarat, and Hanna Beate Schoepp-Schilling on earlier
drafts of the paper, although the responsibility for the final draft is entirely mine.
? 2003 American Bar Foundation.

0897-6546/03/2804-941$10.00 941

106.51.8.58 on Mon, 08 Jul 2024 05:49:59 +00:00
942 LAW & SOCIAL INQUIRY
One of the major ways the international human rights system e

ors to prevent violence against women is by international law, p
the Convention on the Elimination of All Forms of Discriminati
Women (CEDAW). This is the major United Nations treaty gov
women's status. It has been widely ratified and in theory incorpo
the national legal systems of ratifying countries. Yet, many lega
activists, and NGOs are concerned about the lack of enforcemen
nisms within this legal process (see, e.g., Byrnes and Connors
Afsharipour 1999; Ulrich 2000, 637; Resnik 2001, 678; Bayefsk
The committee charged with monitoring compliance with CED
the committees monitoring the other five major UN treaties, h
power to compel states to comply with the obligations they assumed
fying the treaty (see also Foot 2000, 269-70).
Because treaty bodies work within the global structure of sover
they are not empowered to impose sanctions on noncompliant s
primary mechanism for inducing compliance with CEDAW is th
tion of periodic reports that are presented by national governm
oversight committee, called a treaty body, at UN headquarters in Ne
Pressure is exerted through exposure, shaming, and appeal to th
tional standards articulated in the convention. Committee memb
process as a "constructive dialogue" in which they pose questions to
ments. The committee has little recourse against states that pre
reports or cover up discriminatory practices. They cannot prevent a
ment from providing evasive or scanty answers although they can w
cal "concluding comments" that are sent to governments and pos
Intemet. There is a new individual complaint procedure for CED
relatively few states have ratified it yet. Overall, compliance depend
will and commitment of national political actors and pressures f
countries and nongovernmental organizations (NGOs). A rec
study of all six treaty bodies concludes "the gap between universal r
remedy has become inescapable and inexcusable, threatening the
of the international human rights legal regime. There are over
numbers of overdue reports, untenable backlogs, minimal indivi
plaints from vast numbers of potential victims, and widespread
states to provide remedies when violations of individual rights a
(Bayefsky 2001, xiii).
1. E.g., Bayefsky argues that "If rights are not followed by remedies, and sta
little to do with reality, then the rule of law is at risk" (2001, 7). Byrnes and Con
out that women-specific human rights tend to have less effective implementation
than other human rights, an indication of a pervasive second-class status of wom
rights (1996, 679). However, in her study of the impact of the human rights syste
Rosemary Foot notes that there is a debate about the way norms are diffused
system, with some emphasizing the role of constraint and fear of consequences fo
ance while others stress the constitutive role of norms and the symbolic significan
ance for a nation's self-identity (2001, 5-6). She concludes that both are importan

106.51.8.58 on Mon, 08 Jul 2024 05:49:59 +00:00
A New Global Legality? 943
CEDAW is law without sanctions. But a closer examination of the way

the CEDAW process operates suggests that although it does not have the
power to punish, it does important cultural work by articulating principles
in a formal and public setting and demonstrating how they apply to the
countries under scrutiny. The process of ratification, preparing reports, and
presenting and discussing reports fosters new cultural understandings of gen-
der and violence. The central regulatory feature of the Women's Conven-
tion and its hearings is the definition and naming of problems and the
articulation of solutions within a prestigious global forum. National and in-
ternational NGOs as well as other international actors endeavor to shame
noncompliant governments. This is a cultural system whose coin is admis-
sion into the international community of human-rights-compliant states.
At the heart of the legal process of monitoring this international human
rights convention is the cultural work of altering the meanings of gender
and of state responsibility for gender equality. Much sociolegal scholarship
suggests that similar processes are basic to the way state law regulates behav-
ior as well. Only a small fraction of conflicts actually become cases in court
and compliance depends largely on individual consciousness of law (see
Merry 1990; Ewick and Silbey 1998).
Despite its lack of sanctions, CEDAW can be considered part of an
emerging global system of law. As global law has expanded, it has acquired
greater influence over national and local systems of law. In the late twentieth
century, global social reform movements such as feminism and human rights
advocacy have increasingly turned a transnational gaze on local and national
laws and practices and found them wanting.2 International human rights
law offers new opportunities to pressure offending governments. Keck and
Sikkink's study of transnational NGOs shows the critical role they play in
defining social problems, giving them names, and doing the research neces-
sary to document their scope and severity (1998). Indeed, they show how
the category of violence against women itself was cobbled together by NGOs
out of several distinct issues. Since the end of the cold war, the idea that
legitimate sovereignty rests on democratic governance and humane treat-
ment of citizens has been growing, so that the new international "standard
of civilization" includes acceptance of human rights (Foot 2000, 11). During
the 1990s, sovereignty was increasingly defined as contingent on a country's
human rights performance (Foot 2000, 251-52). These ideas resonate with
colonial era conceptions of what it means to be a "civilized" nation and a
respected member of the international community.
This article, along with the symposium as a whole, seeks to reconceptu-
alize violence against women in intimate relationships as a problem rooted
in structural conditions such as political economy, globalization, the expan-
2. This process is analogous to the constant renegotiation of the boundaries of federal,

state, and local control in the United States (see Resnik 2001, 670-79).

106.51.8.58 on Mon, 08 Jul 2024 05:49:59 +00:00
sion of capitalism, and the growing inequality between rich and po

as well as in the dynamics of interpersonal interactions. Although
personal framework has come to dominate U.S. understandings
against women, the international movement takes a far more struc
proach. The articles in this symposium locate discussions abou
against women within these larger structural systems. They e
regulation of violence against women in light of the changing rela
between national and international law and the emerging notion
national legal regulation of violence against women. They consid
relations between wealthy donor states and poor recipient state
operation of this system.
The work of the committee that monitors compliance with
provides a good venue in which to explore these issues. Count
typically discuss the extent of violence against women and efforts
it, while committee members frequently ask government repr
questions about gender-based violence. This article discusses t
reports of Guinea, India, and Egypt and their presentations at
committee in 2000 and 2001, some of which I observed. At thes
held at UN headquarters in New York, the CEDAW committee
governments to change national and local laws, institutions, an
understandings that discriminate against women. The convent
lates the principle of gender equality in the enjoyment of human r
in the elimination of gender-based discrimination in marriage, wor
tion, politics, the legal system, and the family. Like other human
courses and instruments, it is committed to universalism: to th
there are minimal standards of human dignity that must be prote
societies (An-Na'im 1992; Ignatieff 2001; Schuler 1992; see Wi
Universal gender equality requires eliminating those laws and i
practices that treat women in discriminatory ways. It advocat
discriminatory practices and introducing compensatory measures f
equalities. With reference to violence against women, the underlyi
is that improving women's status with relation to men will re
vulnerability to violence.3
Others have suggested different approaches to protecting wom
violence. For example, although some Islamic states insist that
men are not equal, it is nevertheless possible within this religio
to critique violence against women (Hajjar 2001, 11). At a con
women in Palestine that I attended in Gaza in 1999, many of the P
women argued for a reinterpretation of Islam that would provide
choice and safety, but they did not ask for gender equality no
3. This is, however, not always so straightforward. E.g., Joan Fitzpatrick arg
treatment fails to protect women from violence by police since women's special
to gender-based violence may be buried in the larger category of police abus

106.51.8.58 on Mon, 08 Jul 2024 05:49:59 +00:00
reject Islam. Similarly, some conservative Christian groups in the United

States emphasize the inequality of man and woman in marriage while stress-
ing the duty of husbands to honor their wives (see Merry 2001b). Gender
equality as a way of dealing with women's vulnerability to violence is a
culturally specific approach to the problem, one promoted by secular Euro-
American feminists as well as feminists in many other parts of the world. It
seems to be the most effective strategy, but it is not the only one. Moreover,
although no country has come close to achieving gender equality, even those
that have achieved relative equality still experience violence against
women. As Jane Collier argues, with the transition to a modern, relatively
egalitarian, family system in which women as housewives are viewed as
spending family resources in place of an earlier system in which women were
seen as producers of goods for the family, women may become more rather
than less vulnerable to violence (1997).
The convention focuses primarily on eliminating discrimination
against women to equalize their status with men. Feminists have long
pointed out the limitations of a rights-based framework for preventing vio-
lence against women in the United States (see Schneider 2000). There are
other international challenges to this secular, rights-based vision of justice.
Some come from religious groups rather than feminists-groups that empha-
size preserving the family over protecting the woman. In contrast, the princi-
ple of equal rights stresses the value of individual autonomy and physical
safety over the sacredness and permanence of the family. One of the major
debates about wording at the 2000 Beijing Plus Five conference, the five-
year review of the Beijing World Conference on Women in 1995, concerned
religious versus secular views of the good society. The United States and
Europe wanted to include language on reproductive rights and sexual orien-
tation, although the Holy See and many nations in other parts of the world
objected, including some Islamic countries. Some countries claimed that a
religiously organized society provided more stability and safety for women
than a secular one. There were other differences as well. African countries
sought to include the relationship between gender violence and globaliza-
tion, poverty, armed conflict, and structural adjustment in the texts while
more affluent nations resisted. Cuba fought against overly strong systems of
monitoring compliance and was joined by Libya and Pakistan, all countries
that are concerned about the loss of sovereignty in such monitoring systems.
The human rights regime articulates a particular cultural system, one
rooted in a secular transnational modernity. This view is contested by alter-
native ones such as religious nationalism. CEDAW, like the rest of the hu-
man rights regime, assumes that culture, custom, or religion should not
condone violations of human rights. The committee members of CEDAW
often present a united front against recalcitrant or evasive government rep-
resentatives. They uniformly condemn injurious cultural practices that dis-
criminate against women, a position clearly articulated in the text of the

106.51.8.58 on Mon, 08 Jul 2024 05:49:59 +00:00
convention. This universalizing approach is structured by the conv

itself. The committee's mandate is to apply it to all countries equally. C
tries that ratify it assume the burden of conforming to its requiremen
gardless of their specific cultural attributes. This is the mission th
committee adopts. Thus, the committee is not explicitly promoting tran
tional modernity but is pressing governments to conform to the terms
convention that embodies many of the ideals of that modernity. Th
vention is the product of global negotiation and consensus building by g
ernment representatives within several UN deliberative bodies such
Commission on the Status of Women and the General Assembly (Jac
1992, 445-46). It offers a universal vision of a just society in which
differences do not justify continuing discrimination against women. In
words, claims to culture do not justify deviation from the culture of tr
tional modernity. Cultural differences are respected, but only within li
Cultural difference does not justify assaults on the bodily integrity of vu
able people. The human rights community generally resists seeing claim
cultural difference as a valid justification for practices that they de
harmful to women, children, or other vulnerable populations.
CULTURE AS AN OBSTACLE IN HUMAN RIGHTS

DISCUSSIONS
When government representatives, committee members,

vention invoke culture in CEDAW proceedings, it is more often a
cle to change than as a mode of transformation or as a resou
often appears as a relatively static and homogenous system, b
lated, and stubbornly resistant. The convention and, to some
committee members rely on a vision of culture that imagines it a
consensual, and sustained by habitual compliance with its rule
similar to the model of culture developed in the mid-twentiet
anthropology, differs dramatically from models of culture devel
last two decades. These models emphasize culture as an histor
constantly being made and remade and rife with internal conflicts
ences (see Comaroff and Comaroff 1991, 1997). Rather than
an isolated and smoothly humming machine, a cultural system is
and creative interaction with other societies and with transna
When the drafters of the convention thought about culture, t
former meaning. Further, they used culture to describe other
their own. Similar language appears in other documents abo
against women. The Declaration on the Elimination of Violen
Women (1993) obliges states to condemn violence against wom
to invoke custom, religion, or culture to limit their obligatio
consensually produced human rights documents, the Vienna

