Human Rights of Women: National and International Perspectives

6. Why Rethinking the Sovereign State is Important for Women's International Human Rights Law

Chapter 6 Why Rethinking the Sovereign State is Important for Women's International Human Rights Law Karen Knop Introduction This chapter argues for a re-examination of the relationship between international law and women's international human rights law, more specifically, the relationship between the current conceptualization of state sovereignty in international law and the participation of women in the creation of women's international human rightslaw. International law structures women's international human rights law, yet, for reasons ranging from lack of knowledge to realism to the rejection of authority as antithetical to feminist perspectives, women are only beginning to explore these underlying structures.1 This chapter focuses on two fundamental aspects of contemporary international law: (1) its statism and (2) the centrality of the sovereign state in the international legalsystem. By statism, I mean the view of international law that regards state sovereignty as a function of political power, rather than justice; as the acknowledgment of political control by a government over a people and territory, rather than thejudgment that a governmentjustly represents the people. While the centrality of the sovereign state in international lawisrelated to statism,it isnot the same thing. The centralityof the sovereign state reflects the understanding that despite the growing cast of characters on the international scene, the state continues to be the only actor in international law that really matters, that is, the actor that plays the decisive role in making, interpreting, and enforcing internationallaw. By and large, mainstream international human rights discourse on 154 Karen Knop women's rights has internalized the logic of state sovereignty. Mainstream discourse characterizes both progress and challenges for international human rights in terms of the limitation of state sovereignty: like Gulliver tied down by the Lilliputians, state sovereignty is to be limited by a multitude of international human rights norms. Yet the positivist would reply that these norms do not fundamentally change state sovereignty because states consent to be bound by them. Even the acceptance of women's right of nondiscrimination2 or the right to be free from gender-based violence3 as jus cogens would not ultimately alter state sovereignty,since article 53 of the Vienna Convention on the Law of Treaties defines a peremptory norm as "a norm accepted and recognized by the international community as a whole as a norm from which no derogation is permitted" (emphasis added).4 In this chapter, I ask whether the system of sovereign states that undergirds women's international human rights lawis problematic for feminist political and legal change. This is both a theoretical question (what do feminist theories have to say about state sovereignty?) and a practical question (what difference would rethinking statesovereignty make in concrete terms?). As space does not permit a discussion of the former,5 I confine my remarks to the latter.6 I attempt to show through a series of examples what altering either the statist assumption or the assumption of the sovereign state as central to international law-making might mean for women'sparticipation in the creation of women-consciousinternational human rights norms. The aim here, then, isnot to argue for a particular feminist theory of the state or the absence thereof.7 Indeed, there is an argument that understanding cultural differences between womenshould encompass different views of the state, and its domestic and international roles in the advancement of women's rights. The aim is to persuade those active in women's international human rights law that alternative visions of state sovereignty are a vitalnecessity. Alternatives to Statism The best-known formulation of the criteria for statehood in international law,that of the Montevideo Convention on Rights and Dutiesof States,8 requires (a) a permanent population, (b)a defined territory,(c) a government, and (d) the capacity to enter into relations with other states. The essence of this formula is the requirement of effective government: an effective government, by definition, is effective with respect to an ascertainable population and territory, and therefore capable of entering into relations with other states.9 Thus defined, statehood in no way depends on whether the state Rethinking the Sovereign State 155 observes human rights, including women's rights; or whether it represents the population, judging by liberal, feminist, or other criteria of representation. A regime that grossly violates women's rights can be recognized asa state and can participate in the creation of international law. This part of the chapter give examples of...