The Public Law of Gender: From the Local to the Global by Katharine G. Young and Kim Rubenstein


335837852bc837b-261x361.jpg Author Katharine G. Young and Kim Rubenstein
Isbn 9781107138575
File size 6.2MB
Year 2016
Pages 630
Language English
File format PDF
Category politics and sociology


 

T H E PU BL IC L AW OF  GE N DE R With the worldwide sweep of gender-neutral, gender-equal or gender-sensitive public laws, in international treaties, national constitutions and statutes, it is timely to document the raft of legal reform and to analyse its effectiveness critically. In demarcating the academic study of the public law of gender, this book brings leading lawyers, political scientists, historians and philosophers together to examine law's structuring of politics, governing and gender in a new global frame. Of interest to constitutional and statutory designers, advocates, adjudicators and scholars, the contributions explore how concepts such as equality, accountability, representation, participation and rights depend on, challenge or enlist gendered roles and/or categories. These enquiries suggest that the new public law of gender must confront the lapses in enforcement, sincerity and coverage that are common in both national and international law and governance and critically and pluralistically recast the public/private distinction in family, community, religion, customary and market domains. K i m Ru be n s t e i n is a Professor in the ANU College of Law and was the Director of the Centre for International and Public Law with the Australian National University College of Law from 2006 through until the end of 2015, where she is also a Public Policy Fellow. K at h a r i n e G .   You n g is an Associate Professor at Boston College Law School, USA. Her fields of expertise include comparative public law and international human rights law. CONNECTING INTERNATIONAL LAW WITH PUBLIC LAW This six-volume series flows from workshops bringing public and international lawyers and public and international policy makers together for interdisciplinary discussion on selected topics and themes. The aim of the series is to broaden both public and international laws’ understanding of how these two areas intersect. Until now, international and public law have mainly overlapped in discussions on how international law is implemented domestically. This series is unique in consciously bringing together public and international lawyers to consider and engage in each other’s scholarship. Series editors: Kim Rubenstein is a Professor in the ANU College of Law and was the Director of the Centre for International and Public Law (CIPL) from 2006 until the end of 2015. Her current research projects are at the cutting edge of the intersection between public and international law. Her public law work spans constitutional and administrative law and also includes her expertise in citizenship law. Thomas Pogge is Leitner Professor of Philosophy and International Affairs and founding Director of the Global Justice Programme at Yale University, with part-time appointments at King’s College London and the Universities of Oslo and Central Lancashire. He writes and teaches on moral and political philosophy and Kant, with a special emphasis on global justice. Books in the series: Sanctions, Accountability and Governance in a Globalised World Edited by Jeremy Farrall and Kim Rubenstein Incentives for Global Health: Patent Law and Access to Essential Medicines Edited by Thomas Pogge, Matthew Rimmer and Kim Rubenstein Environmental Discourses in Public and International Law Edited by Brad Jessup and Kim Rubenstein Allegiance and Identity in a Globalised World Edited by Fiona Jenkins, Mark Nolan and Kim Rubenstein Legal Perspectives on Security Institutions Edited by Hitoshi Nasu and Kim Rubenstein The Public Law of Gender: From the Local to the Global Edited by Kim Rubenstein and Katharine G. Young T H E PU BL IC L AW OF  GE N DE R From the Local to the Global Edited by K I M RU BE NS T E I N A N D K AT H A R I N E G .  YOU NG University Printing House, Cambridge CB2 8BS, United Kingdom Cambridge University Press is part of the University of Cambridge. It furthers the University’s mission by disseminating knowledge in the pursuit of education, learning and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/9781107138575 © Cambridge University Press 2016 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2016 A catalogue record for this publication is available from the British Library Library of Congress Cataloguing in Publication data Names: Rubenstein, Kim. | Young, Katharine G. Title: The public law of gender : from the local to the global / edited by Kim Rubenstein, Katharine G. Young. Description: Cambridge; New York : Cambridge University Press, 2016. | Series: Connecting international law with public law | Includes bibliographical references and index. Identifiers: LCCN 2015039549 | ISBN 9781107138575 (hardback) Subjects: LCSH: Sex discrimination against women – Law and legislation. | Women – Legal status, laws, etc. | Women’s rights. | Sex discrimination – Law and legislation. | Constitutional law. | BISAC: LAW /Constitutional. Classification: LCC K3243.P83 2016 | DDC 342.08/78–dc23 LC record available at http://lccn.loc.gov/2015039549 ISBN 978-1-107-13857-5 Hardback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party Internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate. CONTENTS List of Contributors   page xi Series Editors’ Preface   xix Editors’ Preface   xxi Introduction: A Public Law of Gender?   