106.51.8.58 on Mon, 08 Jul 2024 05:49:59 +00:00
and Program for Action (United Nations 1993) and the Beijing Declaration
and Platform for Action (United Nations 1995), require states to eliminate
traditional, customary, and cultural practices harmful to women (Bymes and
Connors 1996, 22-23). The convention and the questions of the experts
suggest that certain features of cultural belief and institutional arrangements,
such as patterns of marriage, divorce, and inheritance, can serve as barriers
to women's progress. The committee and other human rights groups identify
and seek to change "harmful traditional practices" rooted in custom and
tradition, of which female genital mutilation is the prototype. Many who
write about women's rights to protection from violence see culture as a prob-
lem rather than as a resource (Bunch 1990, 1997; Cook 1994b, 1994c; but
see Green 1999). Activists blame patriarchal traditional culture for many
aspects of women's subordinate status.
Government representatives at CEDAW hearings also portray prac-
tices that disadvantage women as rooted in patriarchal culture, presenting
this as an apparently fixed and homogenous cultural space that seems beyond
intervention and change. These arguments are typically used to justify non-
compliant national policies such as discrimination against women in access
to schooling or divorce. Governments sometimes blame their failure to en-
courage gender equality on intractable patriarchal culture.
On the other hand, committee members and NGO representatives rec-
ognize the importance of building on national and local cultural practices
and religious beliefs to promote transformations of marriage, family, and
gender stereotypes. They argue that reforms need to be rooted in existing
practices and religious systems if they are to be accepted (see An-Na'im
1992). Thus, alongside the portrayal of culture as an unchanging and intran-
sigent obstacle lies another more fluid conception of culture. The former
view is, as scholars have noted, often connected to racialized understandings
of "others" forged during the colonial era (Sinha 2001, 1581, 1583-92; Ra-
zack 1998; Volpp 2000). The latter is closer to the current anthropological
theorization of culture (see Merry 2001a). In other words, there is an old
vision of culture as fixed, static, bounded, and adhered to by rote juxtaposed
to a more modern understanding of culture as a process of continually creat-
ing new meanings and practices that are products of power relationships
and open to contestation among members of the group and by outsiders. In
CEDAW discussions, when culture is raised as a problem, its old meaning
is invoked. This is, of course, the way the term is used in the convention
itself, which explicitly condemns cultural practices that discriminate against
women in articles 2 and 5 (see below). When culture is discussed as a re-
source, or when there is recognition that the goal of the CEDAW process
is cultural reformulation, the second meaning is implied. Needless to say,
the coexistence of these two quite different understandings of culture in the
same forum is confusing. I think it obscures the creative cultural work that
the CEDAW process accomplishes.

106.51.8.58 on Mon, 08 Jul 2024 05:49:59 +00:00
I have been doing ethnographic research on the strategies to dim

violence against women deployed by the United Nations in its effo
several of its bodies: the Commission on the Status of Women, the
Commission on Human Rights, special international meetings such
UN General Assembly Special Session (Beijing Plus Five), and heari
held by the CEDAW committee. I observed part or all of five CED
sessions-two in 2001, two in 2002, and one in 2003-each of which lasted
three weeks and considered reports from about eight countries. I interviewed
eight experts serving on the committee and talked to NGO representatives
from reporting countries and from international NGO groups. I also talked
to local activists and some government representatives from Fiji, India, and
Hong Kong after they returned home from attending CEDAW hearings.
CREATING CULTURE IN THE CEDAW PROCESS
The CEDAW Monitoring Process
CEDAW is one of six UN conventions that has been widely ratified

and is monitored by a committee, referred to as a treaty body. The six con-
ventions of the UN system form the legal core of the human rights system.
Conventions enter into force through national ratification. The other treat-
ies are the Covenant on Economic, Cultural, and Social Rights, the Cove-
nant on Civil and Political Rights, the Covenant against Racial
Discrimination, the Convention against Torture, and the Convention on
the Rights of the Child (see Bayefsky 2001, 2; Jacobson 1992). Treaty bodies
monitor compliance with ratified treaties by requiring countries to write
periodic reports detailing their efforts to put the treaty into force. The com-
mittee reads and comments on the report. The process of preparing, present-
ing and discussing the reports encourages governments to think about
situations within their countries relevant to the treaties and to consider ways
of improving them. Many of these treaty bodies have developed an optional
protocol that allows individuals to file complaints directly with the commit-
tee.4 CEDAW has its own optional protocol that entered into force by late
2000. It allows individual women or groups to submit claims of violations
of rights protected under the convention to the CEDAW committee, but
only after all domestic remedies have been exhausted and only in countries
that have ratified it. The protocol also creates a procedure by which the
committee can inquire into situations of grave or systemic violations of
women's rights (DAW 2000, 7). As the optional protocol comes into force
more widely, there will be a new system of sanctioning in place, but it applies
4. Complaints and inquiry procedures are particularly important for the High Commis-
sion on Human Rights, which has, since 1978, appointed special rapporteurs, representatives,
and working groups to carry out investigative procedures (see Foot 2000, 34-36).

106.51.8.58 on Mon, 08 Jul 2024 05:49:59 +00:00
only to those countries that have ratified it. By mid-2002, 41 states had
ratified it but no complaints had yet been received. CEDAW experts encour-
aged national delegations to ratify the optional protocol and urged NGOs
to bring forward complaints under the new procedure at the July 2001 meet-
ing. The monitoring and surveillance procedures of the six treaty bodies are
the centerpiece of the legal implementation of human rights. In a recent
major study of the six treaty bodies, Bayefsky concludes: "It is the legal char-
acter of these rights which places them at the core of the international
system of human rights protection. For these rights generate corresponding
legal duties upon state actors, to protect against, prevent, and remedy human
rights violations" (2001, 5). Some countries have produced 20 or more re-
ports and the most frequently reporting country, the United Kingdom, has
produced 38 (Bayefsky 2001, 244-51).
The reasons why a nation would choose to ratify CEDAW and subject
itself to periodic reporting and examination are not obvious. They are
linked, I think, to claims to civilized status in the present international or-
der, much as ideas of civilization provided the standard for colonized coun-
tries during the imperial era. Fanon's famous afterword to Wretched of the
Earth (1963) testifies to the power of this idea as he urged decolonizing
nations to look to sources of moral virtue other than the ideas of the rights
of man established by Europe. Bayefsky notes that states may consider ratifi-
cation an end in itself and, given the relatively brief and infrequent monitor-
ing process, are not seriously concerned about the national consequences
(2001, 7). On the other hand, the work of Foot (2000) and many others
emphasizes the importance of compliance with human rights instruments
for participation in the international community and for benefits such as
aid, trade relations, and foreign investment.
By mid-2002 the convention had been ratified by 170 nation states.
The United States has not ratified CEDAW, along with Afghanistan, Soma-
lia, and about 16 other states. The convention has been under consideration
by the Senate since the early 1980s and, according to a spokesman from
the U.S. delegation to the UN, was voted out of committee with a set of
reservations and declarations in 1994. The Senate committee again voted
to approve it in 2002. In her study of human rights in China, Foot notes
that the U.S. failure to ratify many important human rights conventions
has undermined its credibility as a promoter of international human rights
(2000). There has been considerable discussion of the U.S. failure to ratify
this convention as well as several other core human rights conventions,
with explanations ranging from the lack of domestic political support by a
constituency that feels its rights are already adequately protected to the na-
tion's system of popular sovereignty, which means that ratification requires
a legislative vote rather than an executive order (Ignatieff 2002). It appears
that the 2002 consideration of the CEDAW treaty in the U.S. Senate com-
mittee was strongly opposed by conservatives including the Christian right,

106.51.8.58 on Mon, 08 Jul 2024 05:49:59 +00:00
although this information comes from e-mail listserves rather than

coverage, which was minimal. Even in the United States, there is con
able disagreement about the value of human rights.
The Convention
The CEDAW convention incorporates features of the Universal Decla-

ration of Human Rights (1948), the International Covenants of Civil and
Political Rights and on Economic, Social, and Cultural Rights, and Interna-
tional Labor Organization conventions. It emphasizes a vision of gender
relations in terms of equal rights for men and women and explicitly prohibits
discrimination on the basis of sex. It was built on conventions on the politi-
cal rights of women and the nationality of married women developed in the
1950s. Between 1965 and 1967 the Commission on the Status of Women
expanded it into a declaration (DAW 2000, 4; see also Jacobson 1992). In
1979 it was adopted as a convention by the General Assembly and opened
for ratification. It achieved a sufficient number of ratifications to go into
force by 1981.
CEDAW has been described as an international bill of rights for
women. It focuses on eliminating discrimination against women that vio-
lates the principle of equality of rights and respect for human dignity (DAW
2000, 5). It reflects ideas about women's status developed during the 1950s to
1970s and emphasizes the principle of nondiscrimination and legal equality,
focusing only on discrimination against women rather than on all discrimi-
nation on the basis of sex (Jacobson 1992, 446). The 1950s and 1960s equal
rights orientation is supplemented by 1970s concerns with political and eco-
nomic development (Reanda 1992, 289-90). Thus, it endeavors to remove
barriers that prevent women from being the same as men. Feminist scholars
have queried whether an approach that uses similarity to males as a standard
can achieve substantive equality for men and women (e.g., Charlesworth
1994). Some have advocated interpreting discrimination not as difference
but as disadvantage, powerlessness, and exclusion (Cook 1994c, 11-12).
Others note the very limited sphere of women's lives that is governed by
the law and that can be improved through the law and the state
(Charlesworth 1994; Coomaraswamy 1994). Coomaraswamy points out that
in South Asia, the law has relatively little autonomy with relationship to
the state and is often viewed with suspicion as a consequence of the colonial
past (1994, 46-47). Finally, as Charlesworth argues, the law is a patriarchal
institution and is part of the structure of male domination, with its emphasis
on rationality, objectivity, and abstraction and its opposition to emotion,
subjectivity, and contextualized thinking, often seen more as the province
of women (1994, 65).

