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Women's Human Rights

Universal Legal Claim and Context-Related Adoption

 

From: Stimmen der Zeit, 2006/8, P. 546-561
webmaster's own, not authorized translation

 

Even if there is till now no clear international legal definition of the rights of women, the declaration of the world conference on human rights "The Same Human Rights for Everyone" in Vienna (1993) clearly emphasized the legal status of women's human rights:

"The human rights of women and of the girl-child are an inalienable, integral and indivisible part of universal human rights. The full and equal participation of women in political, civil, economic, social and cultural life, at the national, regional and international levels, and the eradication of all forms of discrimination on grounds of sex are priority objectives of the international community. Gender-based violence and all forms of sexual harassment and exploitation, including those resulting from cultural prejudice and international trafficking, are incompatible with the dignity and worth of the human person, and must be eliminated. This can be achieved by legal measures and through national action and international cooperation in such fields as economic and social development, education, safe maternity and health care, and social support." {1}

Women's rights are unambiguously proven here as a component of the general human rights. Just those elements in the text that refer to facts which in the given context must be interpreted without doubt as specific for women - such as gender-based violence, sexual harassment and exploitation -, are so formulated that they are not limited to women; one appeals explicitly to the incompatibility with the dignity and worth of the person. By that the strictly human right character is emphasized; the implied argumentation aims clearly at the universality of the human rights. I understand this as the attempt to take away from the beginning the basis for possible relativizations - in the sense that it was "only" about women's rights and thus about some particular case.

Thus the Viennese declaration resumes the line that was explicitly taken with the "Convention on the Elimination of All Forms of Discrimination against Women" {2} by the United Nations on 18 December 1979. Tasks and goals of the states are in each case so formulated that "the same rights are to be ensured to women as to men" and that on the basis of equal rights

 


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for man and woman any gender-based discrimination has to be overcome. It is important that - in order to be able actually to comprehend the reality of the life of women - the convention contains differentiated discrimination prohibitions, which refer as well to the public as to the private sphere {3}.

But on the one hand the present fate of the document very clearly reflects the tension between the proclamation of women's human rights and on the other hand their realization in the law of the states as well as their concrete political realization: From 182 states which until today ratified the treaty more than 80 states made known substantial reservations, in particular within the field of the Marriage- and Family Law, what means a refusal of central contents of the convention {4}.

It may belong to the implicit logic of such reservations that time and again the question is asked whether woman-specific human rights exist. But that obviously leads on a wrong track: Exclusive women's rights would easily get into danger to appear in a competitive relation to the general human rights resp. would - as individual rights - be subordinated to them. It is not about proclaiming exclusive rights for women; at stake is the uncovering of woman-specific violations as violations of human rights and to secure the protection from such attacks against the dignity of women by the instrument of human rights. In order that women can effectively participate in the protective function of general human rights, the instrument has to be so revised, differentiated and extended that the specific injustices from which women suffer can be depicted, brought up and get an answer {5}.

 

Dominance of Male Injustice Experiences

Feminist criticism at international law has shown "that the human right pacts are formulated according to male experiences of injustice, whereas they often offer no answers to typical dangerous situations for women" {6}. Source of that speechlessness is a formal understanding of equality, according to which relevant differences have just to be ignored. That leads to the fact that - due to different living conditions, roles and possibilities of development - the actual different effects of legal rules on men and women do not come into view at all {7}. Irrespective of the in the UN's "Women Convention" for the first time effectively altered perspective on the actual living conditions, and thus on the actual inequalities, that "obstacle to sight" impairs now as before the chances of women to get through the human rights a protection corresponding to their concrete living conditions.

 


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The proof of factual particularity is by no means an argument against the general title to human rights, but it is an argument against the expectation that this title is already redeemed, respectively that it is redeemable by the existing sets of rules. Not only the establishment of differences between men and women - no matter how they are justified - is therefore a promising starting point, but also the analysis of the socio-cultural context and of the political power conditions which are stabilized by social conventions and above all by legal standards. For the experiences with modern constitutional states of western coinage Ute Sacksofsky can accordingly state: "The central problem of today's discrimination of women are ... the gender-neutrally formulated legal rules, at the bottom of which patriarchal structures can be found, which in their turn are fastened, supported and strengthened by legal rules" {8}.

