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

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.