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Helen McEniery
“We the Peoples”:
Challenging the Public/Private Distinction in International Law:
Extending International Protection to Victims of Domestic Violence in Refugee Law
I can not say that I think you very generous to the Ladies, for whilst you are proclaiming peace and good will to Men, Emancipating all Nations, you insist upon retaining an absolute power over Wives. Abigal Adams, 1776 (Esperanza Hernadez-Truyol: 1999, 3)
Although rights were proclaimed on behalf of humanity in documents such as the Declaration of the Rights of Man and Citizen, and the Declaration of Independence, (Marks: 1998, 485; Hunt: 1996, 16) it was not until the late nineteenth century that women were first granted the right to vote. Similarly, the United Nations Charter affirmed in 1945 that international legal institutions were created for “[w]e the peoples” of the United Nations, however women were also initially not included in the law-making processes of the United Nations (Kirschenbaum: 1992, 16; Charlesworth: 1994a, 421). This exclusion of women from the processes of international law resulted in the marginalisation of their issues and international law remained largely unresponsive to the plight of the world's women for some time (Charlesworth and Chinkin: 1991, 613; Charlesworth: 1999, 379).
Despite the historic failure of international law to concern itself with the issues and concerns of women, a number of recent developments illustrate a growing awareness in international law of the condition of the world's women. Part One of this paper examines how equality models in international law have developed since the promulgation of the United Nations Charter (which adopted a liberal approach to equality), such that international law now seeks to address the power imbalances between men and women (an approach influenced by dominance and cultural feminism). Furthermore, women have become recognised subjects of international law. This is evident particularly in the area of International Humanitarian Law and International Criminal Law. The decision of the International Criminal Tribunal for Rwanda (ICTR) in Akayesu illustrates this increasing recognition of women as subjects of international law.
Part Two of this paper examines the public/private distinction, and its adoption by international law. This part explores a number of approaches that could be employed to transcend the public/private distinction in international law. The elevation of gender discrimination and gender-based violence to a peremptory norm is discussed. Requiring states to observe due diligence is also a method which may ensure that states observe their obligations under international law. Three decisions of supra-national courts/commissions adjudicating regional human rights conventions are examined in this regard: Velasquez Rodriguez v Honduras (120 ILM [1989] 294), X and Y v The Netherlands (91 ECHR [ser A] [1985]) and Airey v Ireland (19 EHRR 112 [1993]). These cases illustrate that in some circumstances States cannot simply remain passive (ie. fail to protect their citizens from human rights violations committed by private actors, fail to enact criminal laws, or fail to provide legal assistance), and it is argued that the reasoning articulated in these cases should also be applied to hold States accountable for harm inflicted upon women by private actors.
It is submitted in Part Three of this paper that this reasoning, largely a product of international human rights law, has been incorporated into the judicial reasoning of domestic courts in the field of refugee law. A recent decision of the High Court of Australia, Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14, illustrates how private harm can be redefined to include a State's omission to protect its female population from harm, such that asylum is afforded to victims of domestic violence. This part concludes by considering whether such reasoning will open the “floodgates” to claims of refugee status. Australian courts have indicated in subsequent decisions that the elements giving rise to protection in Khawar are to be strictly construed.
Bio: Helen McEniery holds a B.A and a near-finalised LL.B (Hons) from the University of Queensland. She is currently working as an Articled Clerk with Dearden Lawyers, a city law firm specialising in criminal defence law, anti-discrimination law and administrative law. She studied for one year at the University of Tuebingen in Germany (with the help of a Study Abroad scholarship from the UQ) to complete the requirements for her Arts degree in German (a double major in German language and literature). She has also studied at the East China University of Politics and Law in Shanghai (with the help of a scholarship from the Centre for Asia-Pacific Law at the University of Sydney). Her general research interest lies in the field of human rights, having completed subjects relating to this field in her law electives (Equal Opportunity Law, Feminist Jurisprudence, International Human Rights Law, Public International Law, International Criminal Law and Comparative Law).
<helenmceniery@optusnet.com.au>