With it a substantial dimension of the problem is marked also on a global scale; nevertheless one has now as before to reckon with many countries and legal systems with legal rules manifestly discriminating women, or with the rivalry between the national legislation and the traditional (e.g. religious) norms of behaviour, and with sanctions through which the different behaviour pattern between the genders are established and fixed {9}. Against that background the formula "women's rights are human rights" above all reads as a task the realization of which first of all requires explicitly to become aware of and to integrate the women's experiences of injustice into the human rights instrument.

 

Problems with the Articulation
of Woman-specific Experiences of Injustice

It can be regarded as consensus of the human right theory that the development and unfolding of the human rights can be decoded as emancipatory reaction to experiences of injustice {10}. But it is to be asked: What are the reasons for the asymmetry in the representation of man-typical and woman-typical experiences of injustice in the human right apparatus?

Ute Gerhard proved in her research that and why conditions of discrimination, inequality and injustice of women can often not be articulated by the women concerned as experiences of injustice {11}. An explanation for those findings can be found in the joint effect of tradition, culture and the conception that women have of themselves: Traditional asymmetries in the conceptions of the genders and in their rôles (women are weaker, less worth, have fewer rights etc.) frequently determine also the self-awareness of women within the respective contexts. They for instance notice their own situation as unequal - compared with the social position and chances of men, but since those allegedly matter-of-course differences are for instance declared as "natural" or as prescribed by the own tradition and therefore determine the social recognition and integration, women are on their own unable to describe them as "unjust" as long as those differences are not questioned by "foreign", external yardsticks. {12}.

 


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But even when women interpret their experiences of inequality as experiences of injustice and speak them out, it is not a matter of course that this injustice is also recorded in human right categories and reflected in legal orders {13}. That is related to the places and contexts of woman-typical experiences of injustice: According to international law human rights - as they are codified in the human right pacts - refer to the exertion of the authority of the state on individuals. From there result two problems for the awareness of woman-typical violations of human rights: Firstly women are often not seen as individuals or as (legal) subjects, but as elements of a social context in which they exercise fixed roles and functions and live up to certain expectations (e.g. in the marriage resp. couple relation, resp. in family and clan). The second problem is connected with that: The women's area of activity and their social field in which they are located and noticed is in most cultural contexts above all the family, the private sector. As a result women typically experience injustice in that area which is subject to own rules.

On the one hand traditional societies are very strongly interested in the stabilization of that fundamental area with its social relations and power structures, so that Marriage and Family Law - including the associated economic rules (right of ownership and inheritance) - is of great importance for the regulation of women's living conditions; on the other hand at least in a liberal legal order the family is regarded as a protected area which is to remain as far as possible exempted from state regulations. A legal apparatus orientated toward a "liberal" separation between public and private sphere and working with "legal facts which are seemingly formulated in general terms or gender-neutrally" is therefore unable to grasp "the crucial and most frequent damages and injuries of the dignity, self-determination and bodily (!) intactness of women as well as their exclusion from the public and the handicap of their life chances, because those matters are not classed as belonging to the authority of the state but to the private sphere or even to the protection of the family" {14}.

 


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At first glance a paradoxical effect becomes visible with those considerations: The concurrence of a more patriarchal, women discriminating social order with a human right apparatus that duplicates the liberal separation from public and private sphere doubles the difficulties to identify woman-typical experiences of inequality as experiences of injustice and as violations of human rights and to incorporate them into the save haven of human rights. In the measure as the normative structure of human right is determined by the systematic separation from public and private law, a substantial source of continual female experiences of injustice therefore remains invisible as regards human rights {15}.

That invisibility does not depend on the question whether the liberal separation is effective in the social and legal cultural context in which women are subjected to injustice; its reason lies rather in the liberal impregnation of the human right apparatus. Its range is limited by the dichotomy 'publicly / privately' and cannot grasp the woman-typical field of experiences of injustice as long as not a process of transformation becomes effective in which the conception of human rights is no longer statically seen but in its processual dynamics and relevance and which accordingly anew extends and interprets its meaning {16}. The de-privatization of the 'privacy' of woman-typical experiences of injustice and the extension of the efficacy of human rights are therefore necessary preconditions, in order that such experiences can be portrayed and opposed by the medium 'human rights'. That connection can be understood with the help of the topic "Violence Against Women" which only since the beginning of the nineties found its way into the relevant 'human rights' agenda - and into an corresponding UN-declaration (1993) {17}.

