Guatemala's Gender Equality Reforms: CIL in the Making
Indiana University Maurer School of Law
Indiana Law Journal, Vol. 83, 2008
Indiana Legal Studies Research Paper No. 134
The essay explores the development of transnational women's networks in Guatemala and the connections of Guatemalan transnational networks to internal and international litigation aimed at reforming Guatemala’s Civil Code and modifying constitutional interpretations of Guatemalan gender equality. It argues that large numbers of Guatemalan women have been influenced by these transnational networks such that, in the immediate aftermath of Guatemala's civil war, women expressed their discontent with Guatemalan statutory law and constitutional interpretations on the subject of gender equality. When internal litigation was an unsuccessful tool for achieving reform, international law and international adjudicatory bodies served as mediators between the Guatemalan people and their state. Guatemala initially held fast to the view that gender equality provisions could, for example, include a limitation on women's work without the permission of her husband. At the same time, public sentiment on gender equality diverged significantly from the state's position. International law and international and transnational organizations provided a means by which Guatemalan women were able to circumvent their state in order to attain the legal reforms they sought. This case study provides an illustration for the argument that CIL made up of state practice and opinio juris alone will regularly misrepresent the interests of the people, especially in failing democracies or in non-democratic states. This case study - and many that may share common characteristics - serves as an example of the possibility of veiled desires of individuals within non-democratic countries that contradict and are not accounted for by state-centric CIL formation doctrine. I argue that this gives rise to significant concerns about the democratic legitimacy of CIL.
Number of Pages in PDF File: 23
Keywords: international law, transnational networks, gender equality, women's rights, human rights, CIL, customary international law, democratic deficit
Date posted: April 17, 2009 ; Last revised: July 2, 2013
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