106.51.8.58 on Mon, 08 Jul 2024 05:49:59 +00:00
Despite the inadequacies of a nondiscrimination framework, this is the

approach enshrined in the convention. The committee has developed sev-
eral general recommendations interpreting the convention on issues such
as health and violence against women that go beyond the discrimination
framework and focus more on social and economic development. As Cook
points out, violence against women is an issue that reveals acutely the limita-
tions of the gender-neutral approach to equality and raises the need for spe-
cial treatment-such as the creation of shelters-rather than formal
equality (1994c, 20).
The 30 articles to the convention cover a broad array of social issues
such as political participation, education, employment, health, and the spe-
cial difficulties faced by rural women. States parties are required to eliminate
discrimination in the exercise of civil, political, economic, social, and cul-
tural rights both in the public domain and in the family (DAW 2000, 5).
CEDAW not only proscribes discrimination but also advocates positive steps
such as the elimination of sex-role stereotypes in the media and educational
materials and the creation of "temporary special measures" to benefit
women, measures that are not forms of discrimination but efforts to over-
come past disabilities. The thrust of the convention is a focus on legal regula-
tions that selectively disempower women, such as regulations requiring
women to have their husbands' permission to acquire passports, but it is
based on the assumption that producing equal rights for women requires
changing marriage laws, access to education and employment, and gender
images within the media.
CEDAW explicitly calls for cultural changes in gender roles. Article 2,
the core of the convention, requires states parties: "f) To take all appropriate
measures, including legislation, to modify or abolish existing laws, regula-
tions, customs and practices which constitute discrimination against
women" (DAW 2000, 14). Article 5 on sex roles and stereotyping calls on
states parties to take all appropriate measures: "a) To modify the social and
cultural patterns of conduct of men and women, with a view to achieving
the elimination of prejudices and customary and all other practices which
are based on the idea of the inferiority or the superiority of either of the
sexes or on stereotyped roles for men and women" (DAW 2000, 18). In
1987, after considering 34 reports, the CEDAW committee produced gen-
eral recommendation 3, noting
the existence of stereotyped conceptions of women, owing to socio-

cultural factors, that perpetuate discrimination based on sex and hinder
the implementation of article 5 of the Convention, Urges all States
parties effectively to adopt education and public information pro-
grammes, which will help eliminate prejudices and current practices
that hinder the full operation of the principle of the social equality of
women. (DAW 2000, 56)

106.51.8.58 on Mon, 08 Jul 2024 05:49:59 +00:00
In 2001, one expert observed to me that she found it striking tha

the countries they had considered, including the apparently most prog
Scandinavian countries, gender stereotypes had proved extremely r
to change. While there was clearly greater equality in some countries,
types about men and women persisted, particularly focused on id
women as caretakers.
Violence against women was not included in the initial conven
probably because it was not a widely recognized issue at the time the co
tion was being prepared. It is now discussed extensively in country
and during hearings. At least eight articles bear indirectly on vio
against women, including those on gender stereotypes, trafficking in w
prostitution, disruptions of employment through sexual harassment, w
en's health including in rural areas, and women's position in the
(Bernard 1996, 80). In 1989 the committee adopted general recomm
tion 12, recommending consideration of the issue and requiring st
on gender violence. General recommendation 19 in 1992 developed
issue further, defining gender-based violence as a form of discrim
"that seriously inhibits women's ability to enjoy rights and freedo
basis of equality with men" (DAW 2000, 63). This recommendation
the basis for the UN General Assembly Declaration on Violence ag
Women in 1993 (UN General Assembly 1994, 217). A former C
member, Desiree Bernard of Guyana, considers this declaration one
most significant efforts to combat violence against women even th
is not binding on member states (1996, 81). It urges states to con
violence against women and not to invoke any custom, tradition, or re
consideration to avoid their obligations toward its elimination.
CEDAW general recommendations are not legally binding in the
way as the text of CEDAW, but they are designed to show states p
their obligations when they are not mentioned or not sufficiently exp
in the convention itself. Committee members frequently ask questions
the extent of violence and the strategies a government has taken to
it. The committee encourages reporting states to recognize the clo
tionship between discrimination against women, gender-based violen
violations of human rights and fundamental freedoms and to take
measures to eliminate all forms of violence against women (DAW
63-66). Thus, it grounds its concern about gender-based violence
overarching framework of discrimination. Gender-based violence is def
as "violence that is directed against a woman because she is a wom
that affects women disproportionately. It includes acts that inflict ph
mental or sexual harm or suffering, threats of such acts, coercion
other deprivations of liberty" (General Recommendation 19). The r
mendation specifies all the rights and freedoms that gender-based
infringes, such as the right to equality in the family and the right to
protection under the law.

106.51.8.58 on Mon, 08 Jul 2024 05:49:59 +00:00
Ratification
States that ratify CEDAW are obliged to incorporate it into their do-
mestic legislation (see Cook 1994a). According to Schoepp-Schilling
(2000), a member of the CEDAW committee for 12 years, states parties
are obliged to undertake all legislative and other appropriate measures to
eliminate discrimination against women without delay. She notes that this
contrasts with other conventions, such as the International Covenant on
Economic, Social, and Cultural Rights, which obliges states to take steps to
achieve "progressively" the full realization of rights. Nevertheless, she notes
that states often hide behind financial shortfalls and other difficulties as
excuses for not initiating reforms. Indeed, in the hearing on the Burundi
country report in 2001, there was widespread recognition by CEDAW com-
mittee members that in a largely rural country undergoing a protracted civil
war, relatively little could be anticipated in the way of reforms to benefit
women. It is common for states of the global South to complain that they
need more financial help from the global North in order to make the desired
changes.
States may ratify CEDAW with reservations to particular items of the
convention by declaring that certain parts of the treaty are not binding on
them. The committee discourages this and endeavors to persuade ratifying
states to remove their reservations,In the past, this convention had more
reservations to it than any other (DAW 2000, 6; see also Cook 1990). A
recent study shows that CEDAW is not the most reserved convention, yet
it still has 123 reservations, declarations, and interpretive statements, which
are in effect reservations. Three-quarters of these (76%) refer to the sub-
stance of the text itself rather than to its procedures (Bayefsky 2001, 66).
Forty-nine states parties, or 30% of those that have ratified CEDAW, have
entered reservations. In comparison, the Convention on Civil and Political
Rights has 181 reservations, 88% of which are normative, from 35% of states
parties. The Convention on the Rights of the Child has 204, 99.5% of which
are normative, from 32% of states parties. Thus, like CEDAW, these con-
ventions are heavily circumscribed by reservations. Some of the reservations
are to core portions of the convention, such that they undermine the pur-
pose of the convention itself. Egypt, for example, entered a general reserva-
tion on article 2, explaining that it is "willing to comply with the content
of this article provided that such compliance does not run counter to the
Islamic Shari'a" (Egyptian Non-Governmental Organizations Coalition
2000, 5). Yet article 2 embodies the core of the convention, stating: "States
Parties condemn discrimination against women in all its forms, agree to
pursue by all appropriate means and without delay, a policy of eliminating
discrimination against women, and to this end undertake" and lists a variety
of constitutional, legal, and legislative measures to eliminate this discrimina-
tion. Bayefsky notes that article 2 has 5 general reservations, another 8 nor-

106.51.8.58 on Mon, 08 Jul 2024 05:49:59 +00:00
mative general declarations and interpretive statements, and 12 m

specific reservations, while there are 25 reservations to article 16, the a
that requires equality in marriage and family law (2001, 66, 717-18
CEDAW committee is concerned that reserving on article 2 consti
failure to adopt the spirit of the Convention. On the other hand,
Schoepp-Schilling (2000) notes, even states with significant reserv
present reports and engage in dialogue with the committee's experts, so
may still be constructive for them.
The Committee Hearings
The dialogue between a country and the committee occurs durin

regular meetings of the CEDAW committee. At these hearings, the com
tee of 23 reads the report and meets with a delegation from the co
often a high-ranking minister for women's affairs. The committee mem
called experts because of their knowledge and experience in the fie
questions about discrepancies between the actions of the country an
obligations it assumed when it ratified the convention. The experts
pected to act independently and not to speak for their national g
ments. These experts are nominated by their national governmen
elected for four-year terms by the state signatories to the convention.
are chosen to fit into pre-established regional groupings in order to gua
adequate regional representation. According to one expert, she was s
because the NGOs in her country encouraged her government to no
her, and her government then negotiated with other governments to g
candidate elected. Her primary base of support was the NGO comm
Experts are lawyers, diplomats, government bureaucrats, scholars, j
medical doctors, and educators (Schoepp-Schilling 2000). Based on th
graphies they provided to the UN as candidates for election to CEDA
the 2002 committee more than half (14) have primarily NGO or aca
backgrounds; of the 14, 2 are also in elected political positions, and
cently joined her government after an NGO career. Four of these ar
professors, coming from Israel, Sri Lanka, Sweden, and Turkey. They b
considerable academic expertise and independence to the process. A
one-third (8) are primarily employees of their national governments in
5. The CEDAW committee has said that articles 2 and 16 are core provisions
convention and that reservations that challenge central principles are contrary to the
ions of the convention and to general international law. "Reservations to articles 2
perpetuate the myth of women's inferiority and reinforce the inequalities in the live
lions of women throughout the world. The Committee holds the view that article 2 is
to the objects and purpose of the Convention.... [R]eservations to article 16, whethe
for national, traditional, religious, or cultural reasons, are incompatible with the Conv
and therefore impermissible" (from CEDAW, A/53/38/rev.1, paras. 6, 8, 15, 16, 17, as
in Bayefsky 2001, 69).

106.51.8.58 on Mon, 08 Jul 2024 05:49:59 +00:00
foreign service or women's ministries. This adds up to 22: One committee

member was recently brought on, for whom I did not have information, and
a second just replaced another member, so I used the information for the
previous member. The experts generally have considerable previous expo-
sure to UN activities and are often educated in other countries. Of the 22
for which I have information, at least 15 studied at some point in Europe
or North America, and at least 16 had attended other UN meetings and
conferences. This is a highly educated and transnationally active group of
people (CEDAW/SP/1996/3; CEDAW/SP/1998/3; CEDAW/SP/2000/6).
Since CEDAW hearings began in 1983, all but two of the experts have been
women.
There are sometimes previous connections between

tions and the committee. For example, the chair of the
was a former member of CEDAW. She said that thing
since the early days (the early 1980s), when the comm
as a group of women pestering governments. In gener
addition to holding regular jobs and devote considerab
sponsibilities, for which they receive expenses but little r
bring to the process impressive credentials in terms of sc
cation, NGO activism, extensive government service,
grounds in international participation. Most have a str
women's issues. The tenor of the hearings is always se
it is unfailingly polite, it sometimes takes on an edge
are criticisms explicit, however. More often, experts speak
of the need for more information. Privately, some ex
me on how frustrated they felt about one or another cou
as its abysmal gender-based statistics or failure to imp
they did not level such accusations against government
a country acknowledges that it has had difficulty in impl
the experts tend to be more supportive than if a count
its failures.
The experts present a united front in these hearings, although they do
differ on some issues, such as abortion and the value of separate legal systems
for different religious communities within a country. Those more closely
connected to NGO or academic communities tend to challenge govern-
ments more than those employed by their national governments. The latter
tend to be less confrontational and more inclined to praise a country's efforts
than to condemn its shortfalls. Despite these differences, the hearings give a
sense of unanimity among the experts as they pose questions to government
representatives.
The CEDAW committee, which has been meeting since 1982, was
6. They are paid only $3,000 a year for 8 weeks of meeting time and considerable prepara-
tion between meetings (Bayefsky 2001, 99).