1 Katharine G. Young Pa rt I   Constitutional Design and Gendered Outcomes 1. Feminisms and Constitutions   43 Vicki C. Jackson 2. Deference and Deferral: Constitutional Structure and the Durability of Gender-Based Nationality Laws  73 Kristin A. C ollins 3. Structural Remedies and the One Million Pesos: On the Limits of Court-Ordered Social Change for Internally Displaced Women in Colombia   99 Julieta Lemaitre and Kristin Bergtora Sandvik Pa rt I I   Constitutional Design in a Global Setting: The Challenge of the Local 4. Customary Law, Constitutional Law, and Women’s Equality  123 Susan H. Williams 5. Customising Equality in Post-Conflict Constitutions  147 L aura Grenfell vii viii Contents   6. Gender Equality in International Law and Constitutions: Mediating Universal Norms and Local Differences  170 Vijaya Nagarajan and Archana Parashar   7. Law as a Placeholder for Change? Women’s Rights and Realities in Afghanistan   195 Sari Kouvo and C orey Levine Pa rt I I I   Localising Participation and Voice through Law   8. Polygamy: Who Speaks for Women?   219 Beverley Baines   9. In Her Own Voice: Oral (Legal) History’s Insights on Gender and the Spheres of Public Law   246 Kim Rubenstein Pa rt I V   Governance, Representation and Gendered Measures 10. Good Governance, Gender Equality and Women’s Political Representation: Ideas as Points of Disjuncture  273 Sharon Bessell 11. Women in Government/Governance in New Zealand: A Case Study of Engagement over Forty Years  296 Margaret Wilson 12. Equality Without Freedoms? Political Representation and Participation of Women in Vietnam   318 Huong Nguyen 13. Gender, Justice and Statistics: The Case of Poverty Measurement  344 Sc ot t Wisor Pa rt V   Governance, Equality and Nondiscrimination 14. Gender and Racial Discrimination in the Formation of Groups: Tribal and Liberal Approaches to Membership in Settler Societies   367 Kirst y Gover Contents 15. Rethinking the Australian Model of Promoting Gender Equality  391 D ominique Allen 16. Gender, Governance and the Defence of the Realm: Globalising Reforms in the Australian Defence Force  413 Susan Harris Rimmer Pa rt V I   Global Governance and the Precepts of Public Law 17. Feminisms, Pluralisms, and Transnationalism: On CEDAW and National Constitutions   437 Vicki C. Jackson 18. Governing Victims’ Redress and Gender Justice at the International Criminal Court   465 L ouise Chappell 19. International Organisations as Employers: Searching for Practices of Fair Treatment and Due Process Rights of Staff   489 Osmat A. Jefferson and Innokenti Epichev 20. A Gender Critique of Accountability in Global Administrative Governance   514 Rohan Kapur and Kellin Kristofferson 21. Is This the Future We Want? An Ecofeminist Comment on the UN Conference on Sustainable Development Outcome Document  538 Kate Wilkinson Index  561 ix LIST OF CONTRIBUTORS Volume Editors K i m Ru be ns t e i n is a Professor in the ANU College of Law and was the Director of the Centre for International and Public Law with the Australian National University (ANU) College of Law from 2006 until the end of 2015. She is also a Public Policy Fellow at ANU. A graduate of the University of Melbourne and Harvard University, Kim’s public law work spans constitutional and administrative law and also includes her expertise in citizenship law. Her international law work focuses on the status of nationality. In 2011 and 2012, she was also inaugural Convenor of the ANU Gender Institute. Kat ha ri n e G . You n g is Associate Professor at Boston College Law School. Her recent book, Constituting Economic and Social Rights (2012), appears in the Oxford Constitutional Theory series. Katharine completed her doctorate in law at Harvard Law School and law and arts degrees at the University of Melbourne. She served as Associate to the Honourable Michael Kirby AC CMG at the High Court of Australia and has legal experience in New  York, Melbourne, the United Nations and a public interest organisation in Accra, Ghana. Her fields of expertise include comparative public law and international human rights law. Other Contributors D o mi n i qu e A l l en is Senior Lecturer in the School of Law at Deakin University. She has published widely on antidiscrimination law and equality both in Australia and overseas. With Neil Rees and Simon Rice, she