Do you endorse that the conventional discourse on human rights has failed to include women’s rights? Explain in the context of feminist theories. (2015, 20 Marks)
The claim deserves qualified endorsement. The “rights of man” of Locke and the French Declaration (1789) were not meant to include women, as Mary Wollstonecraft (1792) and Olympe de Gouges (1791) protested at the time. The post-1945 regime is formally gender-neutral, yet feminist theorists show that its structure long kept most harms done to women out of view. Since the 1990s that exclusion has been partly corrected, but not overcome.
Why the conventional discourse excluded women
- The public/private divide. Classical human rights restrain the state in the public sphere: arbitrary arrest, torture, censorship. Most violence against women happens in the family, the household and the community, which liberal theory treats as private. Susan Moller Okin showed that the state already regulates the family, but from a male vantage point.
- A male yardstick. Hilary Charlesworth, Christine Chinkin and Shelley Wright (“Feminist Approaches to International Law”, 1991) argued that international law is built on men’s experience. Torture counted only when an official inflicted it, so domestic battering did not.
- A hierarchy of rights. Civil and political rights were given priority, while the socio-economic rights on which women’s security depends (unpaid care, health, reproduction) were treated as aspirations.
Reading the gap through feminist theories
- Liberal feminism finds the framework sound and the problem one of exclusion. Its remedy is formal equality and non-discrimination, which appear in UDHR Article 2, the Covenants and CEDAW (1979). Critics call this “add women and stir”.
- Cultural or difference feminism, drawing on Carol Gilligan’s In a Different Voice (1982), wants substantive equality that values women’s distinct experience. Its central move is to break the public/private dichotomy so that rights reach the home.
- Radical feminism treats patriarchy as the basic structure, and holds that equality and difference both measure women against men. Catharine MacKinnon locates male dominance in sexuality and argues that wartime rape continues peacetime violence. Her claim that “the state is male” means rights designed by men cannot simply be extended to women.
- Postcolonial feminism. Chandra Talpade Mohanty’s “Under Western Eyes” warns that Western feminism creates a single, passive “Third World woman”. Ratna Kapur (2002) adds that victimisation rhetoric reduces them to victims and invites protectionist, conservative remedies, so women’s rights must be read through caste, race and class, not as a civilising mission.
- Method. Feminist theory starts from women’s situated experience, not abstract outsider categories.
How far the discourse has changed
- Charlotte Bunch’s “Women’s Rights as Human Rights” (1990) drove the change. CEDAW’s General Recommendation 19 (1992) classed gender-based violence as discrimination, and the Vienna Declaration (1993) called women’s rights an “inalienable, integral and indivisible part of universal human rights”. DEVAW (1993) and the Beijing Platform (1995) followed.
- The Rome Statute (1998) lists rape, sexual slavery and gender persecution as international crimes. The ICTR’s Akayesu judgment (1998) held that rape can constitute genocide. In 2025 the ICC issued arrest warrants against the Taliban’s supreme leader for gender persecution.
- In India, Vishaka (1997) used CEDAW to create workplace harassment guidelines.
Why the endorsement remains partial
CEDAW carries more substantive reservations than any other human rights treaty, most of them on family law. India’s declarations on Articles 5(a) and 16(1) protect personal law. The United States has never ratified CEDAW. Afghanistan’s “gender apartheid” is not yet a codified crime. India’s marital-rape exception survives in Section 63 of the Bharatiya Nyaya Sanhita (2023), its challenge still being heard by the Supreme Court in September 2026.
Conclusion
The conventional discourse did fail women in its design. Feminist theory turned that failure into a reform agenda, and the regime has since rewritten its norms. The remaining exclusion lies in reservations, enforcement and the private sphere, so the critique is now less about recognition than about implementation.