Feminist approach in human rights: An appraisal

Though all feminist theories focus on gender, experiences of women and liberation of women, feminists differ in their strategies to achieve this goal. Feminism can broadly be divided into two categories- sameness liberal feminism   & difference liberal feminism. Central theme of liberal feminism is liberal individualism upon which the international human rights law is based.
This write up will show how liberal approach is best one to ameliorate the position of women while engaging with international human rights law. For this purpose, this piece of writing has several parts. In first part, basic themes of liberal feminism will be highlighted; secondly, a comparative study will be made between different feminisms; thirdly; focus will be made to the norms of international human rights law to advance our submissions as to how it is best suited to liberal feminism. Lastly, a short conclusion follows the discussion.

Liberal feminism
The birth of the liberal feminism can be traced to the emergence of liberal political thought with the Enlightenment. Mary Wollstonecraft is said to be modern day exponent of liberation of women thorough education and political engagement. However, recent research discloses that de Pezan (1405), de Gouge (1789) also contributed much to germinate the theory much earlier than Wollstonecraft. Again, many female litterateurs of nineteenth century including F Burney, de Stael, HB Stowe contributed significantly, at least indirectly in this direction. Scholars including Martha Nussbaum, S M Okin have been advancing this approach.
The present day accounts of international human rights law in particular, treaty and declaration based human rights law after the establishment of the United Nation in 1945, is basically premised on the liberal individualism where  liberal feminism took its roots.
Though it is claimed by some scholars including N Lacey that liberal feminism is not in itself a distinctively feminist theory, it deals with the notion that liberal ideals of equality and rights and liberties apply to women. It is particularly associated with formal equality and equality of opportunity.

Liberal feminism versus radical
feminism
A key limitation of liberalism from feminist point of view has been argued to be its individualism. In the first place, it is argued that liberal focus on individual interest obscure the systematic pattern of women's subordination resulting from long standing exclusion and disadvantage. Therefore, women's under representation in occupations and spheres can be explained and legitimated in the context of liberal theory when it is viewed as product of autonomous individual choices.
It is argued the liberal theory operates in pre-social conception of the individualism. Other critique focuses on the liberal conception of negative freedom. Most of the liberal freedom and rights basically requires to be free from state interference.
Another general critiques has to do with reliance which it places on a distinction between public and private spheres. Typically, liberal political thought assumes the world to be divided into public and private spheres and issues; and hence, liberal principles apply primarily to the public world while private lives and private spheres are properly subject to the regime of individual autonomy and negative freedom. Analytically, it has been doubted whether a clear public/ private boundary can be delineated. Historically and empirically, it has been argued that the received view of public and private tends to leave the women's lives private, outside the scope of political intervention and rendering them invisible.
On the other hand, radical feminism also claims to be most autonomous and distinctive conception of feminism. Catherine Mackinnon's ideas represent the most fully developed version of the radical feminist approach. Radical feminism acknowledges the power disparity among two sexes and they base their theories in terms of gender hierarchies of power and dominance or gender disadvantage. Radical approach views women's collective oppression is imposed on them by socially constructed gender norms that place male at the top of hierarchy. According to MacKinnon, sexuality is to feminism what work is to Marxism. She advocates that consciousness raising is the appropriate method by which women can liberate themselves. She also assumes that all women have shared the same basic experience.  She argues that law's alleged objectivity is male. But it is synonymous with rhetorical and polemic one. However, radical feminism is subject to a persuasive critique. First criticism lies in essentialism; if women's position is seen as natural sex difference, it may undercut the main basis of their political advance. It is also argued that most radical lawyers focus on a limited set of issues i.e. sex, sexuality, reproduction, ecology and they show less interest in economic and political inequalities. Pluralistic feminists have objected to radicalism's theory of patriarchy, which is insensitive to social differences.
To sum up, radical notion that women's lives are inherently different to men's it is counter- productive to strive for equality in the areas where women's lives are most like men.  International Human Rights (IHR) cannot answer issues to do with reproductive rights as there is no comparison with men.
Liberalism has a tangible goal and level they are working towards.  Radical feminism critiques liberalism for being too abstract but what exactly 'consciousness raising' is remain still opaque. IHR was born out of liberalism and liberalism focuses on 'individual rational agents'. Radicalism critiques rationality as it is perceived as a male attribute, thus IHR law ignore feminine characteristics such as emotion. Once again we see radical feminists critique contradicting themselves.  By arguing that emotion is inherently female they perpetuate the stereotype of women being irrational.

International human rights law and liberal feminism
At first sight, the international law of human rights offers considerable protection of women. The major focus of the protection of women's rights has been the right to equal treatment and non-discrimination on the basis of sex. The UN charter was the first international agreement to establish non- discrimination on the basis of sex as a basic rights. It refers in its preamble to “equal rights of men and women” and includes as a purpose of the UN the promotion and encouragement of respect for human rights and fundamental freedoms for all without distinction based on sex. The UN and some of its agencies, as well as regional organisations have since adopted a range of treaties and declarations that elaborate the principle of non-discrimination in certain context. For example, article 3 of ICCPR reflects so.
Human Rights Committee in its General Comment on article 26 made it clear that article 26 is an autonomous right to equality which applies to civil, political, economic, social and cultural rights.
Again, a number of international instruments focus on discrimination against women. These include the Convention on the Political Rights of Women (1952), Convention on the Nationality of Married Women, the Convention on the Consent to the Marriage, Minimum Age for Marriage and Registration of Marriages, 1962. The holistic international human rights treaty devoted to women is the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), adopted by the UN General Assembly in 1979. Again, Optional Protocol to the CEDAW was also adopted in 1999 allowing individual or group complaint in respect to violation of CEDAW rights.
Feminists are using existing conception of rights to assist women by specific reference to the international instruments and courts. The much debated dichotomy of muscular public and feminine private is going to be eroded over the years through liberal interpretation of rights discourse by the treaty bodies and courts. Feminists have tried to show how violations in private arena affecting the women in particular can be analysed in terms of human rights abuses. For example, domestic violence can be interpreted as 'torture' under international human rights norms.
As stated earlier, international treaty bodies such as, Human Rights Committee (HRC) in ICCPR, CEDAW and regional courts like European Court of Human Rights (ECtHR), though arguably slowly, in protecting the women's basic human rights. Reference may be made here to couple of cases where violations in traditional private sphere received courts' attention and state concerned was directed to take positive obligations in case of certain violations  [For example, Karen N L Huaman v Peru (Nov 2005), ICCPR & MC v Bulgaria (Dec 2003)]. In fine, adoption of women's rights instruments and attempts at gender mainstreaming have bought some advances in protection of women's rights.
Having regard to the discussion made above, it can be safely termed that neither of the feminist theory in itself is adequate enough to address the theory and practice of rights affecting the women. In short, liberal feminism is based on equality principle of human being upon which basic structure of international human rights norms and framework is located. As seen above, international human rights mechanism, though not adequate, has been playing role to improve the particular violations of women's rights whenever being brought to their notice. Though radical or difference feminism is arguably rhetorical and bit polemic, it also offers thought for at least structural disadvantage of women in general; it is a huge tool to the women rights activists as well. Thus, the liberal  approach is the best feminist approach to use when engaging with international human rights to improve women's lives. To conclude with the metaphor, liberal feminism is foundation of a house named 'feminism' while difference feminism is like paints, cushions and luxurious decorations of it!

The writer is Joint District & Sessions Judge.