is the co-author of Australian Anti-Discrimination Law (Federation Press, 2014). She completed her doctoral thesis on the effectiveness of Australia’s antidiscrimination laws at the University of Melbourne. xi xii LIST OF Contributors B eve rl ey Ba ines is Professor of Law at Queen’s University, Canada. She has co-edited two books: The Gender of Constitutional Jurisprudence with Ruth Rubio-Marín (Cambridge University Press, 2005) and Feminist Constitutionalism: Global Perspectives with Daphne Barak-Erez and Tsvi Kahana (Cambridge University Press, 2012). Bev’s current research examines the constitutionality of state interference with the equality rights and religious freedom of women in Canada, focusing specifically on issues raised by criminalising polygamy, banning the niqab and restricting faith-based family law arbitrations. Sha ro n B e s se l l is Associate Professor and Director of the Children’s Policy Centre in the Crawford School of Public Policy, the Australian National University. Her research interests include women’s political representation; gendered and generational aspects of citizenship; and the influence of the international human rights framework on domestic policy. L ou i se Cha ppel l is a Professor in the School of Social Sciences at the University of New South Wales and a recent Australian Research Council Future Fellow. Louise’s research interests are in the areas of women’s rights; gender, politics and institutions; and comparative federalism and public policy. Her current research project focuses on gender justice at the International Criminal Court, with the results published in The Politics of Gender Justice at the International Criminal Court:  Legacies and ­Legitimacy (2015). K ri st i n A .   C ol l in s is the Peter Paul Career Development Professor at Boston University School of Law. Her work has appeared in the Yale Law Journal, Duke Law Journal, Vanderbilt Law Review, and Law and History Review, among others. Her current research focuses on the role of family law and race in the administration and development of American citizenship and immigration law, with particular attention to family law as a state-building tool. Kris’s chapter in this volume was written in part with the support of a National Endowment for the Humanities LongTerm Fellowship at the Massachusetts Historical Society, which she gratefully acknowledges. I n n ok e n t i Epic h ev has a bachelor’s degree in psychology from Griffith University, and during the study on the International Labour Organisation Administrative Tribunal, he worked as a research assistant at Queensland University of Technology. His research interests lie in the fields of behavioural neurochemistry and social psychology. LIST OF Contributors xiii K i r st y G ov e r is Associate Professor at Melbourne Law School. Her research and publications address the law, policy and political theory of indigenous rights, institutions and jurisdiction. She is interested in the role played by ‘indigeneity’ in the constitutionalism of settler societies, and in the importance of indigenous concepts of law and politics in settler state political theory and international law. Kirsty is the author of Tribal Constitutionalism:  States, Tribes and the Governance of Membership (2010). She is currently working on a book entitled When Tribalism Meets Liberalism:  Political Theories of International Law (forthcoming), examining the ways in which indigenous self-governance influences the development of international law and international legal theory. She is a graduate of the New York University JSD Doctoral Program, where she was an Institute for International Law and Justice Graduate Scholar and New Zealand Top Achiever Doctoral Fellow. L au r a G re n f el l is Associate Professor at Adelaide Law School. She teaches and researches in public law, has a particular interest in constitutional law, comparative constitutional law, human rights law and post-conflict justice. She is the Director of the Adelaide Law School’s Human Rights Internship Programme. Before joining academia in 2002, Laura practised constitutional law with the Crown Solicitor’s Office of South Australia and was an associate in the Supreme Court of South Australia. She holds an LLM from the University of Toronto and a Doctorate of Philosophy from the Australian National University. Her Ph.D. thesis was entitled ‘The Relationship Between Legal Pluralism and the Rule of Law in Timor-Leste and South Africa’. V i c k i C. Jac k son is the Thurgood Marshall Professor of Constitutional Law at Harvard Law School. The New York Times has described her as ‘an authority on state–federal questions’. Jackson received her B.A. summa cum laude from Yale College in 1972. She earned her J.D. from Yale Law in 1975, where she was an editor of the Yale Law Journal. She served as a clerk for Thurgood Marshall. Jackson was an associate and then partner at the firm of Rogovin, Huge & Lenzner in Washington, D.C. She served as Deputy Assistant Attorney-General in the Office of Legal Counsel at the U.S. Department of Justice. She taught and held several administrative positions at Georgetown University Law Center from 1985 to 2011. In 2012, the United States Supreme Court appointed Vicki as amicus curiae in United States v. Windsor to argue an unrepresented position relating to the legal standing of two of the parties. Her publications include the book Constitutional Engagement in a Transnational Era (2010). xiv LIST OF Contributors Osmat A .   