Welcome to the new books network. So hello and welcome to new books in the law. Where today we are joined by Professor Halen Tigruja. I'm going to start again.
Yes. Tigruja. Hello and welcome to new books in law. Where today we're joined by Professor Halen Tigruja, who is a French jurist and international law expert.
She is Professor of Public International Law at Ex-Mercy University. And since 2019, she has been a member of the Human Rights Committee at the United Nations Body Insurance Monitor in Compliance with the International Government on Civil and Political Rights. Today we are going to be discussing the book, Woman's Rights and the Elimination of Discrimination, co-published by Professor Tigruja and Professor Marit Janetra Yarebog, published in 2016 by Brolin Nynhoth. Halen Tigruja, welcome to the new books network podcast.
Welcome and thank you for organizing this podcast. I'm really pleased to have this opportunity to discuss about this very important book. Thank you very much. Yes, it's our pleasure.
So could we start off with you providing an overview of the book and its main objectives? Yeah, with pleasure. I mean, the book is a collective, as you say, the collective book of different chapters. And it's based on a collective research led in 2014 within the AIG Academy of International Law, so at the AIG during the summer of 2014.
And Professor Yarebog and I gathered young international lawyers working on women's issues under different perspectives. And the idea of the book is really to gather this perspective, to cross these different views on this very important topic, dealing with women's human rights and elimination of discrimination. And the main objective was not only to provide an assessment of the international legal background dealing with discrimination against women, but also giving more visibility on new perspective, I would say, or also invisible issues dealing with discrimination against women or different kinds of discrimination against women. So I hope the book and the outcome of the book was able or is able to provide such an intersective view on elimination of discrimination.
Wonderful. And how did you decide on the structure of the book and the selection of topics covered in each chapter? The decision, I mean, was really based also first on our idea of my colleague and I. I mean, our idea on how to make this issue and very complex issue of discrimination much more visible and the complexity of this issue and how to analyze the stereotypes at the root of intersecting and multiple discrimination against women, and also based on the proposals by these young international researchers.
So we sent a sort of call for application, especially insisting on our idea of making this intersected discrimination much more visible. And we received extraordinary proposals to deal with issues. We were not necessarily my colleague and I, very familiar with such as, for instance, Islamic feminism or self protection or, you know, women's rights in terms of armed conflict. So it was really important for us to bring all these perspectives in the collective research.
And could you explain the importance of integrating socioeconomic conditions, culture, and tradition and religion when discussing women's human rights? Yeah, of course. When we work on discrimination against women, one of the thing that is really striking is that actually it's extremely difficult to understand, as I said, stereotypes or the roots of discrimination. I mean, it's impossible actually to say that there is one cause of discrimination.
So we agreed on the fact that actually there are intersected factors of discrimination, multiple factors of discrimination. And we also agreed on the fact that we would not insist on one of these factors precisely because when we work on this issue, it's really clear that it's, I mean, gender discrimination is fed by social and economic situation of the person, the health situation of the person, ethnic also origin of the person, cultural tradition and so on. So one of the ambitions of the book was precisely to bring all these perspectives together, to try to capture, but we know that it's impossible, but to try to capture what is at stake when we talk about the roots of discrimination against women. So that's why for us it was impossible to publish something without integrating these different dimensions.
And in chapter two discusses the state's international obligations towards women's rights. Could you elaborate a bit more about these obligations that states are subjected to currently and may be their significance as well? Yes, so it's quite recent actually to consider that women's rights are human rights. So it was really when I said that it's quite recent, I mean, it's the wholeness started in, I would say, beginning of the 90s.
So it's quite recent based on the history of international human rights, human rights law. Before the beginning of the 90s, the idea was actually that there's absolutely no need to single out the situation of women. They are covered by international human rights law. So we do not need specific international obligations or we do not need to have a specific instrument and so on and so forth.
So of course, there was this UN Convention on the Elimination of Discrimination Against Women adopted in 1979, but it was not again before the 90s. It was really not a very, I would say, popular topic of research. But actually, especially from the 90s and it's related to also the wholeness of around the use of sexual violence against women as a weapon of war, the international community, international organizations and states started to realize that actually states have to do more when dealing with discrimination, discrimination based on gender or discrimination against women. So we cannot, I mean, the states have specific obligation.
