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The Politics of Culture in International Law
The notion of “culture” is often used as a justification for not complying with international law. But, as anthropologist Sally Engle Merry argues, a better understanding of culture provides an insight into how global law and local norms define and redefine each other.
What is “culture,” and why is it important in international law?
Anthropologist Sally Engle Merry says that understandings and the uses of the term “culture” are not fixed or unified. She identifies three different ways that the notion of "culture" is used in her study of the United Nations bodies that make and enforce women's rights law.
Context: International Women's Rights Law
The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) is one of the major United Nations conventions. It is the major UN treaty governing women's status, and has the status of international law.
It has a standing body, independent of governments, that has the charge of monitoring and evaluating member states' adherence to the law. While CEDAW does not have any formal enforcement powers, it is able to motivate some degree of adherence through publicly shaming the countries that do not live up to the convention standards.
States that have ratified the convention are obligated to report periodically to CEDAW, whose members, in turn, ask questions and provide encouragement, critique and direction. CEDAW then publishes the content of the reports along with their comments. In recent years the results of CEDAW's reports have gained broad exposure through publishing on the Internet.
So What Has Culture Got to Do With It?
Adherence to the convention is far from universal, even among states that have ratified it. States that do not live up to CEDAW standards often use a number of different methods and arguments to justify or hide their failures.
“Culture” is an important tool for nations that want to justify why they do not or cannot abide by the convention. But, culture is not merely an excuse. Cultural understandings can also be used as tools for political ends or as bases for creative interpretations of global and local law. Going further, in the arena of international law, a culture that champions universal rights and civilized relations criticizes “culture” as local, narrow traditions that get in the way of global relations. This culture of “modernity” is an anti-culture culture.
All these different meanings and uses of culture are evident in CEDAW's work furthering international women's rights. Merry identifies three governments as examples of these different uses of culture in international law.
Culture As Culprit
Even though 170 states had ratified the convention by mid-2002, many had either watered down the convention through ratifying it with reservations or avoided complying with the law by delaying, denying or excusing their actions.
The notion of culture is a commonly used excuse by governments that do not live up to the standards of the convention. A government may report that they have passed laws and carried out public education programs, but have been thwarted in complying with the law because of local cultural practices and traditions. Put in non-political terms, the excuse runs something like this:
We passed legislation. We worked to educate the public. But the people in the villages are stuck in their traditional patriarchal culture. Discrimination and violence against women is just part of their way of life. We don't have the resources or ability to fight local traditions.
Local culture is identified as the culprit behind states' inability to live up to the convention. Static, entrenched local culture is the problem, not the government.
It's All Culture's Fault: Guinea
Guinea ratified the convention in 1982, but did not file a report until 2001. By this time it had missed its first, second and third reports.
The Guinea delegation's report to CEDAW was glowing in its description of the broad-ranging legislation it had passed, in the “huge efforts” it had taken to implement the convention and its activity in drawing up a 10-year plan to strengthen civil society for the benefit of women.
However, all these efforts, the report stated, were being undermined by a “society and culture that is traditionally androcratic.” That is, traditional culture maintained social and political rule by men. Their report listed a number of customary practices that hampered implementation of the convention:
Female illiteracy rates are 93-96% outside the capital city, and only 11% of the higher education students are female, while women produce 80% of all food. A woman is expected to be submissive to her husband as the husband is “the bridge between a bride and God.”
In short, the Guinea delegation claimed that it was doing what it could, but that traditional culture was simply an intractable barrier.
The experts on the CEDAW panel disagreed. Their comments on the report indicated that the government could invest more resources in changing traditional practices. Investing more in women's education would be a good place to start.
Culture As Political Tool
In other countries the split was not between an enlightened government and a culturally backward populace. Rather, the split was between two religious or ethnic factions within the country. In cases such as this, CEDAW provisions were used by one group to undermine the practices (and politically weaken) the competing group. The group that supported (or claimed to support) the “civilized” CEDAW convention delegitimized the competing group by accusing their cultural practices as backward.
Culture As Political Weapon: India
The definition of culture and women's rights plays large in Indian ethnic politics. With the recent resurgence in Hindu nationalism, CEDAW has become a tool for the Hindu majority in their conflict with the Muslim minority.
A legacy from the colonial era, India distinguishes between universal laws that apply to all Indian citizens and “personal laws” that govern such things as family relations. Personal laws are defined by and applied to specific ethnic groups. The larger government policy is one of noninterference in religious and ethnically bounded personal laws.
According to some in the Hindu majority, Muslim personal laws allow for and facilitate discrimination against women. By supporting a uniform code officially in line with CEDAW, Hindus portray Muslim personal laws as culture-bound, backward and discriminatory. The reality is, however, that the uniform law would be Hindu rather than Muslim. Ironically, however, Hindu law and practices are also highly discriminatory (though this fact receives much less publicity).
While the CEDAW experts praised India for its legislation in support of women's rights, it expressed concern over personal laws and the way that the personal laws enabled and protected discriminatory and violent actions toward women. Many on the CEDAW review committee supported a uniform national code rather than independent codes applicable to different religious and ethnic groups. However, this view was not universal. One CEDAW expert expressed concern that a uniform code was neither needed nor possible.
In India's case, international law has become a weapon for one ethnic group against another. Some Hindu factions claim to support universal international laws in contrast to the backward culture of Indian Muslims. “Culture” is not understood in the general sense of a group's values, beliefs and practices (whether the values and beliefs are those of Muslims, Hindus or international human rights advocates). Nor is “culture” understood as a dynamic, contested feature of social life. Rather, in the hands of those who would further their own political agenda, “culture” is a characteristic of how the “other guy” lives. “Culture” is a tool for beating up one's political opponents.
Culture as Basis for Change
Some critics of globalization worry that globalization will mean the expansion of a uniform global culture and laws at the expense local customs and practices. However, the case of Egypt's ratification and application of the CEDAW convention argues against this.
Rather than understanding culture as a barrier to women's rights, or using culture as a political weapon, the dynamic nature of local culture may be used as a basis for creatively reinterpreting and applying international law. In this approach, local culture is not something that gets in the way of international law, but is the basis for innovative reforms
Local Culture Gives Meaning to International Law: Egypt
Egypt ratified CEDAW with a number of reservations. This meant that Egypt agreed to only abide by some, but not all of the convention articles. The inequality of women was a major premise of the shari'a, the Muslim system of religious law. Additionally, the patriarchal culture of the country stood as a potential barrier to implementing the convention.
However, in their 2001 report, the Egyptian delegation proudly announced that it had passed a new family law that allowed women to divorce their husbands unilaterally. How was this possible? Two things appear to be critical in this event.
What is particularly important in Egypt's case is that a version of local religious culture was used as the basis for two things:
In short, the dynamic and fluid nature of culture was used as a basis for changing local values and practices as well a basis for reinterpreting international law. To the extent that local cultures are the lenses through which international law is understood and applied, it is unlikely that a globally homogeneous culture poses any real danger.
Data and Methods:
Ethnographic research on the strategies to diminish violence against women in the following UN forums:
Interviews were carried out with:
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Merry, Sally Engle. 2003. “Constructing a Global Law–Violence against Women and the Human Rights System.” Law and Social Inquiry 28:941-78.
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