Against the background of that context now argumentation patterns are to be taken in which are typically used to stabilize patriarchal and woman-discriminating systems. Beyond a description is to be asked about possibilities to overcome such argumentations in favour of a human rights universalism really deserving this name. The topic is so complex and ramified that only a few lines can be outlined here.

 

"Nature" as Standard

As meta-category overlapping the disciplines and discourses "gender" describes the cultural interpretations of the human body, by which the individual gets via his/her gender identity and gender role a certain place in a social order. "Gender" accordingly functions as instrument for the perception and analysis of the social conditions of the genders, which become firmly established in various cultural forms (e.g. language, symbol systems), in social orders and legal systems, and are associated with hierarchies and also with power asymmetries.

 


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Renate Hof assigned to the category "gender" the function of "demarcation to a causal connection between the (female/male) bodies and certain social roles which are presupposed to be naturally given" {18}. In this respect the tool of criticism has to be applied wherever women are - due to an allegedly natural determination - deprived of the legal title to human rights. With it inter alia the particularly precarious fields of sexual self-determination as well as of Marriage- and Family Law come into the focus of attention:

"The reduction of women to the allegedly natural way of life caused by their gender becomes the basis for the assertion that women show deficits in regard to moral and intellect, and this again becomes the reason to deprive them of their human- and civil rights. - From a gender difference a human deficiency arises, from a human difference a social and legal inequality." {19}

Particularly the 'nature' argument suggests itself and can effectively be used as legitimating pattern within the context of the religious conception of God as Creator and Legislator and of man as creature: The 'nature'-argumentation can be metaphysically heightened - as it is the case in certain forms of the doctrine of natural law in the argumentation of the Catholic teaching authority and in certain strands of the Catholic theology. It is obvious and can easily be proved up to the newest documents that such ways of argumentation - without explicitly telling it - serve also to stabilize the existing gender conditions with their asymmetrical balance of power {20}.

 

Tradition and Culture Between Respect and Criticism

According to Renate Hof the aim of the gender analysis should be to "connect the structure of the relations between the genders with other cultural contexts and forms of social organization" {21}. So far 'culturalist' argumentation patterns that reject the women's claims to human rights by referring to the validity of tradition and culture are to be critically scrutinized. Regarding this there is relevant the referring to a development moulded by one's own culture or, more precisely, the postulate that certain traditions have to be preserved as source of identity and as medium of affiliation to a certain group.

The argument with the role of tradition and custom as well as with the political handling of those factors has to be secured towards two sides: on the one hand against the danger of a colonialism or imperialism that may mean it well but is de facto irreverent and arrogant and often resounds in certain argumentations of western liberal provenance {22}, and on the other hand against an allegedly respectful, actually however uncritical acknowledgment of a woman-discriminating status quo, as it determines 'culturalist' argumentations of western as well as of non-western origin {23}.

 


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Dynamic Understanding of Tradition and Culture

When the demand for human rights for and by women is repelled with the argument, 'That is against our own tradition' or 'That is inconsistent with the right to a development according to our own culture' then one claims that the defended tradition and culture is superior to the right in discussion and to the freedom of the persons concerned. There is implicitly presupposed the value-judgment that the defended tradition and culture is good and valuable in itself. In the measure as such a prejudice works every questioning of a tradition appears from the beginning as morally discredited. That prejudice is also easily connected with the identification of tradition and intact community, the stability of which the protection of tradition has just to serve, whereas the demand for women's human rights is seen as criticism (which must be refused) of the tradition, and is connected with a trend to individualization, non-solidarity, western life stile, decadence etc.

Occasionally such tendencies are to be seen just with western 'culturalists', whereby one gives an archaic and romantic picture of the foreign tradition and culture and confronts it quite graphically with a decadent model of the "west". Without ignoring the principally undisputed value of tradition and culture as medium and context for the formation of identity, you have to question such a weighty normative understanding and to disintegrate it in favour of a more differentiated picture. Compared with an apparently monolithic and static, in the long run unhistorical conception of tradition and culture their asymmetries and (hidden) dynamics are to be examined.

