Journal Article

Comparative (in)equalities: CEDAW, the jurisdiction of gender, and the heterogeneity of transnational law production

Judith Resnik

in International Journal of Constitutional Law

Published on behalf of The New York University School of Law

Volume 10, issue 2, pages 531-550
Published in print March 2012 | ISSN: 1474-2640
Published online March 2012 | e-ISSN: 1474-2659 | DOI: http://dx.doi.org/10.1093/icon/mor064
Comparative (in)equalities: CEDAW, the jurisdiction of gender, and the heterogeneity of transnational law production

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A formal model of treaty-making identifies nation-states as pivotal parties to transactions. A formal model of equality rejects distinctions treating women and men differently. Both kinds of formalisms miss practices making plain the permeable boundaries of the nation-state, the variegated texture of transnational lawmaking, and the challenges of materializing equal treatment.

This essay explores these boundary-bendings by examining the affiliations with, reservations to, and antagonism generated by the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), empowering discursive exchanges between the U.N.-based expert committee overseeing CEDAW’s implementation and the ratifying states. Interactions around CEDAW depart from the uniformity and universalism often associated with international law. Rather than a singular formal moment of ratification through a monovocal nation-state, the parties to CEDAW file, and some withdraw, reservations; the CEDAW Committee reviews and questions practices of party-states and episodically issues new general directives; and a few localities make CEDAW domestic law while others aim to ward off any such efforts by general bans on references to “foreign law.”

National treaty reservations and subnational internationalism join other mediating mechanisms—such as judicial doctrines providing a “margin of appreciation” or federalism discounts that permit some deviance among subunits and forms of constitutional pluralism —that reflect constrained affiliations across borders. These diverse legal postures underscore the heterogeneity found in transnational exchanges and, in addition to the positive account of the need to recognize these facets of lawmaking, the normative argument advanced is to appreciate the utilities of disaggregated internationalism that, in the context explored here, reveals the challenges of operationalizing aspirations for equality.

Journal Article.  10146 words. 

Subjects: Constitutional and Administrative Law ; UK Politics

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