Not because women are vulnerable people. So it's really something or so that has to be very clearly understood and the book also insists on that aspect, that the specific states obligation are not based on the idea that women would be like minors or would be vulnerable people. But actually, and it goes back to your first question based on some social condition, economic condition, it's true that they are placed in the situation, in many, many countries, in the situation of vulnerability. So states have the obligation first to make this situation of vulnerability much more visible and they have the obligation to specifically tackle the situation of vulnerability.
And in the book, the question, are women men like any other is posed, could you explain this concept and the implications for understanding non-discrimination? Yeah, so it goes back to the question of vulnerability and it's really something very important also to highlight. Because sometimes, and before the 90s, the mainstream discourse actually was to say that men are like women and there's absolutely no need to have specific instruments, to have specific obligations or to have an international low applicable to women. But actually, as I say, it's not true and it's not the reality for different factors based on their situation of vulnerability dealing with poverty, dealing with some cultural elements, traditions and so on and so forth.
So the very significant element for states to be considered and to be understood is indeed that we have this, of course, goal of equality. Men and women are equal and are born equal. But in the meantime, women and girls are placed for different reason again, in really a situation of specific vulnerability to different violations of their rights. So states have to work with this.
And they cannot do as if women were placed at the same level of enjoyment and exercise of their rights as men. So they have to really work on these conditions of vulnerability, political condition, social condition, economic condition of vulnerability. And did you discuss about the idea of women having the right to self-protection and how contemporary international law supports all hinders that right? It's an interesting question because indeed, as you say, the book was published in 2016.
And this chapter on self-protection was proposed in 2016, or when we met at the egg in 2014, as really something very new. And I was really excited by this idea of women's rights to self-protection, especially in case of failure by states, state failure of the national or the domestic background or legal background or legislative background. I have to say that eight years after the publication of the book, I do not see in practice in the legislative framework, international legislative framework or case law, international case law, a lot of progress, a lot of improvement in this recognition of right of movement to self-protection. So I think it's still a very important idea.
But yes, maybe we would need more time and extra eight years to see really improvement and progress in terms of acknowledging the side of women's agency in their self-protection. OK, and any efforts that you know of to support this right, or is there just no work being done towards this? Yeah, I mean, I do not see any, even I would say, at the UN or at the regional level, so within the Council of Europe, African Union, I do not see any support or strong support in favor of this idea. Maybe the exception would be within the organization of American states and the jurisprudence of the Inter-American Court of Human Rights.
And it's not, I mean, in the book, the chapter is written by a very brilliant Mexican lawyer. And actually she used the Mexican example and some important case law, some important judgments of the Inter-American Court of Human Rights. And maybe if there is an evolution, the evolution would come from this part of the world. That's very interesting.
So in chapter three, the evolution and biasist of feminist challenges to international law are discussed. What are some of the key feminist challenges and how have they evolved over time? It was also another very exciting discussion we had in 2014 at the AIG and in the book, in the published version of the book. Actually, one of the challenges is first, that there are many, many trends of feminist, of legal feminist thought and legal feminist writings and doctrines.
So one of the first challenge I would say is to try to have a sort of harmonized and feminist discourse when it's about women's rights. And even today, there is absolutely no universal feminist perspective. I mean, there are many different feminist perspectives, but there are no one voice, one feminist voice talking for all women in the world. I mean, it's normal, I mean, it's fair because it's extremely difficult to say that the needs of women are the same in different parts of the world.
And regardless of, again, the economic condition, whether the woman live in the north or in the south, et cetera, et cetera. So that's one of the challenges faced with by feminist trains or voices. The other maybe is that so far, it's still quite difficult to see, and I remember that it was something discussed with the researchers. It's still difficult to see the impact of feminist thought on the international institutions, on the decision-making process at the international level, whether it's at the UN or again at the regional levels.
It's moving very, very slowly. But the link between feminist theories and gender representation, for instance, in international institutions or where the decision-making process is important, is still extremely low and is still a challenge in 2024. And you mentioned the Convention on the Elimination of Discrimination Against Women that came into force in 1979. In Chapter 4, the approach that that convention takes towards the elimination of discrimination against women is discussed.
Could you maybe give us an overview of the strength and limitations of this convention? Yeah, for sure. I think the strength of the convention is really the focus on stereotypes. So it might seem very basic.
But for me, the most difficult aspect when we talk about elimination of discrimination, not only gender discrimination, but any kind of discrimination actually, is to understand the stereotypes at the basis of discriminatory discourse, practice, behavior, and so on. Sometimes it's even not functions. I mean, we have our own limits and own stereotypes, and we are not aware of this. So really, one of the most important elements of the pseudo-convention on the Convention on Elimination of Discrimination Against Women is to make this fight against stereotypes as an international obligation.