One element that leads to a dynamic view on traditions is obviously the question after the actors or the "agency" - i.e. the potentials which are accessible for certain members of a tradition community but seem inaccessible for others -, and after the hidden potentials that can be found by this uncovering of the (power-)interests working in tradition and culture {24}. The picture of a tradition and of the standards working in it will change with the knowledge about the interests of those who are committed to the defence of the status quo of an allegedly change-resistant tradition and culture. For too often there is hidden behind the demand for respect for (religious) traditions and cultures another dominating interest, e.g. the securing of the existing balance of power that - patriarchal structures and valuation patterns presupposed - must go to the debit of women. The disguising of such power-hungry political interests by appealing to (and so 'instrumentalizing') the value of tradition and culture has to be uncovered.

In order that such a venture does not remain a criticism that comes from outward (and is therefore always exposed to the reproach of imperialism or colonialism) but becomes an inherent potential for changing the tradition and culture under discussion, it is above all necessary to enable the women concerned to hold an own standpoint within and in relation to the tradition and culture that determines their living conditions and at the same time prevents them from acting as independent subjects.

 

Authorizing Women for Cultural Participation

The critique of tradition is therefore obviously indispensable, in order to arrive at a constructive relation between 'tradition/culture' and 'human rights for women'. The aim must be to authorize women critically to study the traditions and to establish new traditions. By this it becomes clear that it is not about the alternative of human rights of women versus traditions, but to make possible a mutually inspiring, context-specific dynamic development of traditions and human rights {25}. For such initiatives of women - actively to relate to traditions and cultures that determine the reality of their lives - preconditions are needed: education, networks, communication and dialogue in own protected communication areas as well as in public argument.

By establishing new areas and communities for action, in which tradition-critical and at the same time tradition-productive action can be tested and mutual ascertainment can happen, women become s u b j e c t s who are looking for a new relation between rights and traditions, and who advance by their initiatives the 'de-privatization' and reveal their unequal treatment, their experiences of injustice and the violations of their human rights. Numerous development and education projects in countries of the so-called Third World reflect that connection and prove how crucial that authorization of women is when the change of living conditions is at stake, the standing up for one's rights, and for a new relation to the own traditions.

Realistic chances to bring tradition and culture and women's human rights into a constructive relation will therefore open to such an extent as the women concerned become actors themselves: when they are able to articulate their experiences of inequality and injustice,

 


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when they discover in themselves potentials for action and thus for a change of their situation, and when they experience by their practical doing that traditions - in the name of which the s u b j e c t status is refused to them -, need not remain static, unchangeable and impenetrable {26}.

 

Women's Human Rights -
Universal Legal Claim and Particularistic Denials

With the demand that women must be able to act against the restrictions imposed upon them in the name of tradition and culture, a further fundamental question arises: What is the relation between the individual title to equal freedom that is secured by the human rights and the standards of certain communities restricting those freedoms. At bottom there is under discussion the relationship between the demands of justice and the normative implications of particular drafts of 'good life'.

The universal title of the human rights - and thus particularly also the human rights activists' claim to "equal power for women", as the Fourth World Conference of Woman in Beijing has formulated it {27}{27} - is endangered at least from two sides: on the one hand by the 'culturalist' objection that this was a "western" conception which therefore could not lay claim to universal validity; on the other hand the gesture of superiority shown by some representatives of "western culture" strengthens the anti-western prejudice. With regard to the resistance against a universal title to human rights you have to differentiate between a "cultural" and a "political" argument, though both can also merge.

On the level of values resp. cultural identity one argues that the "western" human rights are not compatible with one's own value systems; that can be seen for example in the discussion "Individualism Versus Common Values" {28}. The problem is at first that human rights are - against historical evidence - seen as a static conception and are wholesale rejected by identifying them with a category of strangeness ("the West"). Furthermore the question of their genesis in a certain, de facto Western cultural area and the question of their validity are mixed in such a way that from the beginning the dynamical quality and the possibility to change the conception of human rights cannot be seen.

That defence argument is to be compared with a strategy which at first glance seems to be a contrary and apologetic one, as it can be noticed for instance in some Islamic but also Christian contributions: Occasionally one argues that the human rights - in the sense of God-given and constant rights - are always realized in one's own religious tradition,

 


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but that they are somewhat differently understood in the one or other respect {29}. Of course, in the perspective of recognition and realization of women's human rights greatest scepticism is advisable about arguments that can easily be unmasked as a strategy of immunization against further demands. Here too unpleasant implications of the human right conception - for instance with regard to the rights of women - are then rejected as western reading to which the own - superior, because founded in the true religion - interpretation is to be preferred.