106.51.8.58 on Mon, 08 Jul 2024 05:49:59 +00:00
originally restricted to meeting once a year for two weeks. In 1

panded to three weeks a year and in 1997 three weeks twice a year.
it held an exceptional third meeting to catch up with the backlog of
Country reports were initially only two to three pages according to
term member of the committee, but now routinely run to 60 pages
sionally up to 150 pages. By March 2000, CEDAW had considered 104
initial reports, 72 second reports, 45 third reports, and 13 fourth periodic
reports (DAW 2000, 8). By 2001, it was common practice to hear two or
even three periodic reports from the same country at once. However, a sub-
stantial number of ratifying states have failed to file a report at all or have
fallen behind. By mid-2001, 49 states had not filed an initial report, 65 were
late in filing their second periodic report, 42 the third periodic report, 52
the fourth, and 41 were late in their fifth periodic report. Several states that
ratified in the early 1980s have never filed a report and thus appear in all
of these lists, such as Brazil, Bhutan, Congo, Costa Rica, and Togo (UN
Secretary General 2001, CEDAW/C/2001/11/2).
The focus of the CEDAW committee's work is reading the periodic
reports of signatory countries, asking questions, and writing concluding com-
ments. Every ratifying country is obligated to provide an initial report within
one year of ratification on the legislative, judicial, and administrative mea-
sures it has adopted to comply with the convention and obstacles it has
encountered, and to prepare subsequent reports periodically every four years.
For initial reports, the committee uses a two-stage process. First, the national
delegation presents its report and the committee members, sitting in a large
conference room at the UN building in New York, go through it carefully
and ask questions, request clarification, and note contrasts with other coun-
tries' experiences with these particular reforms. Second, the national delega-
tion returns to the committee two or three days later and provides answers
to these questions. Some answers are brief and inconclusive and some issues
are not addressed, but the committee can do little under these circum-
stances.
For subsequent reports, a subcommittee consisting of a representative

from each of four geographical regions meets at the end of the previou
session to read the report and pose questions to which the national represen-
tatives should provide written responses within 40 days. At the next meeting
of CEDAW six months later, government representatives present an up-
dated overview statement of perhaps one hour and are asked further ques
tions by the experts to which they reply immediately. This process is
thorough: one country complained that it had received 64 additional ques
tions before the meeting. The questions and the replies, as well as the coun-
try reports, are available to all the members of the committee.
The goal of the reporting process is to promote change in the govern-
ment by forcing it to review domestic law, policy, and practice and to assess
to what extent it is complying with the standards of the convention. Ac

106.51.8.58 on Mon, 08 Jul 2024 05:49:59 +00:00
cording to the division that supports the process, "Strengths and weaknesses
are submitted to public scrutiny, while consideration of the report by
CEDAW provides a forum for discussion with a wholly independent body
whose brief is to provide constructive assistance so that States meet their
treaty obligations" (DAW 2000, 8). Questions by experts frequently point
out the need for more information, particularly statistics disaggregated by
sex, in order to assess the relative participation of women in school, govern-
ment, and the workplace, for example. Their questions show how the con-
vention applies to the country giving the report, pinpoint areas where there
is not compliance, and provide comparative information about how other
countries have handled these issues. The tenor is unfailingly polite and cour-
teous, although questions are sometimes pointed. The experts I have talked
to emphasize that their goal is to be constructive as well as critical. One
expert said that this was a political process, and if a country chooses to
ignore it, there is nothing the committee can do. Sometimes governments
find the experience of reporting helpful.One of the government ministers
said that the attention and concern of the international community about
women's rights energized her and supported her work.
After hearing these reports, the committee meets in closed session to
develop its "concluding comments" for each country, which praise or express
concern about its efforts to comply with the convention as well as make
recommendations to be considered at the next review four years hence.
These comments are publicly available and in recent years have been posted
on the Internet. Governments differ in the extent to which they make these
comments public, but NGOs may publicize them in an effort to shame the
government into more action. There is, as Schoepp-Schilling (2000) notes,
little sanctioning power beyond the capacity to "shame" noncompliant
states parties.
In recent years, NGOs have begun to offer important support for this
process (see Afsharipour 1999, 157). Although their input was described as
minimal in the 1980s, the situation is changing (Jacobson 1992, 467).
NGOs are encouraged to write "shadow reports," which provide their ver-
sion of the status of women in their countries, and are often offered training
in producing these reports by UN agencies such as UNIFEM or UNDP (see,
e.g., UN Economic and Social Commission 2000; Afsharipour 1999, 165).
Some representatives of NGOs appear at the committee meetings in New
York, where they are not allowed to speak but can sit in the conference
room and informally lobby the experts, suggesting questions to ask. They also
have a special session with the experts. Their shadow reports are available to
the committee. A second source of information for committee members are
reports by other UN agencies such as the Food and Agriculture Organization
(FAO), UNICEF, UNIFEM, and the ILO on the status of women in a partic-
ular country. Finally, a U.S.-based NGO, the International Women's Rights
Action Watch (IWRAW) and its Asia-Pacific office based in Malaysia have

106.51.8.58 on Mon, 08 Jul 2024 05:49:59 +00:00
aided in training NGO representatives and regularly produced shad

ports on the countries under examination (see, eg., Afsharipour 1999
IWRAW began as a channel for NGOs to get information to comm
members, initially summarizing information and presenting it to comm
members in the 1980s (Jacobson 1992, 467). In the last few years, IW
AP has focused on bringing national NGOs to the CEDAW hearing
New York and encouraging them to write their own shadow reports
IWRAW and UNIFEM fund NGO representatives if possible. The C
committee sets aside an afternoon to hear NGO presentations at the
ning of each session. The government delegations are not present. A
January 2002 meeting, which I attended, most of the members were pr
to hear the NGO representatives make their oral statements. Country h
ings are attended by representatives of international NGOs such as Equa
Now, IWRAW, and national NGOs from that country as well as a sca
of students. The results of these hearings are made available to oth
agencies such as the Commission on the Status of Women (CSW
Economic and Social Council (ECOSOC), and the General Assembly.
However, it does not appear that they are considered extensively by these
bodies, based both on my own observations of CSW meetings and comments
by Jacobson (1992, 463-65).
Escaping Surveillance
There are a variety of ways for countries to escape scrutiny. One is to

fail to write a report or to do so only after a long delay. The list of countries
that are derelict in their reports is very long. By January 1, 2000, there were
242 overdue reports to CEDAW from 165 states parties. Overall, 78% of
all states parties had overdue reports, although the average for all treaty
bodies is an equally high 71% (Bayefsky 2001, 471). The second is to write
a superficial or partial report. Sometimes reports just recite the provisions
of the constitution or other legislation or are very brief and do not offer
candid self-evaluations of a state's compliance with its treaty obligations
(Bayefsky 2001, 21; Jacobson 1992). The third is to send low-level govern-
ment representatives instead of high-level delegations of ministers or assis-
tant ministers. In 2002, Uruguay, complaining that it was financially
strapped, asked its UN mission in New York to report and sent no one from
the country, much to the displeasure of the CEDAW committee. The UN
mission rarely is as informed about national issues as leaders of women's
ministries. A fourth is to evade direct answers to questions. A fifth is to
promise changes that do not in fact take place. A sixth is to reserve on
important articles on the grounds that they conflict with basic cultural, legal,
or religious tenets of the country. A seventh is to refuse to present a report
even after it has been submitted (Bayefsky 2001, 23).

106.51.8.58 on Mon, 08 Jul 2024 05:49:59 +00:00
Although the NGO community is present at CEDAW hearings to help

publicize the discussions and conclusions, treaty body meetings such as the
CEDAW hearings are quite different from the major meetings of govern-
ments and NGOs common at the end of the twentieth century such as the
Beijing Conference of 1995 or the Beijing Plus Five meeting in New York
in 2000. Participation is far smaller than at these conferences or at meetings
such as the Commission on the Status of Women or the High Commission
for Human Rights. Moreover, participation varies significantly depending
on the country and the number of NGOs it has, as well as on funding for
attending and for staying in New York. During the discussion of Egypt's
report in January 2001, a large audience of NGO representatives attended,
making up an audience of perhaps 30 people. Egypt has a large NGO com-
munity. Burundi and Kazakhstan had smaller audiences, and very few NGOs
attended the report on the Maldives. Similarly, in the July 2001 CEDAW
meetings, discussions of very small countries with few NGOs, such as An-
dorra, generated very few NGO observers, while more, about 15-20, came
to hear the reports of Vietnam, Nicaragua, and Guyana. Nevertheless,
NGOs make a critical contribution to the process. Based on her detailed
survey of all six treaty bodies, Bayefsky concludes "The treaty bodies have
been heavily dependent on information from NGOs in preparing for the
dialogue with states parties. State reports are self-serving documents that
rarely knowingly disclose violations of treaty rights" (2001, 42).
Clearly, governments can escape this system, but they face internal
pressure from national NGOs, who may be supported by international do-
nors and therefore active even if the country does not have enough wealth
to support them. In theory, they face pressure from other countries as well
via their NGOs, as Keck and Sikkink argue in their boomerang metaphor
(1998), but I saw little evidence of pressure by other nations. Instead, it
was primarily domestic NGOs that used the hearings to exert pressure on
governments to comply. Countries are concerned about their reputations in
the international community, but they clearly differ in their vulnerability
to international pressure depending on their size, wealth, form of govern-
ment, and dependence on the international community for trade, aid, and
other symbolic and material forms of exchange. Countries that are economi-
cally and politically dominant, such as the United States, may resist the
system by failing to ratify at all.
Country Reports and Conversations about Culture
How is culture discussed in the CEDAW process? As we have seen,

demands for cultural change are a fundamental part of the convention. Ex-
perts' questions often focus on the need to change gender stereotypes and
eliminate harmful cultural practices and customs. Many countries, on the

106.51.8.58 on Mon, 08 Jul 2024 05:49:59 +00:00
other hand, respond that they are unable to achieve progressive change be
cause of the persistence of patriarchal culture, tradition, customs, or ancient
ways. I will discuss the way culture emerged in the reports and discussion
of three countries: Guinea, India, and Egypt.
Although the theme of culture as static and resistant to change ap-
peared in many reports, it occupied a particularly prominent role in Guinea's
report, heard in the July 2001 CEDAW meetings. Guinea's report demon
strated the discrepancy between a legal system promoting formal equalit
between men and women and the practices of everyday life. It shows how
the concept of culture is used to explain and justify that discrepancy. Th
was Guinea's initial report, but also its second and third periodic report,
since it had not filed any reports since ratifying the convention in 1982. In
the opening speech and in the country report, the delegation from Guine
emphasized the extent of gender equality in its constitution and its laws
There are equal rights to work, to unionize, to strike, to own land, to b
free from discrimination at work, and to be elected to political office. Th
penal code is equal for all. All work for the same task is to be paid equally
Moreover, the government representatives argued that Guinea has carrie
out huge efforts to implement the convention, despite wars and a heavy
burden of foreign debt. It is now drawing up a plan for the country for the
next 10 years, endeavoring to strengthen civil society to benefit women, to
encourage the private sector, to develop a national program for youth an
for population management, and to support programs for village communi-
ties. The government is working on a document to reduce poverty and hold-
ing workshops that will develop a poverty-alleviation initiative. Thi
initiative will include gender studies and attention to women in the informal
sector. Thus, both the delegation and the report present Guinea as a modern
country engaging in planning and fully committed to the principle of gende
equality.
Yet, the report also says, "Both in general terms and within the home,
Guinean women remain in a subordinate position to men who exercise
power in virtually all areas of life. Guinean women live in a society and
culture that is traditionally androcratic and where marriage is often polyga-
mous" (UN CEDAW 2001, 31). With reference to article 5(a), the report
included several customary practices in its definition of violence against
women. It listed: (1) beating, (2) repudiation, (3) levirate, (4) sororate, (5)
early and forced marriage, and (6) sexual mutilation. Thus, it merged estab-
lished kinship practices, FGM/C (female genital mutilation/cutting), and
physical violence. Even beating was described as a traditional right for a
man, although reprehensible. The report continues: "The persistence of cul-
tural traditions and customary law perpetuates certain prejudices which
sanction violence against women. On the other hand, there is no sex-based
discrimination in the law and most acts of violence are subject to legal penal-
ties" (UN CEDAW 2001, 32). Violence is attributed to customary practices,