And it triggers sub-obligations. First, for instance, the obligation of the state to make these stereotypes really visible. For instance, there are many, many decisions, individual communications of the cedo of the committee in charge of the Convention on Elimination of Discrimination Against Women dealing, for instance, with stereotypes at the basis of domestic legislation dealing with rape or dealing with sexual violence. And it's very interesting, because in almost all countries in the world, we see that a lot of these legislations are based on stereotypes.
Stereotypes of what is a good victim or stereotypes on what is a consent, et cetera, et cetera. So the work of the cedo is really to first make these stereotypes visible in order to have a proper public policy against elimination, against discrimination, and so inefficient policy and effective policy in fighting against discrimination. So I think it's really one of the most important elements of the Convention. Now, I mean, indeed, there are some limitations, and maybe one of the, I would say, structural limitation, and again, it goes back to one of your previous questions, is that a lot of states that have ratified the Convention have also made some reservations.
And they have made some reservations, very broad reservations, explaining that the Convention on Elimination of Discrimination Against Women only applies when it's in conformity to the traditions of the state, to the culture of the state, or to the religion of the state. So of course, in practice, it deprives the Convention from any form of efficiency at the domestic level. So I'm not sure in 2024, we could say that from a universal perspective, the Convention has really been a transformative tool. So maybe not in places where it was really much needed.
So that would be, for me, the most important limitation of this Convention. And it's been around 45 years since that Convention came into force. Could you give us an overview of the progress that has been made since that Convention came into force? Yeah, I think the most important area where there was significant progress, and here the Convention was really transformative, is about sexual and gender-based violence.
Because again, I mean, many states, and it's really a universal point or universal concern, but many states have really traditional approach to sexuality, sexual violence, the morality, and so on and so forth. So I think one of the most important added value of this Convention was really to raise the wellness on these stereotypes, as I mentioned. And the very bad impact these stereotypes have on the way a state does fight, for instance, against sexual violence, or also not necessarily sexual violence, but domestic violence. And for instance, domestic violence, even today, in many countries, it's still considered as a sort of private topic.
So a topic where the state should not intervene because it's a family issue, it's a private issue, it's an intimate issue. And the interest of the Convention on Elimination of Discrimination Against Women is really to say to states, no, you have actually the obligation to also enter into this private sphere or intimate sphere to address domestic violence, because it's normal to have this type of violence in between two persons, for instance. And in chapter five talks about integrating gender persecution into the refugee definition, how has the reconceptualization impacted the protection of women under international refugee law? Yeah, it's really an important point.
And here I see also progress. So there has been some progress since the book was published in 2016. The chapter when published was really also sort of innovative, innovative chapter, and really visionary chapter, I would say. But now in 2024, it's interesting because the concept of persecution that we have in the Geneva Convention of 1951 on the statues of refugee integrates now, not only political persecution, I mean, I would say traditional political persecution or persecution based on religious origin or political activities.
But now it also integrates, for instance, domestic violence or other kinds of sexual and gender based violence that were totally ignored in 1951 when the refugee convention was adopted. So again, it's a slow motion. It's really, we see really slow progress, but we see really important progress. So it's slow, but it is really one of the areas also where we can be quite optimistic, I would say.
And chapter six is a fascinating chapter that compares Sharia law with women's rights. What would you say are the main findings of this comparative approach and what implications do they have for women's rights under Islamic law? I agree with you. It's really, for me, one of the most fascinating chapter, precisely because of before working on this issue, because of my lack of knowledge.
So I learned a lot, and I learned a lot, especially from this chapter and from the author of this chapter. And it's important because we have also, I mean, in the mainstream discourse on women's rights, there is also a stereotype, and we have to acknowledge this. And there is a stereotypes on the incompatibility of Sharia with women's rights. And it's really sort of mainstream discourse.
And Sharia is absolutely not protective of women's rights. And we cannot have, for instance, Islamic feminist theory on women's rights or human rights. And actually, the chapter does address this, stereotypes and shows and demonstrates that actually it's a country. So we have, I mean, we cannot say that Sharia does not protect human women's rights or that inequality between men and women is based on or is rooted on the Sharia law.
So the chapter is really subtle because it tackles this stereotype, especially from, you know, shared by Western doctrine and countries and so on. And it also sheds light to this Islamic feminist approach to women's rights. So I really learned a lot again, because I was ignorant of this trend and a school of thought of feminism. And we have to hear also these voices.
