Internalizing Gender: Why International Law Theory Should Adopt Comparative Methods
Columbia Journal of Transnational Law, Vol. 45, 2007
70 Pages Posted: 24 May 2008
This Article uses the example of international women's political rights to examine the value of comparative methodologies in analyzing the process by which nations internalize international norms. CEDAW, the Convention on the Elimination of All Forms of Discrimination Against Women, the principal international convention on gender equality, models the complexities and the potential interaction between the disciplines of comparative and international scholarship. International theory is divided between predominant theories of internalization and neorealist challenges to those theories. In internalization theory, international law crashes into comparative law realities. Comparative methodologies can add crucial complexity to internalization, the success of which depends on acknowledging vast differences in national legal cultures. Incorporation of difference may lead to wider acceptance of and agreement on norms and the remedies for violations of those norms.
Brazilian and French internalization of CEDAW's political representation norms have led those countries to require, respectively, thirty and fifty percent of all candidacies be reserved for women. These contexts provide the opportunity to study internalization in divergent contexts. Not only do laws vary among states, but that the very construction of gender itself varies. Comparative awareness of the cultural contingency of gender may lead to more direct and effective agreements that model change for real legal systems both international and national. Understanding these differences point to crucial limitations in realist theories of international human rights law. International law does affect state behavior, but states internalize international law in their own syncretic fashion. Recognizing cultural divergence in gender constructions, this Article concludes by advocating a more polyglot understanding of internalization, in which the pursuit of international goals draws on the recognition of divergent legal cultural realities.
Keywords: gender, sex, women, international law, comparative law, Brazil, France
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