106.51.8.58 on Mon, 08 Jul 2024 05:49:59 +00:00
while law opposes it. The government and NGOs have carried out public
awareness campaigns about violence against women, including "the eradica-
tion of traditional practices that are harmful to mothers and children, to
control of sexually-transmitted diseases and AIDS and to the elimination
of the practice of forced and early marriage." But the report acknowledges
that various forms of violence against women, including the levirate and
female excision, are still widely practiced, particularly in rural areas. Al-
though the laws are not discriminatory, in practice the family is patriarchal,
the man controls the domicile, and children by the age of seven are under
his control. Women are assigned a narrow range of tasks, and their lives
seem governed by fears that they will become pregnant before marriage. For
example, with reference to education, the report says:
There are many parents who still believe that education is not indis-
pensable, or even necessary, for girls. They bring their daughters up to
find a "good husband" before it is too late. Their priority is to prepare
their daughters to become ideal, or model wives, by which they mean
submissive wives. For them, it would be unwise to allow girls to go to
school with boys. Even if a girl managed to avoid all the "traps" at
school and were to graduate and join the Civil Service, she would,
according to this thesis, have too much freedom. This would undermine
the authority of her husband, who, it should be remembered, is seen
as the bridge between a bride and God. (UN CEDAW 2001, 49)
Although this report portrays the problems for women as rooted in a

traditional culture that will not change, women's levels of health, education,
and employment are strikingly low. The rate of female illiteracy was 85%;
outside the capital city, it was 93-96% (UN CEDAW 2001, 61, 66). Only
11% of students in higher education are women (UN CEDAW 2001, 21).
Although a 1992 study found that the cohort fertility rate was seven children
per woman, only 2-3% use birth control. There is a high rate of infant
mortality and maternal mortality (666 per 100,000 live births) and a low life
expectancy of 53 (UN CEDAW 2001, 4, 21). The median age for women at
marriage is 16. Women do most of the subsistence agricultural work, produc-
ing 80% of all food (UN CEDAW 2001, 22). Thus, the report locates re-
sponsibility for the widespread violence women suffer in an intractable
traditional culture rather than in the govemment's failure to provide
schools, health clinics, and jobs for women. The government offers women
legal rights but not the means for asserting them. The explanation it offers
for this disparity, however, is culture. The report concludes: "Generally
speaking, however, while women in the Republic of Guinea are accorded
the same legal rights as men, these gains are powerfully diluted in their daily
lives by the coexistence of modern law with customs and traditional and
religious practices" (UN CEDAW 2001, 123). This conclusion was followed

106.51.8.58 on Mon, 08 Jul 2024 05:49:59 +00:00
by a long list of all the international conventions that the gove

Guinea has signed and ratified.
The experts praised the delegation for its political will and com
to women's equality, but noted that there were serious gaps in
plishment of that goal. They questioned the low level of educ
health care, the possibility of an Islamic or customary legal system
on different principles from the national law, and the disparity be
progressive laws and the lack of efforts to implement them. They
contradictions between the laws promoting gender equality and tho
power over the domicile, marriage, and children to men. Sever
the importance of more education for women as well as for men (6
ate), and encouraged more work on female genital mutilation, s
spread practice. The tenor of questions was praise for the polit
the delegation but skepticism about the extent of equality on t
and an insistence that the government invest more resources i
especially women's education. Criticisms were framed as concer
clear, however, that the experts were not persuaded by the arg
Guinea had done all it could despite its claims about the intract
of its "traditional culture."
The report was presented by a large delegation of 12 governme
ters, lawyers, doctors, and professors, about evenly divided betwee
women. The men were dressed in dark Western suits, the wome
rate West African gowns. All spoke French to one another as t
in the elegant lounge outside the conference room in New Yor
the national elites participate in this international forum and
modem legal system they juxtapose their urban and educated world
with the international community, to that of the apparently a
unchanging traditional culture of the rural areas, riddled with
culture. Such cultural framing resonates with the colonial past.
it is a framing driven by economic necessity. Guinea describes itse
to pursue democratization based on a liberal development mod
country with vast mineral resources dependent on foreign partner
CEDAW 2001, 6-7). Appearing to promote the human rights o
by ratifying treaties is critical to economic development since it m
nation as modern and suitable for foreign investment. Culture
good excuse for failure. Yet, this analysis fails to consider the w
itself is constituted by the systems of law, government, education
tics within which groups of people live.
In the presentation of the initial report from India in Janu
which I did not observe, experts raised similar concerns about t
effects on women of the persistence of religious laws for family an
life. There are separate personal laws for the religious communities
Hindus, Muslims, Christians, and Parsis, laws that in most case
been reformed for a long time. The committee was concerned

106.51.8.58 on Mon, 08 Jul 2024 05:49:59 +00:00
of the provisions in these personal laws and worried that the principle of
non-state intervention was impeding progress in guaranteeing women's
rights because the government only intervened when religious communities
requested intervention (Press Release WOM/1162 453rd Meeting (PM) 24
January 2000, www.un.org/News/Press/docs/2000/200000124.woml 161.
doc.html, p. 2). Experts noted that ethnic and religious groups tended to
maintain patriarchal traditions and that perpetuating the personal laws of
these ethnic and religious communities was incompatible with women's
rights and a breach of the convention (Press Release WOM/1161, 24 Jan
2000, www.un.org/News/Press/docs/2000/200000124.womll1161.doc.html,
6/18/01, p. 4). One expert commented that the report had not included
customary practices and other factors that produced violence against
women; while another noted that eliminating existing discrimination re-
quired altering social and cultural values often perpetuated by religious and
ethnic communities(PM press release, 24 January 2000, p. 4). The commit-
tee was firm that there needed to be a single, nondiscriminatory system. It
pressed India to adopt a uniform code for all its religious communities and
to eliminate separate personal laws on the grounds that they were discrimi-
natory. Here they juxtaposed a secular modernity to a religiously based and
oppressive set of family laws. The government representative simply ignored
this comment, however. According to the UN press release, in her reply,
the secretary of the Department of Women and Child Development in
India failed to address the issue of separate personal laws for religious and
ethnic communities at all (press release WOM/1171 31 January 2000,
www.un.org/News/Press/docs/2000/200000131.woml 171.doc.html, p. 3).
One of the experts reiterated her concern about waiting for the religious
communities themselves to amend their personal and family laws and
thought that it was important to give them an incentive to seek change.
On the other hand, a member of the committee familiar with such plural
legal regimes told me afterwards that she felt that eliminating separate per-
sonal laws in India was neither necessary nor possible. The rest of the com-
mittee, which thought that there should be a secular uniform legal code,
overruled her. Separate legal codes for religious communities are a form of
cultural particularity that does not fit into the overall framework of
CEDAW. Moreover, at least some if not all of the codes of these religious
communities violate the nondiscrimination provisions of the convention.
In its extensive concluding comments, the committee praised India for
its constitutional guarantee of fundamental human rights and the recogni-
tion of a fundamental right to gender equality and nondiscrimination, as
well as for its affirmative action program, which has reserved 33% of seats
in local government bodies for women (UN CEDAW Report 2000, 9). But
it worried that there had not been steps taken to reform the personal laws
of different ethnic and religious groups in order to conform to the conven-
tion and that the policy of nonintervention perpetuates sexual stereotypes,

106.51.8.58 on Mon, 08 Jul 2024 05:49:59 +00:00
son preference, and discrimination against women (UN CEDAW R

2000, 10). Thus, the committee urged India to adopt a secular unive
in its laws governing the family, a significant cultural break from
practice developed and crystallized under British colonial control. F
the committee expressed concern about the high rate of gender-ba
lence against women, "which takes even more extreme forms be
customary practices, such as dowry, sati and the devadasi system. Discr
tion against women who belong to particular castes or ethnic or r
groups is also manifest in extreme forms of physical and sexual violen
harassment" (UN CEDAW Report 2000, 11). The committee rec
that there is legislation against these practices but encouraged the
ment to implement this legislation.
Thus, both the government spokesperson and the experts attribute
least part of the violence experienced by women to customary practice
to the personal laws of ethnic and religious communities. While app
the equal gender rights provided in national government documen
noting the existence of laws against dowry, discrimination against
and sex-selective abortions, the committee worried about the lack of im
mentation of laws and the inadequate allocation of resources for w
development in the social sector, which they saw as serious impedimen
the realization of women's human rights in India (UN CEDAW Re
2000, 10). Again, this discussion portrays the urban elites as progr
nonculturally defined groups confronting recalcitrant ethnic, re
lower-caste, and rural communities steeped in old cultural practices
personal laws that they will not willingly abandon. It advocates a
society of gender equality and views practices detrimental to women a
cies of ancient customs maintained by the rural poor and religious
ties. Of course, this universalizing approach is structured by the conve
itself and the committee's mandate to apply it to all countries equally.
who ratify it take on the obligation to conform, regardless of their sp
cultural attributes, and it is this mission that the committee adopt
International standards are important in India. The country is
active and articulate participant in all the human rights meetings
attended. In an article on a new domestic violence bill in a major E
language Indian daily, the Times of India, the author notes that the
Accord of 1993 (United Nations 1993) and the Beijing Platform of
of 1995 (United Nations 1995) have acknowledged the existence of
tic violence as a problem. Moreover, the article continues that the inte
tion of the state to protect women against violence, especially in the f
has been strongly recommended by the UN committee on CEDAW
ary 2002, 7). This article, in the mainstream press, indicates that i
tional documents are recognized and seen as important in defining pro
and legitimating, if not directing, their solution. Compliance with int
tional obligations appears to be politically desirable, while the fa

106.51.8.58 on Mon, 08 Jul 2024 05:49:59 +00:00
achieve international standards is blamed on the culture of poor, marginal,

and rural peoples.
However, the issue of separate personal laws is a highly charged politi-
cal one in India, particularly given the recent resurgence of Hindu national-
ism and Hindu-Muslim tension and violence (Singh 1994; Hossain 1994).
Flavia Agnes, an activist from Bombay, argues that the demand for replacing
separate personal laws with a uniform code has become part of communal
politics in India (1996, 105-11). When India signed (but did not ratify)
CEDAW in 1980, it entered a declaration saying, with regard to articles
5(a) and 16 (1), "the Government of the Republic of India declares that it
shall abide by and ensure these provisions in conformity with its policy of
non-interference in the personal affairs of any Community without its initia-
tive and consent" (Byrnes and Connors 1996, 52-53). Yet, this reservation
was removed when India ratified CEDAW in 1993 (Coomaraswamy 1994,
53). The Constitution of India includes provisions for creating a secular
family law. Women's groups have long pushed this idea, but without receiv-
ing much government support (Singh 1994, 378-80).
During the colonial period, the British left the regulation of family
relationships to religious heads or local caste or community bodies, so that
at the time of independence, there was a great diversity of cultural practices
(Agnes 1996, 106). With the communal conflict in India at the time of
partition, Muslim leaders came to see personal laws as a symbol of their
cultural identity and resisted state interference in personal laws. When a
divorced Muslim woman, Shah Bano, received maintenance payments from
the Supreme Court, the Muslim minority community protested, and in 1986
India passed legislation that excluded Muslim women from the protections
of criminal statutes providing for maintenance of divorced women. Cooma-
raswamy notes that Hindu fundamentalists used this case to promote the
idea of a uniform law that would be Hindu rather than Islamic (Coomaras-
wamy 1994, 54). Meanwhile, Agnes says that there was little publicity for
the way the Hindu community moved out of the realm of secular and com-
mon law to allow men to maintain male privileges in succession, such as
the 1976 Special Marriage Act. There is now a strong demand for a uniform
code, particularly by Hindu communal forces that see this as an important
part of its antiminority propaganda. They focus on the inadequacies of Mus-
lim law, despite the clear gender biases of Hindu law that lead to murders,
suicide, and female feticide in the Hindu community. "A myth created by
the media is that the 'enlightened' Hindus are governed by an ideal gender-
just law and this law now needs to be extended to Muslims in order to
liberate Muslim women" (Agnes 1996, 107). Agnes concludes that reforms
are necessary, but that it is important to avoid placing fuel in the hands of
antiminority forces (1996, 111).
In this situation, the CEDAW committee faced not the barrier of a
"tenacious ancient culture" but the colonial ossification of marriage laws