J ef f er s on is a Professor of science, technology and law at Queensland University of Technology. She holds a Ph.D.  from Cornell University in plant sciences and a master’s degree in international law from the Australian National University. For more than a decade, she managed and participated in science-based development projects in Latin America and Asia. Since 2005, Osmat has also worked with Cambia, a nongovernmental organisation (NGO) that aims at democratising problem solving by using science and technology as public goods. Her law research interests cover transparency in the justice system at the international workplace and in international organisations in particular. She co-chaired a committee on accountability of international organisations at the American Branch of International Law Association in New  York from 2011 to 2014. Her recent publications can be accessed at http:// eprints.qut.edu.au/view/person/Jefferson,_Osmat_Azzam.html. Roha n Ka p ur is a graduate of the Australian National University College of Law and holds master’s degrees in international law and in diplomacy. Rohan was formerly a public defender at the Australian Capital Territory (ACT) Legal Aid Commission and a senior legal adviser at the ACT Justice and Community Safety Directorate. He is now a senior manager of industrial relations in the ACT Chief Minister, Treasury and Economic Development Directorate in Canberra, Australia. S a ri Kou vo is an adviser on human rights and gender at the European External Action Service and co-founder and board member of the Afghanistan Analysts Network. Her previous engagements include Senior Program Fellow at the International Centre for Transitional Justice, researcher at Amnesty International, Human Rights and Rule of Law Adviser to the European Union (EU) Special Representative for Afghanistan and researcher and lecturer at Gothenburg University. Sari holds a doctorate and associate professorship in international law from Gothenburg University (Sweden). She has held visiting fellowships at the NATO Defence College (Italy), Kent University (the United Kingdom), Åbo Academy (Finland) and the Australian National University. She has published extensively on Afghanistan, international law and gender-related subjects, including an edited volume on gender and international law for Hart Publications and a four-volume companion on gender and international law for Routledge. K e l li n Kri stof f er s on is a graduate of the Australian National University College of Law and is currently a teacher in the Graduate Diploma LIST OF Contributors xv in Legal Practice programme through the ANU Legal Workshop and a solicitor at Baker Deane & Nutt Lawyers. Ju li eta Le ma it re is Associate Professor of Law at the Universidad de los Andes in Bogotá, Colombia, and PRIO Global Fellow. Her research examines the meaning and uses of law for social movements, particularly in violent contexts. She holds a law degree from the Universidad de los Andes, an MA from New  York University (gender and religious studies) and an SJD from Harvard Law School (law and social theory). Recent books in Spanish are El Derecho Como Conjuro [Casting Law as a Spell] (2009), La Paz en Cuestión [The Peace at Hand] (2011), La Quintíada: Rebelión Indígena en el Cauca 1912–1925 [The Quintiada: Indigenous Rebellion in the Cauca 1912–1925] (2013) (all published 2014). Julieta has also published articles and book chapters in English, including in the ICON – International Journal of Constitutional Law, SUR – International Journal on Human Rights, The Harvard Human Rights Journal, Feminist Legal Studies and The Law and Society Review. C orey Lev i n e is a human rights and peace-building policy expert, researcher and writer with a specialisation in gender. For more than fifteen years, she has worked in conflict and post-conflict areas, including Afghanistan, where she was the Gender Adviser for the United Nations Assistance Mission in Afghanistan (UNAMA). Corey has produced a number of academic, policy and opinion papers and articles, including work for The Feminist Legal Studies Journal as a co-author with Sari Kouvo. She has a chapter on gender and transitional justice in The Search for Lasting Peace: Critical Perspectives on Gender-Responsive Human Security (Ashgate Press, 2014). V i jaya Nag a r aja n teaches and researches law at Macquarie