The possible power interests connected with such defence strategies have already been dealt with. The question who does use such arguments and in which political connections and power constellations and whether and how far critical discourses are possible on the part of the concerned is also on this matter a key question.

On the level of politics one criticizes that the defence of human rights is used as vehicle (Trojan horse) of a Western imperialism - the human rights are therefore abused as instrument of foreign power. That suspicion, which is harboured particularly against the USA and gets time and again actual political food, needs no explanation and is a burden to serious human right politics. Centuries-old unforgivable experiences of suppression, colonization and 'marginalization' form often the background against which - in view of global power asymmetries and continued imperialisms - the reference to one's own tradition has to be used as anchor by peoples, cultures and religions that feel threatened in their very identity. As pointing those problems out to the western political actors it should therefore be taken seriously.

Thus the pendant of the 'culturalist' vetoes against the universal title to human rights appears in the mirror of criticism: The gesture of superiority of certain forms of Western liberalism which deny the other non-Western cultures the ability to join the 'human right idea', resp. the ability to implement the human rights. Such claims to hegemony of Western actors are be found not only in political rhetoric and strategy but also in philosophical argumentations, e.g. the gesture of a liberalism that is presented as superior, and is in danger to derive - from the observation of actual existent human right deficits - sweeping prejudices against certain "cultures", for instance with regard to their 'sexist' implications {30}.

The objection that the human rights are of Western coinage can probably only be overcome by an explicitly dynamic understanding of the human rights. With it the dynamics that constitutes the human rights as universal {31} takes its starting point from the crushing evidence of emergency and suffering {32}. This corresponds to the approach for which I pleaded further above, when I spoke about woman-specific violations of the human rights which must find an answer by the instrument of human rights - in the sense of extension, context-specific concretizing and 'dynamization' of the human rights "canon".

 


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Pleading for a Context-sensitive Human Right Universalism

Criteria for the acceptance or rejection of particular conceptions of "good life", as they find expression in certain traditions and cultural contexts and are taught to the members of the respective communities in the sense of normative rules, are to be won from the core of the human right conception: the respect for the dignity of each individual person, and the acknowledgment of its subject status {33}. The basis criterion of respect for concrete subjects who can never be understood without the context (their living conditions), must - beyond of the formal adjudication of "dignity" - be proved by the real chances of concrete subjects to live their own lives. Therefore the challenge of a universal 'dignity title', that is to be secured legally and is to take concrete political shape, is realized just in the individual doings of human beings.

That causes a critical examination of "individualism" as well as of "universalism": The various conceptions of 'good life' are to be respected as long as they do not dodge either the title (which is to be demanded for every subject) to be respected in her/his dignity as human being, or the human rights founded it that dignity. Any draft of 'good life' is to be subjected to that criterion, in order to be able to ensure that not - in the name of such drafts - certain individuals and groups are hindered to get the benefit of elementary justice standards and thus also the chance for an individually lead 'good life'. At the same time, however, also conventional universalistic approaches starting from the presumption that justice has priority over particular drafts of 'good life' are to be submitted to criticism as far as they exclude from consideration wide ranges of individual and family life with their special problems of justice as allegedly private and individual.

The concern to make the protection of human rights universal, which in the perspective of acknowledgment and realization of the human rights for women appears absolutely without alternative, has therefore to be met by a dynamic concept that connects the universal title and safeguards the particular life circumstances.

Approaches which attempt to correspond to that concern I see in those philosophical drafts which - beyond the separation between the spheres of justice and 'good life' - inquire about fundamental human needs resp. abilities the realization of which has to be made possible for every human being in a certain life context; as that is for instance drafted in the "capability approach" represented by Martha C. Nussbaum and Amartya Sen {34}.

 


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A helpful perspective is offered by another approach which converges however in the objective with the capability approach. It is Seyla Benhabib's conception of a "context-sensitive universalism". Universality is not understood as "ideal consent of fictitiously defined individuals but (as) the concrete effort of concrete physical individuals to establish autonomy in politics and moral" {35}. According to her suggestion - "generalized 'others' (people who speak in the name of culture, tradition, doctrine ...) and concrete 'others' (individuals who speak in their own name)" criticize each other, so that the apparently motionless confrontation between 'human rights for women' and the '(demanded) persistence of traditions and cultures' comes into motion: Starting point is for Benhabib a dynamic discourse-ethical interpretation of the right to cultural differences, under the premise that the right of every woman and man to universal participation and autonomy ranks before the right to group-specific privileges {36}.