106.51.8.58 on Mon, 08 Jul 2024 05:49:59 +00:00
and the very contemporary politicization of culture. The conventio

quirement of gender equality fed into preexisting communal host
Women's subordinate status has been ethnicized: redefined as fundam
to the maintenance of an ethnic identity. This is not a process root
the past but one created by contemporary political struggles.
But culture is not always perceived as a barrier by governments, NG
and CEDAW experts. Sometimes it provides the basis for innovati
forms. For example, Egypt developed a new divorce law for women mod
on an older rural practice. Egypt, which ratified CEDAW with sign
reservations, presented its report in January 2001. Questions focused on
challenges for human rights of the patriarchal culture of the count
the Egyptian system of religious law, shari'a, which is premised on ineq
for women. The representative from Egypt announced proudly that in
ary 2000 a new family law was passed that enables women to divorc
husbands unilaterally. She said that this law had to be justified in te
"our own culture and religion." Passage of the new law was possible b
unilateral divorce by women was a practice already followed in rura
and because proponents were able to find some support for gender e
in religious texts. This enabled them to counter the arguments of
particularly Islamic law professors in religious universities-who c
that allowing women to divorce was opposed to Islam. Instead, they c
that there is gender equality in Islam but that patriarchal culture has t
formed its everyday practices. The National Committee for Women
of whose members had attended the Beijing Conference in 1995, pro
the new law, demonstrating the powerful effects of transnational h
rights ideas and the conferences that develop them. Women's and h
rights advocates pushed for the law, although the version passed wa
tered down one which allowed a woman to divorce without proof
refunded her dower to the husband and forfeited all financial righ
claims from the marriage (Hajjar 2001, 41).
This example shows how the reforms promoted by transnational eli
do not necessarily lead to global cultural homogeneity. They can s
new cultural arrangements and adaptations framed in local terms. Howe
understanding culture as fixed, homogeneous, and as a barrier to chang
the transnational human rights system and government leaders tend to
impedes recognizing these local cultural adaptations as well as the e
to which cultural practices are continually contested (see, e.g., Green
Comaroff and Comaroff 1991, 1997). This is the difference between ima
ing culture as a rock or as a river.
These struggles over culture within women's human rights are a re
tion of postcolonial modernity: the delicate dance between asserting cul
distinctiveness, striving to reap some of the wealth of colonial cou
participating in international human rights forums, and working to im
the status of women and to promote the rule of law and democratic go

106.51.8.58 on Mon, 08 Jul 2024 05:49:59 +00:00
nance by signing treaties and making good faith efforts to make changes
while attributing failures to the traditional culture of rural, backward people
and ethnic minorities. The postcolonial modern is continuous with the colo-
nial modem, with the same complicated stance about difference and mem-
bership. Postcolonial elites who come to these forums face critique from the
affluent North for their failures to become a modern nation. They turn the
blame on others within their countries, others now defined by class, eth-
nicity, and rural residence rather than colonial status or race. The rural
poor and minorities are now the groups saddled with custom, tradition, and
unthinking compliance according to both postcolonial elites and the trans-
national elites of the UN system. Gender equality is presented as a universal
modern notion, not as a cultural practice of some countries of the North
and some elites of the South. Reform and capitalism merge uneasily in a
new, and at the same time, old, imperial partnership.
CREATING CULTURE THROUGH DOCUMENTS
Unlike the CEDAW process, much of the rest of the UN system focu
on producing policy documents that have no legal force. Documen
cussing violence against women take several forms. The High Comm
on Human Rights has issued a resolution condemning violence a
women and another condemning trafficking for several years. The B
Conference in 1995 generated the widely regarded Platform for Acti
the five-year review, Beijing Plus Five, the so-called outcome docu
The Commission on the Status of Women also produces every year
consensual policy statements, called agreed conclusions, as well as a n
of resolutions. These documents specify problems and identify solu
They are produced through a protracted process of consensual decision m
ing (see Riles 1999). As I watched the efforts to produce a consensua
come document at the Beijing Plus Five conference in New York in
2000, I was surprised at the effort expended on producing a docume
on its precise wording. I wondered why the document itself mattere
how it was used after the conference. There were large debates about wh
phrases to leave in and which to exclude that clearly had political un
tones. Listing sexual orientation as one of the ways women's roles v
around the world, for example, provoked an enormous controversy
served similar processes in other UN meetings in New York and G
that developed declarations or outcome documents dealing with vio
against women. For example, groups of member states can present r
tions to the UN Human Rights Commission, which are accepted by c
sus or by vote. As I watched a group of government representatives
states as such as the United States, Canada, Japan, Russia, and the Ne
lands formulate a proposal condemning violence against women and s

106.51.8.58 on Mon, 08 Jul 2024 05:49:59 +00:00
gling over every phrase, I wondered why the particular phrases w

important. For example, the United States resisted including a sen
urging governments to ratify the Women's Convention instead of u
them to consider ratifying CEDAW, in all likelihood because it has n
done so.
Do these documents matter? Or more precisely, how do they m
Is the wording important? Only the conventions become law, and th
so only when ratified. As we have seen, the process of forcing a st
comply even with treaties it has ratified is largely indirect and pers
Documents such as the outcome document from Beijing Plus Five an
Platform for Action of the 1995 Beijing Conference are of an entirely d
ent character from the conventions. They represent an effort to ac
global consensus, but they are not legally binding. The documents articu
desirable behavior and aspirations for women, not laws that must be ob
Yet, these platforms, declarations, and resolutions do matter.
CEDAW and its hearings, they exert moral pressure on recalcitrant
tries. These policy statements have the legitimacy of international
dures. As they define problems and frame social issues in the langu
human rights and freedom from discrimination and gender equality
provide a language of argument that resonates with the values of a
global modernity. Ratifying covenants, submitting periodic reports, an
tending UN meetings and conventions offer the elites of many natio
portunities to circulate in the global space of modernity. Many of these
already participated in global modern spaces as students. Circulating in
domain opens doors for trade, investment, and foreign aid, while those
refuse to participate can face economic and political penalties. Adhe
to international standards has both symbolic and material benefits. F
ample, at a March 2002 meeting of the National Assembly of Nige
put in motion a framework to repeal all laws that inhibit the protec
fundamental human rights, the chairman of the occasion, Chief P
Ume, said that the subject of human rights has become so import
over the world that "it is now the benchmark for the assessment o
governance and good governments. As well as being the pre-qualifi
and pre-condition for the grant of aids by international donor age
(from article in Punch, 4 March 2002, by Clara Nwachukwu Owerri,
lated by womensrightswatch-nigeria//kabissa.org on March 14, 2002
eign aid and tourism are often connected to maintaining a good repu
as well (see Foot 2000). There is an appeal to global modernity, driv
economic as well as sociocultural forces, which is reminiscent of the
of the concept of civilization during the era of empire. In the postc
era, the glamour of the modern is still juxtaposed to backward othe
now it includes those who are "developing" but still burdened by "tradit
harmful practices." Human rights are of course a fundamental part
global modern. The fight against "culture" is a deeply cultural one.

106.51.8.58 on Mon, 08 Jul 2024 05:49:59 +00:00
The Role of NGOs
NGOs play a critical role in making the documents known, and the
documents themselves represent an important resource for them. They pres-
sure governments and join with allies in other countries to pressure thei
governments. As Keck and Sikkink note, they may use a boomerang tactic
in which the NGO from one country links with the NGO of another, mor
powerful one, which then puts pressure on its government to push the les
powerful government to change (1998). Government representatives at UN
meetings often refer to the importance of "civil society" and its essentia
role in their activities. They are obviously pointing to practices of exposure,
pressure, and monitoring. It is notable that the NGOs pay a great deal of
attention to the documents and are deeply engaged in trying to influenc
what they say.
But, the relationship is not as mutually supportive and positive as this
analysis suggests. The CEDAW committee is far more supportive of NGO
input than the government-based UN bodies such as the Commission on
the Status of Women (CSW) or the High Commission on Human Rights
(HCHR). Despite talk about the importance of civil society, NGO access
to governmental decision makers in UN meetings such as CSW, HCHR,
and even Beijing Plus Five is extremely limited. Important decisions are
often made in closed-door negotiating sessions as governments strive to
hammer out a consensus on a document. NGO representatives may wait
outside the door, hoping to talk to their national representatives, but they
are not allowed to participate. At the resolution drafting sessions of th
Human Rights Commission in Geneva, some chairs would allow NGOs to
be present but not to speak. Even those who allowed them to submit lan-
guage in writing paid little attention to their suggestions. For example, in
a session in 2001 drafting a resolution about trafficking that I observed, a
NGO suggested developing some mechanism for dealing with the demand
rather than only the supply of trafficked women, something such as retrain-
ing male customers in wealthy countries. She was permitted to submit thi
suggestion in writing only, not orally. Governmental representatives from
Japan and Europe quickly quashed the suggestion as too vague.
NGOs are also allowed to speak from the floor at CSW and HCHR
meetings, but are given very short time periods and are required to present
their statements in written form in advance. The attention of the govern
ment delegates is typically less during NGO interventions, with more talking
and walking around, than during other deliberations. Government represen-
tatives are often uncomfortable about NGO statements, worried that they
will try to embarrass them and expose problems. Some NGOs say that gov-
ernments fear that they will be too radical. Many governments wish to re
strict NGO speaking time and to know in advance what they are going to
say. Thus, opportunities for NGO input into the discussion and document

106.51.8.58 on Mon, 08 Jul 2024 05:49:59 +00:00
production process are highly circumscribed and informal. NGO repres

tives typically describe their task as lobbying their government repre
tives and often see this as their central mission. Some governmen
as that of the United States, hold regular formal briefings for NGOs a
meetings such as CSW or Beijing Plus Five to inform them about
delegation's activities. These are typically settings where NGOs are to l
rather than give feedback.
In contrast, many of the members of the CEDAW committee are q
positive toward NGOs and make an effort to listen to them informally
to come to the NGO briefing, which was attended by at least 18 of
members at the 2002 meeting. Those experts who have NGO backg
are particularly receptive to NGO representatives. I often heard t
perts pose questions suggested by NGOs to the government representa
In this sense, the NGO presence at CEDAW meetings is very imp
and successful.
But, in order to gain access to the space where any of these UN
ings are held and government representatives are available for lobbyin
NGO must receive consultative status from the UN. While this was
tively easy process in the past, there has recently been a great inc
applications and a tendency to scrutinize applicants far more close
order to acquire consultative status, an NGO must apply through a com
procedure and describe in detail the nature of the organization, its mi
its membership, and its financial status. The decision can take over a y
As the number of NGOs has expanded, the pressure on the UN to
modate them has also increased, as has the difficulty of determining w
groups should earn this status. Without consultative status, an NGO
participate in these meetings. The UN recognizes that the proces
achieving consultative status is difficult and may deter small organ
in developing countries. It has made efforts to make the process more
7. The website for the Conference of NGOs in Consultative Status with th

Nations Economic and Social Council (CONGO) (www.congo.org/ngopart/constat.h
scribes the process of gaining consultative status as follows: "The basis for the co
relationship between the United Nations and non-governmental organizations was
most recently following an extensive intergovernmental review that culminated i
Resolution 1996/31. This relationship is the principal means through which ECO
ceives input from NGOs into its deliberations at public meetings and in its subsidiar
as well as in UN international conferences and their preparatory bodies. Each year th
imately 2,000 NGOs now holding consultative status receive the provisional agend
SOC. They have certain privileges to place items on the agenda of ECOSOC and its
bodies; they may attend meetings, where they may submit written statements and
presentations to governments."
8. The criteria for consultative status are: (1) the applying organization's activitie
be relevant to the work of ECOSOC;(2) the NGO must have a democratic decision
mechanism; (3) the NGO must have been in existence (officially registered) for at
years in order to apply; (4) The major portion of the organization's funds should b
from contributions from national affiliates, individual members, or other nongover
components (www.un.org/esa/coordination/ngo, March 2002).

