1. Human rights, their definition and enforcement - the case of women's rights

Human rights as a concept is relatively new. Over history there have been a number of values that have been considered rights, but they were not well-defined and certainly not agreed as values that States needed to adopt and enforce.

Revolutions in the 18^th Century began to define them. One of the most influential was the American Revolution which was basically about individual rights as opposed to those authorized (and held) by royalty. Some of these were embodied in the United States Constitution’s first amendments, called the Bill of Rights. These were mostly political or civil rights and did not, initially, apply to women or slaves.  If one was an “originalist” who says that what is stated in the Constitution is what is law, the fact that women were not mentioned in the original is that women did not have rights.   Over the next 150 years, ending in 1920 when women were given the right to vote, this evolved, although in the United States there has not been an equal rights amendment to the Constitution and the United States has not ratified the UN Convention that we will discuss a bit later.

After two world wars, there was a growing consensus that the lack of human rights was one of the causes of war, and when the United Nations was formed inclusion of human rights was one of its basic values. As noted in the first paragraph of the Charter:

WE THE PEOPLES OF THE UNITED NATIONS DETERMINED

· to save succeeding generations from the scourge of war, which twice in our life

· time has brought untold sorrow to mankind, and

· to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and

· to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained,and

· to promote social progress and better standards of life in larger freedom,

This was actually the first time that there was an international agreement about the equal rights of men and women.

One of the first set of negotiations in the first years of the United Nations was to agree on what has been called the Universal Declaration of Human Rights. While we will discuss this in detail next week, its first article states:

All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

Putting aside the idea that it is brotherhood rather than sisterhood, this implies equal rights for women. However, translating these into enjoyable rights has taken a bit of time and that is our first case study in the course.

As you will have seen from the readings, determining how to achieve women’s equal human rights was not an easy process. Part of the problem, later reflected in other human rights conventions that we will analyze, is that there is no question that women have equal rights. That is established in both the UN Charter and the Declaration of Human Rights. The problem is that they don’t enjoy them and enjoyment means that States have to agree on the means for enjoyment. That is the basis if the UN Convention on the Elimination of All Forms of Discrimination.

That Convention itself had to evolve. There were issues that were not really well-included in the Convention, like violence against women.

As you may have noted in my review of Michelle Foster’s book, the Convention was adopted in 1979 (and entered into force in 1982), but violence needed to await the adoption of the Declaration on the Elimination of Violence Against Women. That Declaration was the consequence of considerable work by the UN Secretariat.

That Secretariat was originally not in the Office of the High Commissioner for Human Rights (OHCHR) but rather part of a larger unit concerned with economic and social affairs, first in New York, then in Vienna and then back in New York. That meant that studies of how the Convention could be seen and appraised were somewhat different than for other HR conventions. It was one reason that violence against women could be added as a human right. Now the secretariat of CEDAW has moved back to OHCHR.