Yes, of course. And so you discussed the right to self-protection in regards to women's rights, particularly when it comes to facing poverty. Could you elaborate a bit on that? Yeah, so poverty is really the blend spot, I would say, of international human rights law.
As you probably know, international human rights law is more focus on civil and political rights. So in general, even I have to say, the human rights committee, I'm a member of, as you recall, do not work or do not make visible the aspect of poverty, the social, economic condition of people and in general, and women in particular. So here, the chapter actually is really focused on this idea that we cannot ignore this poverty element when we talk about enjoyment and exercise of human rights in general, women's rights in particular. But the problem is that states obligation when dealing with poverty are not very well developed and they are not very well, I would not say established in international law, but they are not very well detailed in international law.
So the idea of the chapter is to try to demonstrate and to make a point on this right to self-protection of women's living in situation of poverty or extreme poverty, especially when the state do a proper job or do not ensure life with dignity, access to dignified conditions of living. So the idea of the chapter would be to say that in case of failure of the state or insufficient policy dealing with poverty or fighting against poverty, yes, women have the right to self-protection. And it's interesting because it's also linked to individuals right to self-determination. But as I said, it's in positive law, it's extremely difficult to find even today in 2024 to find legal basis for such a claim.
So I really like the idea. But we have a very state-centric international human rights law. So it's really a very new perspective on human rights and individuals own agency. But even today it does not fit very well with an old-school approach to international human rights law focused on states as obligations providers.
OK. And chapter 9 explores the intersection of cultural traditions and economic inequalities in family laws. You mentioned family laws being one of the justifications for reservations in the Convention for the Elimination of Discrimination Against Women. Could you tell us a bit more about how this convention navigates these complex intersections?
Yeah. The chapter 9 is also very interesting because, again, it's focused on stereotypes that with some very precise issues dealing with the right to marry, the right to divorce, grout and shape on children, ownership rights, and so on and so forth. So equality of spouses. And, again, it's difficult to make the distinction between cultural, tradition, and religion.
Sometimes states, especially going to use the experience of the Human Rights Committee when we ask states about limitations of women's rights in terms of family law, in general states, mix up culture, tradition, and religion. And it's extremely difficult to understand where, from where the limitations of women's rights come. So, yeah, the chapter tries to really understand and make more concrete and more visible this intersection of the cultural, tradition, and religious rhetoric to justify, actually, very vulnerable position of women in a society. And, again, unfortunately, it's really universal concern.
So the chapter is focused on some concrete example that it's really universal, even in states without any strong religious tradition. I mean, when it's not based on religion, it's based on culture, and when it's not based on culture, it's based on traditions. Yes, and you've mentioned the prohibition of violence against women in armed conflict as one of the areas that has seen the most development. Chapter 12 discusses this in detail.
Could you tell us a bit more about the legal frameworks that exist in addressing sexual violence and individual criminal responsibility? Yes, so it's quite a new, I mean, recently new, I would say, a topic in international law, this idea that, indeed, when we talk about sexual violence, we talk, actually, not only about grave and massive violations of human rights, but we also talk about international crimes. And that's what the chapter explores. So, the combination of human rights, humanitarian law, and international criminal law, actually.
And how these three fields of international law do interact to criminalize at the international level, but also at the domestic level, sexual and gender-based violence during situations of armed conflict, but also more broadly, I would say, situation of emergency. When the book was published, there were already some important judgments, especially delivered by the former tribunal, by the international tribunal on former Yugoslavia, but also tribunal for Rwanda. So, there were some important judgment building with, for instance, sexual slavery as crimes against humanity or rape as war crime and crimes against humanity, but of course, now we are in 2024, and it's indeed where I can see at the international level the most important improvements, because now we have also some very important judgments of the international criminal court dealing, for instance, with forced marriage as a form of international crime, so war crime and or crimes against humanity, post-pregnancy, sexual slavery again and so on and so forth. So, it's really where indeed the improvement is the most I would say visible.
And I may be putting you on the spot here a bit, but could you tell us which judgments were very so transformational in this area? Yeah, I mean, the ongoing, so prosecutor versus ongoing, judgment, Dominican, judgment, so it was delivered by the International Criminal Court, and very important actually, because it was the first time the International Criminal Court considered that forced marriage was an international crime, and especially war crime and crimes against humanity, but also based on forced marriage, forced pregnancies. And so the concept and the crime of forced pregnancy is in the statute of the International Criminal Court, but it was the very first decision, and it was of course extremely important to recognize that when we talk about sexual violence during an armed conflict, we do not only talk about rape, but also other form of sexual violence. So I think, yeah, ongoing definitely is one of the most important cases addressing sexual violence during armed conflict.
