The space of international law is a path for feminist resistance – and in the squo liberal mechanisms are forced through underlying assumptions

A. Adapting the Critique of Rights to the International Law Framework

Any critique of rights discourse must be historicized. Rights have historically played a significant role in the eradication of legal privilege. 46  [*97]  The challenge awaiting a feminist critique is to ensure that the discourse of rights learns to walk on its own in the human rights field as applied to women. To argue that such a discourse has "run its course" is to lose sight of the relationship between rights and historical stages.

At a formal level, women have no access to mainstream human rights law. The public/private distinction continues to enforce legal privilege along gender lines. Thus, without discarding altogether the value of critiques which expose the limitations of the rights discourse, the task of a feminist understanding of human rights law is to situate those critiques within "the political climate," to recognize their "defensive" character, 47 and to allow them to exist, not as rigid artifacts, but as instruments that in eradicating legal privilege draw boundaries and instill fairness into the organization of social relations. The woman who demands her human rights "is not a supplicant or a seeker of charity, but a person with dignity demanding a just outcome according to widely accepted criteria of fairness." 48

B. The "Substantive" Law of State Responsibility

The requirement of state action as a threshold justiciability question in the context of human rights owes its genesis to the demarcation of spheres between the state and the individual. This demarcation is paradigmatic of a social organization founded upon the mythical story of the social contract and crystallized by the emergence of the nationstate, via sovereignty theories of the sixteenth and seventeenth centuries. 49

International law, and in particular the human rights field, becomes a crucial medium through which underlying liberal values are shaped, advanced, and refined. A feminist approach to human rights law therefore grapples with the core narratives underlying the individual and the state and in doing so exposes, from a gender perspective, their inconsistencies and exclusions. Such an approach exposes the gender bias of those social relations upon which the state is constituted, and "casts shadows on the ability of the Western tradition to give an accurate picture of human relations." 50

 [*98]  The natural social contract story has not been immune from revisions brought about by historical forces. Nevertheless, its concept of negative rights which guarantee individual freedom is deeply entrenched. After experiencing some erosion with the advent of social institutions promoting the public interest (brought about by twentieth-century progressivism), the public/private distinction regained hegemony as a defense against totalitarianism after World War II. 51 Progressive notions were subordinated by the argument that "any substantive conception of the public interest was simply the first step on the road to totalitarianism." 52 The neutral state was reconceived as the "sum of the vectors of private conflict." 53

The liberal foundations of state action requirements in the human rights field must undergo both an external and internal critique that exposes their ideological character. The external critique, by exposing the ideological values in conflict, reveals the flaws inherent in a system of state responsibility built upon the liberal public/private distinction. At the same time, the external critique fuels an incremental approach upon which an internal critique can be elaborated.