From those just mentioned social-philosophical approaches result two consequences which are of immediate relevance for enabling political action of women in favour of their human rights.

 

Personal Freedom and its Relation to Traditions

The demand for respect for traditions and cultural peculiarities must not out-lever the freedom and responsibility of the person to deal according to his/her own judgement and decision with traditions, cultures and faith systems with their specific normative expectations {37}. A human right approach that takes its starting-point from man's dignity, which has to be protected by certain fundamental rights, acknowledges the right of individual members of a certain (tradition-) community in freedom to adopt a position and to make the normative demands of that tradition the object of discourse and criticism. In this respect Benhabib speaks in another context in which it is about the 'status of minorities and acknowledgment of cultural differences within a certain society' of a "right to cultural difference":

"The right to cultural difference means in the discourse theory the right to renewal, interpretation and also refusal of one's own culture. That discursive approach is supported by a narrative model of culture which understands culture as a dialogue that overlaps the generations, as a dialogue of adoption and refusal, as a new narration and revival." {38}

 


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From that follows on the one hand the demand on the "culturalists" that tradition and culture are neither to be brought into play as monolithic block nor as sacrosanct authorities, in order to withdraw them so from any critical examination by the standard of human rights! On the other hand the demand on the liberally moulded "universalists" to correct the conventional separation of private and public sphere in such a way that "the discursive questioning of controversial cultural and religious customs and the development of a culture of civilian creativity" are promoted! "It is that creativity which demands of individuals and groups to develop justifications defensible in public and to concern themselves also with other points of view than their own." {39}

For that approach the demand is fundamental to transfer the formal universality of the recognition of the generalized other's dignity to the contextualized universality of the recognition of the concrete other's moral identity and vice versa. Accordingly it must be possible to justify the particularity of requirements, needs and value conceptions of every concrete human being by recognizing the dignity of all others. To realize this mutual relationship of acknowledgment as a process, a struggle for positions that can become universal, will lead out of abstraction and allow dealing with the political-ethical relevance of those problems. The practical acknowledgment of women as (right-) subjects and moral subjects with their life stories and political experiences becomes the touchstone for the legitimacy of actions and decisions, and also the touchstone for the coherency of theoretical preliminary decisions within the back rooms of political processes.

 

Participation of the People Concerned

Such processes in the field of politics are only possible when the people concerned become participants. In order that women in patriarchally moulded contexts get the chance freely to deal with the given traditions and to take part in changing them preconditions are needed which are to be achieved politically. To enable the participation of the persons concerned Amartya Sen shows a fundamental precondition (in the passage quoted here admittedly without pointing the question under the aspect 'gender'). He proceeds from the assumption that the traditional ways of life can be retained when the society decides to do so. That, however, presupposes the public consideration of the goods in question. The persons concerned must - this is the crucial point - be enabled to take part in that process by the recognition and realization of their fundamental human rights.

 


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"The reasonable assessment of such options crucially depends on the population's possibility to take part in the public discussions on the issue in question. We come back to our approach for a possible realization: the different segments of society - and not only those who are better-off - should be able to cooperate in decisions about things worth to be retained and others that are obsolete. There is no necessity to preserve even to high costs forms of life that disappear; but for reasons of social justice it is quite necessary that people, when they want to take part in those decisions, are also able to do it. That is a further argument, in order to give priority to such elementary preconditions as (by means of a good education in a primary school) to be able to read and write, (by means of free media) to be well informed and (by means of elections, referenda and the general use of citizen rights) to have real chances of a free participation." {40}

The reference to the realization of human rights as precondition for the realization of cultural self-determination within normatively demanding traditions and cultures reveals a dilemma in the case of women's rights: The granting of human rights is the precondition for a public discourse about the implications of freedom in relation to tradition, but they are - due to the tradition-conditioned restrictions - often not available for women. In order to realize the appropriate conditions for women in patriarchally moulded contexts and social structures it is, as experience shows, not enough to trust in the established political institutions. The argumentation figures and strategies discussed above in this contribution form still a strong political shield against such claims of women.