And chapter 13 of the book mentions the recognition and enforcement of foreign orders and that protecting woman against domestic violence. Could you tell us a bit more about maybe, yeah, just about that chapter? Yeah, so here it's also another interesting perspective because the chapters we have discussed about are more focused, I would say, on a public international, international law approach. So states obligation and international treaties and how states do apply international treaties in their domestic system.
This chapter is a bit different. It's about private international law. So how a domestic judge is about to apply the decision adopted by another state in its domestic system. And so the chapter is really based on this approach of private international law.
And yeah, the domestic tribunal's obligation to apply or to reject the implementation of an order dealing with domestic violence or dealing with a family issue. The chapter is focused on a lot of examples dealing with especially children, guardianship, for instance. I do not see a lot of progress or evolution since the publication of the chapter. But one thing is sure is that actually now domestic judicial authorities are more and more aware of this domestic violence not being a private issue, as I said.
Now there are more and more domestic traumas that would not implement a foreign order because they indeed are aware of the fact that when it's about domestic violence, it's about a human rights issue. It's not about a private issue. And it's really something that is, I would say, encouraging. And it's not only due to the work of the or the effect or impact of the Convention on Elimination of Discrimination Against Women, but it's also the impact of the Istanbul Convention.
So it's an international treaty adopted in the framework of the Council of Europe in 2011. So it only concerns the member state of the Council of Europe. So the 46 members states of the Council of Europe. But still, I mean, now we have this wellness of domestic violence not being a private question, which is very important.
Yes. And I have a couple of final closing questions. So I'm wondering what do you hope that the readers take away from the book regarding the future of women's human rights and the elimination of discrimination? Maybe two things.
First, we can never take progress or improvement, or grant it. It's really, really a continuous fight, as I say, to make stereotypes visible, to tackle also conservative discourse and so on and so forth. So it's really important to keep this in mind, because especially, I mean, again, in 2024, we see that when there is, for instance, authoritarian regime, populist regimes, in general, women's rights are really the first target of this kind of authoritarian or populist regime. So it's really important to keep in mind that all we are discussing, all the book is discussing about, cannot be taken for granted.
That would be my first point. And the other element is what you raised in your question, many of these discriminatory situations are based on intersected factors. So it's really difficult to isolate a culture, a tradition, a country, a situation of women. In general, it's a combination of multiple factors.
And if states want, really want to tackle discrimination against women, to eliminate discrimination against women, they have to adopt this comprehensive approach to discrimination against women. So it's really this holistic approach, intersected approach, times in situation of peace, but also in situation of armed conflict, or emerging situation. And my final question is, what are areas of human rights that you believe would require further research or attention in coming years? When I was reading again the table of content for preparing this postcast, I realized actually that maybe there are two things that I'm missing, but again, I mean, when we discussed 10 years ago, so in 2014, these topics were not visible, so it's really for the future.
First I would say is the concept of gender apartheid. So we have in the book, of course, chapters on discrimination against women, situation of vulnerability and so on. But now there are more and more discussions, and there are more and more debates, including at the UN level, at the United Nations level, about not only describing the situation of women in some countries as a situation of discrimination, but using another kind of term like apartheid to describe Afghanistan and the Taliban regime to describe their situation of segregation. So again, in 2016, it was not a concept used by the UN or NGOs and so on.
So I have no regrets. But now if I had to do the same book again, I would obviously maybe have a chapter on gender apartheid. The other question that is not mentioned in the book, but it's really an increasing question in feminist theory, but also LGBT theories and doctrine, is about transgender women, whether or not transgender women's rights are women's rights. And there are very interesting questions and debates and sometimes controversial debates on that aspect.
And there are different views, including by the, for instance, the committee dealing with a conventional elimination of discrimination against women, different views within the Inter-American Convention on Human Rights. So I would love also to have a new chapter on transgender women's rights as women's rights, or women's rights, depending on the person. That sounds very important and quite interesting as well. Yes, well, with that answer, we've come to the end of this interview.
Professor Tigurat, thank you very much for joining us today. I think we can all agree that this is a very important topic, and it was really interesting to hear you talk a bit more about the book. Thank you. And thanks again for giving me this space and opportunity to discuss.
Indeed, I mean, it's really an important topic. Yeah. It's our pleasure. Thank you.