Space for Contestation: International Law’s Work in Human and Women’s Rights

• In Event: Making and Breaking the International Social Contract Protecting Human Rights

Abstract

An array of human rights treaties developed to actualize the promise of the Universal Declaration of Human Rights, yet the process has been slow and uneven, entailing numerous treaties with different numbers of adherents with different rights for different categories of people. The human rights regime, and international law generally, is commonly thought to be at best chaotic and aimless, and at worst ineffective or irrelevant. However, lack of strict compliance is not a holistic measure of effects, and the contestation and irresolvability of the regime is in actuality vital to the advancement of human rights. International legal instruments contain inherent ambiguities in language, reception, and application which leave necessary spaces for deliberation and negotiation in a world with increasingly diverse interests, and their corresponding rights and responsibilities.

One of the most universally ratified agreements, the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), has also had the largest number of reservations, understandings, and declarations (RUDs) made against its articles. The treaty and state responses to it generated countless debates. Such debates include philosophical questions like universalism versus multiculturalism and individual versus group rights, along with more jurisprudential debates over how reservations should be treated and whether they jeopardize the integrity of the treaty. We detail the evolution of these debates. We also assess a database we are constructing of changes in the reservations states have made with respect to CEDAW and of states' responses to periodic reviews assessing their compliance.

We demonstrate that contestation and resistance to closure have been at the core of the treaty's development and consider the implications for the evolution of human rights regimes. Ultimately, the spaces generated by international legal instruments like CEDAW offer value beyond compliance, namely, spaces in which the contestation and debate commonly perceived as failures can generate the evolution of concepts and claims. In the long run, these developments contribute to a more robust human rights regime.

Authors

• Vanessa Pooudomsak, University of California - Los Angeles

• Arthur A. Stein, UCLA