University. Her interests are in sociolegal analysis of competition law and policy, corporate governance and gender justice. She has published widely and undertaken several consultancies in these areas. Vijaya’s recent publication is Discretion and Public Benefit in a Regulatory Agency (2013), and she is currently undertaking a consultancy on gender and private sector reform in the Solomon Islands for the Asian Development Bank. Hu on g N g u y en worked as a consultant on gender and constitutions at UN Women in 2015. She received a Ph.D. in law and democracy with the Best Dissertation Award in 2014 from Indiana University Maurer School of Law, where she was also a research fellow at the Center for Constitutional Democracy from 2008 to 2014. Her research focus includes xvi LIST OF Contributors gender and constitutions, constitutional design from a multidisciplinary perspective, judicial review in new democracies and Vietnamese constitutionalism. Huong was educated in Vietnam and France before coming to the United States. She is also active in human rights advocacy and serves as a Vietnam country specialist for Amnesty International USA and as a co-founder and adviser of the 88 Project, an online digital media project for freedom of expression in Vietnam. A rc ha na Pa r asha r joined Macquarie University in 1990 as a Lecturer in Law. Her educational background includes a BSc Hons. Botany, LLB Faculty of Law and LLM Faculty of Law from the University of Delhi. Her Ph.D. was awarded by the Australian National University. In 2001, Archana became an Associate Professor in law. Her research is interdisciplinary in nature and has spanned a very wide area of contemporary legal theory and the relevance of contemporary theory for women in the Third World. She has explored the implications for social justice in the contemporary post-structural theory, contemporary legal theory and legal education literature. Additionally, Archana has published in a significant number of nonlaw publications. Su s a n Ha rris Rim m er is Associate Professor at Griffith University Law School and an Adjunct Reader at the Asia-Pacific College of Diplomacy at the Australian National University. In 2015, she was chosen as an Australian Research Council Future Fellow. She is the author of Gender and Transitional Justice:  The Women of Timor Leste (2010) and was chosen as the winner of the Audre Rapoport Prize for Scholarship on the Human Rights of Women for 2006. She was previously the Manager of Advocacy and Development Practice at the Australian Council for International Development (ACFID), the peak body for Australian development NGOs. She has previously worked for the UN High Commissioner for Refugees, the National Council of Churches and the Parliamentary Library. She has been a board member of the UN Women National Committee Australia and has previously been president of the voluntary NGO Australian Lawyers for Human Rights. K ri st i n B e rg tor a S a ndv ik is the Director for the Norwegian Centre for Humanitarian Studies, which aims to promote and facilitate critical and relevant research on key humanitarian issues. Her research focuses on the interface between international law and humanitarianism, technology and violence. Her research on indigenous groups and internally displaced women in Colombia investigates how political organising LIST OF Contributors xvii and legal mobilisation shape the everyday life of marginalised groups in the midst of violent conflicts. Kat e W i lki n s on is Lecturer in Law at Leicester De Montfort University Law School and a doctoral candidate at the University of Sheffield School of Law. Her research interests include feminism, international law, sustainable development and securitisation. More specifically, her research uses ecofeminism to examine the implications of environmental security on the development of international environmental law. Susan H. Williams is the Walter W. Foskett Professor of Law and the director of the Center for Constitutional Democracy (CCD) at the Indiana University Maurer School of Law. She has also been a visiting faculty member at the University of Paris II and a visiting fellow at Wolfson College, Cambridge University, and at the European University Institute in Fiesole, Italy. Professor Williams is the author of many articles and book chapters and has produced two books:  as author, Truth, Autonomy, and Speech: Feminist Theory and the First Amendment (2004); and as editor, Constituting Equality: Gender Equality and Comparative Constitutional Law (Cambridge University Press, 2009). In her work with the CCD, she has acted as a constitutional adviser to the governments of Liberia and South Sudan and to democratic activists and women’s organisations in Burma, Libya, Vietnam and Cuba. Her scholarship focuses on issues related to gender equality, constitutional design and feminist theory. M a rg a ret W i l s o n is Professor of Law and Public