Recognition and realization of women's claims to human rights and the extension of those areas where they can freely realize their abilities and chances therefore substantially depend on the formation of political movements and civil social networks working for the human rights of women - and thus for truly universal human rights. The international Women's Human Rights Movement, the work of non-governmental organisations, the formation of networks in different regional, national and global cultural contexts are not only a welcome addition, but rather a necessary condition for a successful lobbying and for the ability of women in oppressive cultural contexts to work for their legitimate claim to human rights, and to realize it also against strong conventions and under the penalty of sanctions.

As the history of the World Conferences of Women and the relevant agreements on international law show there gradually comes motion into allegedly inflexible constellations, and learning effects become - laboriously enough - visibly by the cooperation of such civilian, in the broadest sense women-political initiatives with the instruments resp. institutions of the international human right politics.

 


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The situation of human rights for women will lastingly only change to such an extent as the relationship between the genders within a society comes as a whole into motion. But that on the other hand will only happen where women become aware of their own dignity and rights, where they stand up to make visible the violation of their human rights, and where they take legal action in order to obtain their recognition. That presupposes the possibility that women c a n, i.e. that they are allowed to act; they must no longer be exploited as resource only, but be allowed to take part as s u b j e c t s with the title to the same freedom of action and of choice, as equal bearers of responsibility and as persons who profit by the social processes of economical, political, cultural and religious development {41}.

 

NOTES

{1} Gleiche Menschenrechte für alle. Dokumente zur Menschenrechtsweltkonferenz der Vereinten Nationen in Wien 1993, edited by Deutsche Gesellschaft für die Vereinten Nationen e.V. (Bonn 1994) 13-46, 19.

{2} Cf. www.unhchr.ch/html/menu3/b/e1cedaw.htm

{3} Cf. D. König, Die Diskriminierungsverbote im Übereinkommen der Vereinten Nationen zur Beseitigung jeder Form der Diskriminierung der Frau (CEDAW), in: Gleiches Recht - Gleiche Realität? Welche Instrumente bieten Völkerrecht, Europarecht u. nationales Recht für die Gleichstellung von Frauen?, edited by the same and others (Loccum 2004) 217.

{4} Cf. 215.

{5} Cf. U. Gerhard, Die Menschenrechte der Frauen, in: Jahrbuch Menschenrechte 2005, edited by Deutsches Institut für Menschenrechte (Frankfurt 2004) 17-27, 21f.

{6} U. Sacksofsky, Die blinde Justitia: Gender in der Rechtswissenschaft, in: Genus. Geschlechtsforschung / Gender Studies in den Kultur- u. Sozialwissenschaften. Ein Handbuch, edited by H. Bußmann u. R. Hof (Stuttgart 2005) 402-443. 414f.

{7} Cf. Gleiches Recht - Gleiche Realität? (note 3) 215.

{8} Sacksofsky (note 6) 424.

{9} Cf. M. C. Nussbaum, Sex and Social Justice (New York 1999)

{10} Cf. Th. Hoppe, Menschenrechte im Spannungsfeld von Freiheit, Gleichheit u. Solidarität (Stuttgart 2002) 145-151.

{11} Cf. U. Gerhard, Warum Rechtsmeinungen u. Unrechtserfahrungen von Frauen nicht zur Sprache kommen. Ein nicht nur methodisches Projekt zur Rechtstatsachenforschung, in: Zeitschrift für Rechtssoziologie 5 (1984) 220-234; U. Gerhard, Unrecht zur Sprache bringen - Frauen im Menschenrechtsdiskurs (Berlin 3. März 2005)
cf. http://institut-fuer-menschenrechte.de/dav/Publikationen/Institutspublikationen/2005-03-03_Gerhard_Frauenrechte.pdf

{12} Cf. Nussbaum (note 9) 33; Gerhard, Unrecht zur Sprache bringen (note 11).

{13} Cf. Gerhard (note 5) 21f.

{14} In the same place 20.

{15} Cf. P. Follmar-Otto, Frauenrechte statt Frauenfrage. Entwicklungen u. Themen im internationalen Schutz der Menschenrechte von Frauen, in: Jahrbuch Menschenrechte 2005 (note 5) 31-44.

{16} Cf. Ch. Bunch, quoted after Nussbaum (note 9) 66.

{17} Cf. Follmar-Otto (note 15) 33f.

