Gender equality in international law and constitutions: mediating universal norms and local differences

Research output: Chapter in Book/Report/Conference proceedingChapterResearchpeer-review

Abstract

Introduction One of the aims of international law is to set universal norms, and an area where it has been particularly successful is in articulating the norm of gender equality as embodied in the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). Constitutions may also state norms that are universal but may also include provisions that recognise local diversities. Norms serve many functions, and amongst other things they are a mechanism of governance. Constitutional norms are important inter alia as they are meant to regulate the exercise of political power. India and Vanuatu both subscribe to norms of gender equality as parties to CEDAW, and the promise of equality is embedded in both countries’ constitutions. However, the respective constitutions of the two nations were drafted in very different circumstances, which may be described as postcolonial and postmodern, respectively. This bears on the way each legal system deals with the plurality of laws that affect women’s right to property. India in its Constitution prioritised equality as a fundamental right but retained the concept of religious personal laws. Vanuatu, on the other hand, included both equality and recognition of custom in the Constitution. In spite of these approaches adopted to cater for equality, women have not fared well in either country in gaining access to property. In this chapter, we explore how the national legal systems mediate the opposing force of universal and particular norms and assess whether the shape of these norms matters. We seek to answer these questions in the specific context of gender equality embodied in legal rules vis-à-vis custom rules. The question for us is whether gender justice necessarily requires the prioritising of difference over universal values. A related question is whether international law in pursuing universal norms is bound to remain imperialist. We use examples from India and Vanuatu to examine international law’s efforts at globalising equality principles that can be at odds with the pluralistic approach taken within national constitutions, which often prioritise customary or religious practices over equality principles. These examples illustrate the shortcomings of focusing on universality and pluralism as guiding frameworks. We argue that neither approach can guarantee gender equality. Rather than providing overarching analyses that pit universalism against pluralism, it is imperative that scholars remain self-reflexive about their role in creating discourse about the limitations of the law in guaranteeing gender justice.

LanguageEnglish
Title of host publicationThe Public law of gender
Subtitle of host publicationfrom the local to the global
EditorsKim Rubenstein, Katherine G Young
Place of PublicationCambridge, UK
PublisherCambridge University Press
Pages170-194
Number of pages25
ISBN (Electronic)9781316481493
ISBN (Print)9781107138575
DOIs
Publication statusPublished - 2016

Publication series

NameConnecting international law with public law
PublisherCambridge University Press

Fingerprint

international law
equality
constitution
gender
Melanesia
India
legal system
pluralism
Law
justice
fundamental right
universalism
women's rights
political power
guarantee
discrimination
governance
discourse

Cite this

Nagarajan, V., & Parashar, A. (2016). Gender equality in international law and constitutions: mediating universal norms and local differences. In K. Rubenstein, & K. G. Young (Eds.), The Public law of gender: from the local to the global (pp. 170-194). (Connecting international law with public law). Cambridge, UK: Cambridge University Press. https://doi.org/10.1017/CBO9781316481493.009
Nagarajan, Vijaya ; Parashar, Archana. / Gender equality in international law and constitutions : mediating universal norms and local differences. The Public law of gender: from the local to the global. editor / Kim Rubenstein ; Katherine G Young. Cambridge, UK : Cambridge University Press, 2016. pp. 170-194 (Connecting international law with public law).
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Nagarajan, V & Parashar, A 2016, Gender equality in international law and constitutions: mediating universal norms and local differences. in K Rubenstein & KG Young (eds), The Public law of gender: from the local to the global. Connecting international law with public law, Cambridge University Press, Cambridge, UK, pp. 170-194. https://doi.org/10.1017/CBO9781316481493.009

Gender equality in international law and constitutions : mediating universal norms and local differences. / Nagarajan, Vijaya; Parashar, Archana.

The Public law of gender: from the local to the global. ed. / Kim Rubenstein; Katherine G Young. Cambridge, UK : Cambridge University Press, 2016. p. 170-194 (Connecting international law with public law).

Research output: Chapter in Book/Report/Conference proceedingChapterResearchpeer-review

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Nagarajan V, Parashar A. Gender equality in international law and constitutions: mediating universal norms and local differences. In Rubenstein K, Young KG, editors, The Public law of gender: from the local to the global. Cambridge, UK: Cambridge University Press. 2016. p. 170-194. (Connecting international law with public law). https://doi.org/10.1017/CBO9781316481493.009