Policy at the University of Waikato. She served as the Foundation Dean of Waikato from 1990 to 1994. Margaret was a Member of Parliament from 1999 to 2008. Her former ministerial positions include Attorney-General, Minister of Labour and Speaker of the New Zealand Parliament. Other positions held include that of Director of the Reserve Bank, Law Commissioner and President of the New Zealand Labour Party. Margaret’s publications include Culture, Rights and Cultural Rights (Huia Press, 2000); Justice and Identity:  Antipodean Practices (eds Margaret Wilson and Anna Yeatman, Bridget Williams Books and Allen & Unwin, 1995); and Labour Party in Government 1984–1987 (Allen & Unwin, 1989). Scott Wisor is a Lecturer in and Deputy Director of the Centre for the Study of Global Ethics, the Department of Philosophy, the University xviii LIST OF Contributors of Birmingham. His first book is Measuring Global Poverty:  Toward a Pro-Poor Approach (Palgrave Macmillan, 2012). He has published on a range of topics, including the resource curse, feminist methodology, international trade, global poverty, development ethics and global justice. S E R I E S E DI T O R S ’ PR E FAC E The idea for this series began in June 2005, when Kim Rubenstein applied for the position of Professor and Director of the Centre for International and Public Law at the Australian National University (ANU) College of Law. The Centre is recognised as the leading Australian academic centre bringing together public lawyers (scholars and practitioners in constitutional and administrative law broadly, but also specific areas of government regulation) and international lawyers from around the world. Established in 1990 with its inaugural director, Professor Philip Alston, the impact of the Centre and its work can be seen further at law.anu.edu .au/cipl/. In discussing with the law faculty ideas for the Centre’s direction, Kim raised the concept underpinning this series. Each of the volumes flows from workshops bringing public and international lawyers and public and international policy experts together for interdisciplinary discussion on selected topics and themes. The workshops are organised with the following goals. First, they aim to attract both established scholars and outstanding early scholars. Second, at each of the workshops participants address specific questions and issues developing each other’s understandings and knowledge about public and international law and policy and the links between the disciplines as they intersect with the chosen subject. Third, papers are discussed and reviewed at the workshop collaboratively, then after the workshop the papers are finalised for the final editing phase for the overall manuscript. This phase includes internal peer review by participants themselves, as well as external and anonymous peer review from scholars who have not attended the workshop. The series seeks to broaden understanding of how public law and international law intersect. At the time of the initiation of the series, international and public law have mainly overlapped in discussions on how international law is implemented domestically. In the interim decade, a burgeoning literature has developed with a focus on intersecting issues in comparative public law, global administrative law and the selective xix

Author Katharine G. Young and Kim Rubenstein Isbn 9781107138575 File size 6.2MB Year 2016 Pages 630 Language English File format PDF Category Politics and Sociology Book Description: FacebookTwitterGoogle+TumblrDiggMySpaceShare With the worldwide sweep of gender-neutral, gender-equal or gender-sensitive public laws in international treaties, national constitutions and statutes, it is timely to document the raft of legal reform and to critically analyse its effectiveness. In demarcating the academic study of the public law of gender, this book brings together leading lawyers, political scientists, historians and philosophers to examine law’s structuring of politics, governing and gender in a new global frame. Of interest to constitutional and statutory designers, advocates, adjudicators and scholars, the contributions explore how concepts such as equality, accountability, representation, participation and rights, depend on, challenge or enlist gendered roles and/or categories. These enquiries suggest that the new public law of gender must confront the lapses in enforcement, sincerity and coverage that are common in both national and international law and governance, and critically and pluralistically recast the public/private distinction in family, community, religion, customary and market domains.     Download (6.2MB) State Immunity In International Law The Evolution Of Eu Law, 2 Edition The Return Of The Public In Global Governance Citizenship Education in China: Preparing Citizens for the “Chinese Century” Governing and Governance in France Load more posts

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