106.51.8.58 on Mon, 08 Jul 2024 05:49:59 +00:00
sible, but it is still difficult, particularly for NGOs in developing countries

for whom faxing and communication difficulties loom large.
Moreover, NGOs are not of equal status. There are three categories of
membership: general, special, and roster. The number of representatives who
may attend and the opportunities for speaking depend on the status of the
NGO. Most are in special consultative status although some of the older
and larger ones have the more privileged status of general consultative status
and small newcomers are often given roster status. According to the UN
website (www.un.org/esa/coordination/ngo) listing the NGOs in consulta-
tive status, as of November 2001 there were approximately 2,000 such, of
which about 130 were in general status, about 1,000 in special, and 900 in
roster. Examples of NGOs in general consultative status are Soroptomist
International, Rotary International, and Zonta International. Organizations
in special consultative status include European Women's Lobby, Interna-
tional Federation of University Women, Italian Centre of Solidarity, and
the Salvation Army.The European Union of Women and International As-
sociation for Counseling are both roster organizations. Such organizations
are less likely to be able to afford to send a staff member to the conference,
although many send volunteers. Many of the NGOs that are able to send
representatives regularly are large, international, membership-based organi-
zations, such as those listed above, or religiously affiliated, usually Protestant
or Catholic groups.
Many of these NGOs are based on large established religions or are
funded by transnational philanthropy or government grants. Although there
are some radical NGOs, such as the Women's International League for Peace
and Freedom, most are mainstream organizations such as professional busi-
nesswomen's associations or the Girl Scouts. The left, progressive, social
activist NGO is the minority. These groups vary significantly in their politi-
cal views of social change and how agents of change should be empowered.
The more conservative groups seem content to give vulnerable groups such
as battered women a voice, while the more radical ones want to focus atten-
tion on economic and structural inequalities.
It is obviously expensive and difficult for South NGO members to at-
tend UN meetings in Europe or the United States. Many who do come are
working in projects with international donors, but this does not guarantee
that they will be able to participate on a regular basis. Yet only those NGO
representatives who go year after year develop the expertise in personnel,
lobbying, and the texts of documents essential to making an impact on the
document-drafting process. NGO representatives who know the language
used in past documents and how to find it are much more influential in
lobbying than those who lack this expertise since there is usually a prefer-
ence for using "agreed-upon" language from some other document rather
than forging new wording. Consequently, the leading NGO representatives
tend to be experienced heads of major U.S., Canadian, and European organi-

106.51.8.58 on Mon, 08 Jul 2024 05:49:59 +00:00
zations. I heard little complaint about this situation by developing cou

NGO representatives, however. Instead, there is generally a sense of c
derie and support as well as openness to learning from one another
theless, the hurdles for NGO participation from poorer parts of t
are quite substantial, and it seems that many who come are sent b
receiving substantial international funding, usually from Europe o
America.
Despite the celebrated interdependence of civil society and the interna-
tional system of law, the relationship between states and NGOs is fraught
with tension and ambivalence. While some governments welcome NGO
participation, others resist. Some do not want NGOs to be involved in the
process at all and insist that the UN is a body of governments. Some govern-
ments of the South are uncomfortable about criticism and embarrassment
from NGOs. They fear public exposure and will be angry at the NGOs when
they get back home. One NGO representative from Africa said that some
governments even threaten treason trials against outspoken NGO represen-
tatives, and many are unhappy about NGO criticisms. The US also resists
criticisms by NGOs. My observations of briefings by the U.S. delegation to
the NGOs at the CSW in 2001 and 2002 as well as at the Beijing Plus Five
Conference, for example, show that they focus on providing information
about U.S. government activities rather than looking for NGO input or
criticism. At a March 2002 U.S. briefing to NGOs, a representative from
the Women's International League for Peace and Freedom pointed out that
discussions of gender and poverty need to take into account the way U.S.
economic polices are producing global poverty. The U.S. team seemed an-
noyed by this comment, and one member accused the NGO representative
of being unpatriotic.
While there is general recognition that NGOs perform a valuable ser-
vice in identifying issues, doing research to support them, and advocating for
particular causes, an important task of many NGOs is exposing government
failures. This makes many governments uneasy, particularly since the task
of state representatives to these global forums is to portray their countries
in the most favorable light. The CSW begins with hours of speeches in
which each country emphasizes its accomplishments in the field of women's
issues. It is not surprising that the CEDAW process is far more open to
NGO participation than the commissions and world conferences that are
made up of government delegations. The system of shadow reports and NGO
briefings during CEDAW sessions has institutionalized NGO input into the
process, yet even here, aside from the separate briefing meeting that lasts
about an hour and a half, NGOs have no formal space to speak, and only
some experts are really interested in NGO input.
As in so many other areas of UN activity, this relationship is a devel-
oping and changing one. NGOs are gradually gaining more acceptance and
a stronger voice, but still face considerable resistance to their participation

106.51.8.58 on Mon, 08 Jul 2024 05:49:59 +00:00
among some governments. And, as in many other areas of international

activity, the sharp disparities in resources between North and South radi-
cally limit the ability of some NGOs to participate in the process. It is com-
mon for North foundations and governments to fund NGOs from the South.
But issues of importance to the North tend to take precedence, and these
issues change. Trafficking in women is a new issue, for example, which re-
sponds to North concerns as well as to South agendas. Human rights docu-
ments create the legal categories and legal norms for controlling violence
against women, but the dissemination of these norms and categories depends
on NGOs seizing this language and using it to generate public support or
governmental discomfort. This is a fragile and haphazard process, very vul-
nerable to existing inequalities among nations and the availability of donors.
CONCLUSIONS
This analysis indicates that the critical feature of the CEDAW

is its cultural and educational role:its capacity to coalesce and ex
particular cultural understanding of gender. Like more conventio
processes, its significance lies in its capacity to shape cultural underst
and to articulate and expand a vision of rights (see Ewick and Silb
Merry 2000). This is a form of global legality that depends deep
texts, not for enforcement but for the production of cultural meanin
ciated with modernity and the international. It is ultimately depen
generating political pressure on states from the CEDAW committ
sympathetic leaders within a country, and from international and
nongovernmental organizations. There are clearly ways to slip thro
grid of surveillance, including the U.S. strategy of failing to ratify C
at all.
This perspective on CEDAW underscores its culturally constit
role, a phenomenon that others have argued is characteristic of law
nation states (see Sarat and Kearns 1993; Ewick and Silbey 1998; M
1990). Indeed, international human rights law is like nation state la
focus on the cultural production of norms. In both forms of lega
operates more in the routines of everyday life than in moments of tr
Compliance depends on the extent to which legal concepts and nor
embedded in consciousness and cultural practice. Legal documents
situations name problems, specify solutions, and articulate goals. B
law and international human rights treaty law influence cultural m
and practices beyond the reach of their sanctions. This examinat
CEDAW hearings shows the culturally constitutive nature of law
global materialization.
In the human rights process governing violence against women
emerges from time to time a conception of culture as homogeneou

106.51.8.58 on Mon, 08 Jul 2024 05:49:59 +00:00
"primitive," and resistant to change. Such a concept of culture often s

to marginalize as "other" those to whom it is attributed. Culture i
sumed to be a set of beliefs that determines behavior. The fact that t
legal process, as with all legal processes, is engaged in cultural transfo
remains unspoken. A theory of culture as contested, historically p
and continually defined and redefined in a variety of settings (see
Black and Hirsch 1994; Lazarus-Black 1994) rarely appears in coun
ports or in CEDAW hearings. With a more complex understanding
ture and cultural transformation, however, it would be possible to
human rights monitoring process as a gradual cultural transformation
than as law without sanctions confronting intractable cultural diff
There is a discursive world created in these forums that juxtapose
ture to the law-culture is out there, in the hinterland, with the mino
while here there is law, with culture hiding from view, buried in the e
practices of modernity. This opposition between culture and law is
in the situation, however. In terms of everyday practices, what is bei
duced in these legal settings, in the midst of modernity, is culture-a
that relegates culture to the margins. But it is possible to locate b
culture of the center-the human rights system-and the culture
margins-the village-on the same plane. The village and the UN
the same terrain, although clearly unequal in power. Cultural pro
takes place in each of these locations, as preexisting pieces are reconst
and rearranged.
Indeed, this examination of CEDAW and other human rights pr
makes clear that these are powerful sites of cultural production.
taking place is the generation of documents by a large body of so
states through a consensual process that confers international legitim
the documents. These processes follow a fairly consistent set of pr
and are organized around a key set of concepts such as political will, h
rights, and capacity building. The documents themselves name pr
specify solutions, articulate areas of global consensus, and offer mora
of the good society, replicating language developed in one setting
next. That this vision is articulated in law-like documents produced th
quasi-legislative processes increases its creative cultural possibilitie
REFERENCES
Afsharipour, Afra. 1999. Empowering Ourselves: The Role of Women's NG

Enforcement of the Women's Convention. Columbia Law Review 99:129
Agnes, Flavia. 1996. The Domestic Applications of International Human Righ
Relevant to Women's Human Rights: Strategies of Law Reform in the Ind
text. In Byrnes, Connors, and Bik 1996, 101-13.
Alston, Philip, ed. 1992. The United Nations and Human Rights: A Critical Appr
ford, England: Clarendon Press.

