Document Type

Article

Publication Title

Hastings Law Journal

Volume

57

Publication Date

2005

Keywords

CEDAW, Convention on the Elimination of All Forms of Discrimination Against Women, internationalism, human rights, women's rights, culture and law

Abstract

This Article challenges the culture clash view of human rights law, which posits a clash between Western countries' presumed respect for women's human rights and non-Western countries' presumed rejection of these rights on cultural and religious grounds. Since the September 11 terrorist attacks, this view has taken on new significance, in light of the perceived civilizational divide between the Western and Muslim worlds. The Article calls into question this view, by examining cultural stereotypes of women used to oppose U.S. ratification of the Convention on the Elimination of All Forms of Discrimination Against Women. My reading, therefore, is at odds with the conventional understanding that U.S. failure to ratify the Convention based on constitutionalism (rather than culture). A fresh look at the ways constitutionalism has masked cultural assumptions about women is particularly urgent given recent concerns over clashes between gender and culture in the evolving constitutional frameworks of Afghanistan and Iraq. Unlike these countries, the U.S. has largely been able to avoid international criticism of its women's human rights record by veiling traditional cultural assumptions about women behind the claim of constitutionalism. Drawing on John Rawls's veil of ignorance idea as a heuristic device, the Article uses the veil metaphor to call for a more transparent and participatory process of implementing human rights law in the U.S. (and abroad). Thus, this Article builds on my earlier work criticizing the current structure of international law for its traditional reliance on opaque notions of the nation-state, which operate to exclude women.

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