{18} R. Hof, Einleitung: Geschlechterverhältnis u. Geschlechterforschung - Kontroversen u. Perspektiven, in: Genus. Geschlechterforschung / Gender Studies in den Kultur- u. Sozialwissenschaften, edited by H. Bußmann and others (Stuttgart 2005) 2-41, 15.

{19} A. Maihofer, Gleichheit nur für Gleiche?, in: Differenz u. Gleichheit. Menschenrechte haben (k)ein Geschlecht, edited by U. Gerhard and others (Frankfurt 1990) 351-367, 352.

{20} Cf. e.g. Schreiben der Kongregation für die Glaubenslehre an die Bischöfe der Katholischen Kirche über die Zusammenarbeit von Mann u. Frau in der Kirche u. in der Welt v. 31. Juli 2004, edited by Sekretariat der DBK (Bonn 2004); to this: M. Heimbach-Steins, Ein Dokument der Defensive. Kirche u. Theologie vor der Provokation durch die Genderdebatte, in: HerKorr 58 (2004) 443-448; the same, Geschlechtersymbolsimus u. "frauliche Werte". Biblische Rekurse im lehramtlichen Geschlechterdiskurs, in: "Gott bin ich, kein Mann". Beiträge zur Hermeneutik der biblischen Gottesrede (FS Helen Schlüngel-Straumann, Paderborn 2005) 420-428.

{21} Hof (note 18) 15.

{22} Cf. Is Multiculturalism Bad for Women? Susan Moller Okin with Respondents, edited by J. Cohen, M. Howard u. M. Nussbaum (Princeton 1999).

{23} Cf. Nussbaum (note 9) 32.

{24} Cf. in the same place 8.

{25} Cf. in the same place 9.

{26} Cf. in the same place 48f.

{27} Forderungskatalog der 4. Weltfrauenkonferenz in Peking 1995, vgl. www.un.org/Depts/german(conf/beijing/anh_2_7.html#iv-g

{28} Cf. H. Bielefeldt, Philosophie der Menschenrechte (Darmstadt 1998) 150-174; cf. A. Sen, Ökonomie für den Menschen. Wege zu Gerechtigkeit u. Solidarität in der Marktwirtschaft (München 22003) 273-296.

{29} Cf. Bielefeldt (note 28) 134-137.

{30} Cf. Is Multiculturalism Bad for Women? (note 22) Susan Moller Okin develops in her contribution about the effects of 'multiculturalism' on the social position of women (7-26) from the listing of some important problems a decidedly shortened connection of culture and sexism, without letting see any positive understanding for further implications of culture - and especially religion; about the simplifying picture of culture arising from that narrow view especially see the contribution of M. Nussbaum, A Plea for Difficulty, 105-114.

{31} About the conception "To make the conception of human rights universal" see N. Brieskorn, Menschenrechte. Eine historisch-philosophische Grundlegung (Stuttgart 1997) 163f.

{32} Cf. Hoppe (note 10) 145.

{33} Cf. K. - W. Merks, Universalität oder Relativität der Menschenrechte, in: Universale Menschenrechte im Widerspruch der Kulturen, edited by J. Hoffmann (Frankfurt 1994) 45-58.

{34} Cf. M. C. Nussbaum, Women and Human Development. The Capabilities Approach (Cambridge 2000).

{35} S. Benhabib, Der verallgemeinerte u. der konkrete Andere. Ansätze zu einer feministischen Moraltheorie, in: Denkverhältnisse. Feminismus u. Kritik, edited by E. List u. H. Studer (Frankfurt 1989) 464.

{36} Cf. S. Benhabib, Kulturelle Vielfalt u. demokratische Gleichheit. Politische Partizipation im Zeitalter der Globalisierung (Frankfurt 1999) 111.

{37} Cf. Nussbaum (note 9) 46.

{38} Benhabib (note 36) 111.

{39} Ebd. 112.

{40} Sen (note 28) 289.

{41} Cf. M. Heimbach-Steins u. C. Lücking-Michel, Frauen - Menschen - Rechte. Universalität u. Partikularität von Frauenrechten am Beispiel des Rechtes auf Entwicklung, in: JCSW 39 (1998) 161-188. 181f.

 

    {*}Marianne Heimbach-Steins, professor for Christian sociology and religion sociology at the University Bamberg, discusses nature-, culture- and tradition arguments and suggests a dynamical conception of a context-related human rights universalism.

 

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