106.51.8.58 on Mon, 08 Jul 2024 05:49:59 +00:00
An-Na'im, Abdullahi Ahmed. 1992. Human Rights in Cross-Cultural Perspectives: A

Quest for Consensus. Philadelphia: University of Pennsylvania Press.
Bayefsky, Anne F. 2001. The UN Human Rights Treaty System: Universality at the Cross-
roads. Ardsley, N.Y.: Transnational Publishers.
Bernard, Desiree. 1996. The Work of the Committee on the Elimination of Discrimina-
tion against Women: Its Focus on Nationality, Custom, Culture and the Rights of
the Girl-Child. In Byrnes, Connors, and Bik 1996, 72-85.
Bunch, Charlotte. 1990. Women's Rights as Human Rights: Toward a Re-Vision of Hu-
man Rights. Human Rights Quarterly 12:489-98.
.1997. The Intolerable Status Quo: Violence against Women and Girls. The Progress
of Nations 1997. New York: UNICEF.
Byrnes, Andrew, and Jane Connors. 1996. Enforcing the Human Rights of Women: A
Complaints Procedure for the Women's Convention-Draft Optional Protocol to the
Convention on the Elimination of All Forms of Discrimination against Women.
Brooklyn Journal of International Law 21:679.
Byrnes, Andrew, Jane Connors, and Lum Bik, eds. 1996. Advancing the Human Rights of
Women: Using International Human Rights Standards in Domestic Litigation. London:
Commonwealth Secretariat.
Charlesworth, Hilary. 1994. What Are "Women's International Human Rights"? In Cook
1994d, 58-84.
Collier, Jane Fishbume. 1997. From Duty to Desire: Remaking Families in a Spanish Village.
Princeton, N.J.: Princeton University Press.
Comaroff, Jean, and John L. Comaroff. 1991. Of Revelation and Revolution. Vol. 1, Chris-
tianity, Colonialism, and Consciousness in South Africa. Chicago: University of Chi-
cago Press.
Comaroff, John L., and Jean Comaroff. 1997. Of Revelation and Revolution. Vol. 2, The Dialec-
tics of Modernity on a South African Frontier. Chicago: University of Chicago Press.
Cook, Rebecca J. 1990. Reservations to the Convention on the Elimination of All Forms
of Discrimination against Women. Virginia Journal of International Law 30:643.
. 1994a. State Accountability under the Convention on the Elimination of All
Forms of Discrimination against Women. In Cook 1994d, 228-57.
. 1994b. State Responsibility for Violations of Women's Human Rights. Harvard
Human Rights Journal 7:125-75.
. 1994c. Women's International Human Rights Law: The Way Forward. In Cook
1994d, 3-36.
Cook, Rebecca J., ed. 1994d. Human Rights of Women: National and International Perspec-
tives. Philadelphia: University of Pennsylvania Press.
Coomaraswamy, Radhika. 1994. To Bellow Like a Cow: Women, Ethnicity, and the Dis-
course of Rights. In Cook 1994d, 39-57.
DAW 2000. See United Nations. Department of Economic and Financial Affairs. Divi-
sion for the Advancement of Women.
Egyptian Non-Governmental Organizations Coalition. 2000. CEDAW: The Shadow Re-
port. Egyptian NGO Coalition. Photocopied booklet.
Ewick, Patricia, and Susan Silbey. 1998. The Common Place of Law. Chicago: University
of Chicago Press.
Fanon, Frantz. 1963. Wretched of the Earth. New York: Grove.
Fitzpatrick, Joan. 1994. The Use of International Human Rights Norms to Combat Vio-
lence against Women. In Cook 1994d, 532-71.
Foot, Rosemary. 2000. Rights beyond Borders: The Global Community and the Struggle over
Human Rights in China. New York: Oxford University Press.
Green, December. 1999. Gender Violence in Africa: African Women's Responses. New York:
St. Martin's Press.

106.51.8.58 on Mon, 08 Jul 2024 05:49:59 +00:00
Hajjar, Lisa. 2001. Domestic Violence and Shari'a: A Comparative Study of Mus
eties in the Middle East, Africa and Asia. (Manuscript on file with author
Hossain, Sara. 1994. Equality in the Home: Women's Rights and Personal Laws
Asia. In Cook 1994d, 465-95.
Ignatieff, Michael. 2001. Human Rights as Politics and Idolatry. Princeton, N.J.: Princeton
University Press.
. 2002. American Exceptionalism and Human Rights. (Manuscript on file with
author.)
Jacobson, Roberta. 1992. The Committee on the Elimination of Discrimination against
Women. In Alston 1992, 444-72.
Keck, Margaret E., and Kathryn Sikkink. 1998. Activists beyond Borders: Advocacy Net-
works in International Politics. Ithaca, N.Y.: Cornell University Press.
Lazarus-Black, Mindie. 1994. Legitimate Acts and Illegal Encounters: Law and Society in
Antigua and Barbuda. Washington, D.C.: Smithsonian Institution Press.
Lazarus-Black, Mindie, and Susan Hirsch, eds. 1994. Contested States: Law, Hegemony,
and Resistance. New York: Routledge.
Merry, Sally Engle. 1990. Getting Justice and Getting Even. Chicago: University of Chicago
Press.
. 2000. Colonizing Hawai'i: The Cultural Power of Law. Princeton, N.J.: Princeton
University Press.
. 2001a. Changing Rights, Changing Culture. In Culture and Rights, ed. Jane
Cowan, Marie-Benedicte Dembour, and Richard Wilson. New York: Cambridge
University Press.
. 2001b. Rights, Religion, and Community: Approaches to Violence against
Women in the Context of Globalization. Law and Society Review 35:39-88.
Razack, Sherene. H. 1998. Looking White People in the Eye: Gender, Race, and Culture in
Courtrooms and Classrooms. Toronto: University of Toronto Press.
Reanda, Laura. 1992. The Commission on the Status of Women. In Alston 1992, 265-
304.
Resnik, Judith. 2001. Categorical Federalism: Jurisdiction, Gender, and the Globe. Yale
Law Journal 111:619-80.
Riles, Annelise. 1999. Infinity within the Brackets. American Ethnologist 25:1-21.
Sarat, Austin, and Thomas Keams, eds. 1993. Law and Everyday Life. Ann Arbor: Univer-
sity of Michigan Press.
Schneider, Elizabeth. 2000. Battered Women and Feminist Lawmaking. New Haven, Conn.:
Yale University Press.
Schoepp-Schilling, Hanna Beate. 2000. CEDAW: A Key Instrument for Promoting Hu-
man Rights of Women. Talk delivered in St. Petersburg, Russia, 13 November.
(Manuscript on file with author.)
Schuler, Margaret, ed. 1992. Freedom from Violence: Women's Strategies from around the
World. New York: UNIFEM. Women Law and Development OEF International.
Singh, Kirti. 1994. Obstacles to Women's Rights in India. In Cook 1994d, 375-96.
Sinha, Anita. 2001. Domestic Violence and U.S. Asylum Law: Eliminating the "Culture
Hook" for Claims Involving Gender-Related Persecution. New York University Law
Review 76:1562-98.
Ulrich, Jennifer L. 2000. Confronting Gender-Based Violence with International Instru-
ments: Is a Solution to the Pandemic within Reach? Indiana Journal of Global Legal
Studies 7:629-54.
United Nations. 1993. The Vienna Declaration and Platform for Action.
United Nations. 1995. Beijing Declaration and Platform for Action: Platform 3. The IV
World Conference on Women, 1995-Beijing, China: Official Documents. Available at
gopher://gopher.undp.org: 70/00/uncofns/women/off/platform.3.25 October 1995.

106.51.8.58 on Mon, 08 Jul 2024 05:49:59 +00:00
United Nations. Committee on the Discrimination against Women [CEDAW]. 2000.

Fifty-fifth Session. General Assembly. Official Records. Supplement 38. Report of the
Committee on the Elimination of Discrimination against Women: Twenty-second Session
and Twenty-third Session. A/55/38.
[CEDAW]. 2001. Initial Reports of States Parties: Guinea. Consideration of Re-
ports Submitted by States Parties under Article 18 of the Convention on the Elimi-
nation of all Forms of Discrimination against Women. United Nations CEDAW/
C/GIN/1.
United Nations. Department of Economic and Financial Affairs. Division for the Ad-
vancement of Women [DAW]. 2000. Assessing the Status of Women: A Guide to
Reporting under the Convention on the Elimination of All Forms of Discrimination against
Women. New York: United Nations.
United Nations. Economic and Social Commission for Asia and the Pacific. 2000. Using
CEDAW at the Grass Roots: Convention on the Elimination of All Forms of Dis-
crimination against Women in the Pacific. UN publication E.01.11.F9. New York:
United Nations.
United Nations. General Assembly. 1994. Declaration on Violence against Women. GA
resolution 48/104. UN document no. A/48/49.
United Nations. Secretary General. 2001. Report of the Secretary General: Status of Submis-
sion of Reports by States Parties under Article 18 of the Convention. CEDAW/C/2001/
1/2.
Volpp, Leti. 2000. Blaming Culture for Bad Behavior. Yale Journal of Law and Humanities
12:89-116.
Wilson, Richard A. 1996. Introduction: Human Rights, Culture and Context. In Human
Rights, Culture and Context: Anthropological Perspectives, ed. Richard A. Wilson. Lon-
don: Pluto Press.

106.51.8.58 on Mon, 08 Jul 2024 05:49:59 +00:00

Constructing A Global Law-Violence Against Women and The Human Rights System

Uploaded by

Copyright:

Available Formats

Constructing A Global Law-Violence Against Women and The Human Rights System

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Constructing A Global Law-Violence Against Women and The Human Rights System

Uploaded by

Copyright:

Available Formats

Constructing a Global Law-Violence against Women and the Human Rights System

Author(s): Sally Engle Merry

Stable URL: https://www.jstor.org/stable/1215792

This content downloaded from

This ethnographic analysis of one of the core human rights conventions

Sally Engle Merry is professor of anthropology, Wellesley College, Wellesley, Massachu-

? 2003 American Bar Foundation.

This content downloaded from

One of the major ways the international human rights system e

This content downloaded from

CEDAW is law without sanctions. But a closer examination of the way

2. This process is analogous to the constant renegotiation of the boundaries of federal,

This content downloaded from

sion of capitalism, and the growing inequality between rich and po

This content downloaded from

reject Islam. Similarly, some conservative Christian groups in the United

This content downloaded from

convention. This universalizing approach is structured by the conv

CULTURE AS AN OBSTACLE IN HUMAN RIGHTS

When government representatives, committee members,

This content downloaded from

This content downloaded from

I have been doing ethnographic research on the strategies to dim

CREATING CULTURE IN THE CEDAW PROCESS

The CEDAW Monitoring Process

CEDAW is one of six UN conventions that has been widely ratified

This content downloaded from

This content downloaded from

although this information comes from e-mail listserves rather than

The CEDAW convention incorporates features of the Universal Decla-

This content downloaded from

Despite the inadequacies of a nondiscrimination framework, this is the

the existence of stereotyped conceptions of women, owing to socio-

This content downloaded from

In 2001, one expert observed to me that she found it striking tha

This content downloaded from

This content downloaded from

mative general declarations and interpretive statements, and 12 m

The Committee Hearings

The dialogue between a country and the committee occurs durin

This content downloaded from

foreign service or women's ministries. This adds up to 22: One committee

There are sometimes previous connections between

This content downloaded from

originally restricted to meeting once a year for two weeks. In 1

For subsequent reports, a subcommittee consisting of a representative

This content downloaded from

This content downloaded from

aided in training NGO representatives and regularly produced shad

There are a variety of ways for countries to escape scrutiny. One is to

This content downloaded from

Although the NGO community is present at CEDAW hearings to help

Country Reports and Conversations about Culture

How is culture discussed in the CEDAW process? As we have seen,

This content downloaded from

This content downloaded from

Although this report portrays the problems for women as rooted in a

This content downloaded from

by a long list of all the international conventions that the gove