Jus Cogens is the modern international law doctrine which means any rule or norm from which no derogation is permitted. The problem which has arisen over time is that the definition of jus cogens is vague and thus not many states support it. Defender of this norm says that it is for international good rather than individual nation good. The main concern is its development has privileged and favours the men over women.
Writers are generally reluctant to go beyond the abstract assertion of the principle of jus cogens. The search for universal, abstract, hierarchical standards is often associated with masculine modes of thinking as it is generally considered that girls tend to think in a more concrete manner whereas boys on the other hand in a more formal and abstract way and generally most of the system favour boy’s way of thinking and thus international law is developed on the same line. The development of jus cogens talks about its gender origin nature. It always shows the male perspective of international law to the society that may or may not support the view of female. They all are male-oriented norms. As a consequence the fundamental aspirations attributed to groups are male and the assumptions of the scheme of global order assumed through the belief of jus cogens are essentially male. This is known as the symbolic significance of international law which in itself is totally skewed and gendered.
Human Rights and Jus Cogens
The most important human rights are considered as a part jus cogens such as the prohibition of torture, the prohibition of genocide, slavery, right to nationality, these all are enshrined in Universal Declaration of Human Rights and are also considered as a part of jus cogens as well as of customary international law. But jus cogens is skewed in such sense because there is no place for rules or norms which mostly affects women like gender discrimination, death by starvation, right to access to primary health care in jus cogens.
As most of the members in the international communities are male or we can say that most of the international instruments are made by the male-dominant group, that is why most of the rules of jus cogens favour men rather than women. The absence of women in the development of international law has produced a narrow and inadequate jurisprudence that has, among other things, legitimated the unequal position of women around the world rather than challenging it.
Gender Bias Nature of Human Rights Law
There are implementation difficulties within various conventions such as the 1979 Convention on the Elimination of All Forms of Discrimination against Women and the unjustifiable gaps in the content of jus cogens. Similarly, the human rights chapter describes the historical marginalization of “women’s rights,” as well as the continued difficulties prompted by cultural relativism, by understandings of “equality” that prohibit discriminatory treatment but do nothing to rectify economic, social, or political realities that keep women in “their place,” and by the continued lack of attention to “second” and “third” generation rights.
Chapters on the use of force and dispute settlement survey such problems as international humanitarian lawyers’ reticence to deal with rape and other forms of sexual violence, and consequences of employing peacekeeping forces that are, collectively, predominantly male. Prevailing concepts of “collective security” and “humanitarian intervention” has failed to consider the plight of women either in their justifications or their consequences; for example, the Kuwaiti territorial sovereignty was defended without any question being raised concerning that state’s denial of women’s civil and political rights.
International law draws a distinction between the public sphere and the domestic sphere of the jurisdiction of states. International law is almost exclusively addressed to the public sphere and it has the most serious implications on the life of the women as the women life is generally outside the public sphere and more in the private sphere and thus women life are less covered by the scope of International law and also outside the ambit of private (national) law.
In major human rights treaties rights are regarded according to the thinking of men and protection is given against what they (men) fear of. The primacy is always given to men and with their relation to the government. The same degree of importance is not given to economic, social and cultural rights which affect the life of women. It is not because the women don’t need protection from these harms, it is just because that there are more harms to women which needs to protected first and thus it makes women prone to wider amount of human rights violations.
Violation of human rights such a as genocide, slavery, racial discrimination must include women but racial discrimination can be of any type and there has not been a specific mention of gender-based or sexual violence even though sexual violence is the most prevalent racial discrimination of which half of the world’s population is suffering. If such categorization is made then it can prove to be more protective rights for women.
Sexual equality is also not given a basic fundamental character in international law. The manner in which jus cogens norms are made, they tend to obscure the most pervasive harms done to women.
There is no special status for the right to life to women. There has been a feminization of poverty in both second world countries and third world countries. Most of the crimes are committed against women and in India itself, 80% of wives are victim of domestic violence. There has been a mentality of men to beat their wives and they considered it as their privilege. All the research evidence that is available suggests that violence against women in the home is a universal problem, occurring across all cultures and in all countries. But it has not been addressed in international law. This is because the greater amount of international law is based on the public actions by the state and not by the private action by the private individual (men in this situation).
The definition of torture itself says that it occurs in the public sphere: “inflicted by or at the instigation of or acquiescence of a public official or other person acting in an official capacity”. But the reality is women apart from being tortured in the public sphere; they are most tortured in the private sphere, in the non-governmental sphere.
It occurs in the family itself. So, violence against women at such a large scale should not be merely a private issue. The state should be held responsible for not providing proper protection to women which make them prone to violence. The right of self-determination of women has also not taken into consideration.
The main reason behind this problem is the public/private distinction in international law and public/private distinction in jus cogens also adds to the detriment of this problem. To address this issue gender dichotomy between public and private sphere must be solved. Feminist rethinking to the jus cogens norms needs to be done. Feminist thinking will also address other violations including: sexual equality, to food, to reproductive freedom, to be free from violence and oppression. The International legal theory should address the issues of half of the world population (women).
Fundamental norms designed to protect individual should be gender-neutral in its application and should pledge to protect both male and female. They should be genuine human rights and not male-centred human rights. Most of the norms in the current scenario reflect male choices and they are not related to women in any way. And women do not get protection against violations to the acts to which they are more prone. Women’s experiences must be taken into account in developing the jus cogens and women’s numbers must be increased in the international community.