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Johnston, Kerensa --- "Everything in Context: Indigenous Women, International Human Rights Law and Discrimination - Is International Human Rights Law the Way Forward?" [2007] IndigLawB 61; (2007) 7(1) Indigenous Law Bulletin 17

Everything in Context: Indigenous Women, International Human Rights Law and Discrimination – Is International Human Rights Law the Way Forward?

By Kerensa Johnston


Indigenous women experience discrimination in a number of different ways and in different places. Laws, policies and state practices discriminate against indigenous women in ways that undermine our roles, values and aspirations including legislation which gives greater recognition to male property rights; policies which hinder the representation of indigenous women on government and public bodies; and criminal justice systems which fail to address the violence and abuse that indigenous women face. Within customary contexts, in the so-called ‘private sphere’, indigenous women continue to experience discrimination which can be life threatening, despite the development of universal human rights norms.

There are a number of legal avenues indigenous women can pursue if we wish to challenge discriminatory laws, policies and practices. International human rights law, and in particular, the Convention on the Elimination of All Forms of Discrimination Against Women[1] (‘CEDAW’) combined with the Optional Protocol[2] procedure, is available to indigenous women who wish to challenge discrimination; provided they live in states where CEDAW and the Optional Protocol is in force.

The Optional Protocol procedure empowers the CEDAW Committee, which is comprised of international human rights experts, to hear individual complaints from a woman, or group of women, complaining of state party violations of CEDAW.[3] Both Australia and Aotearoa/New Zealand are parties to CEDAW, along with another 185 countries. In December 2000, the Optional Protocol came into force in Aotearoa/New Zealand. By June 2007, eighty-eight state parties had signed the Optional Protocol, although notably, Australia and the United States have yet to sign.

CEDAW contains two important articles that aim to prevent discrimination against indigenous women. Article 7 aims to achieve equal political participation and representation of women in public roles and Article 5 refers to the social and cultural life of women.

Although there are a number of international human rights instruments which are relevant to women’s human rights, CEDAW combined with the Optional Protocol procedure is the only international law procedure which has the power to protect indigenous women from many different kinds of discrimination, whether it occurs in customary contexts (such as our homes and communities), or impacts upon the more traditional civil and political rights. The combination of Articles 5 and 7 is powerful, because it empowers indigenous women to pursue complaints against the state based on its failure to prevent or remedy discrimination which occurs internally (within our homes and communities) and externally (in the context of the relationship between indigenous women and the state).

The Optional Protocol procedure is potentially very useful to indigenous women because it enables the CEDAW Committee to make specific recommendations on individual complaints from women and to request the state to take specific action to remedy violations of CEDAW regardless of whether they occur in the private or public sphere. These recommendations could include, for instance, the establishment of positive discrimination initiatives (such as quotas) to ensure indigenous women are represented on public bodies, or education strategies within indigenous communities that focus on the development and implementation of human rights. While there may be benefits to pursuing discrimination complaints based on external and internal discrimination in international law forums, there are a number of important considerations for indigenous women to consider before submitting a complaint to an external body such as the CEDAW Committee. This is because international human rights law, its processes and its outcomes, present many challenges for indigenous women who aim to change and prevent discriminatory laws and practices.

Challenging Discrimination Using International Human Rights Law – Issues to Consider

Unjustified war, violence and abuse directed against anyone is never acceptable. This article is not an argument for cultural relativism based on the view that universal human rights standards should not apply to everybody due to a failure to take into account cultural nuances. As Rosalind Higgins has pointed out, the view that there can be no fully universal concept of human rights (because it is necessary to take into account diverse cultures) is usually advanced by states and ‘liberal scholars anxious not to impose the western view of things on others. It is rarely advanced by the oppressed who are only too anxious to benefit from perceived universal standards’.[4] International human rights instruments and judicial bodies, such as the CEDAW Committee may therefore be useful for indigenous women who aim to publicise and remedy human rights abuses occurring within their states.

These cases – and their high profile – can lead to international pressure being brought to bear on states to change discriminatory laws against indigenous women (as was the case in Canada following Lovelace v Canada[5] (‘Lovelace’)) and they may help stimulate debate within indigenous communities about different ways forward. The main purpose of this article is, however, to discuss briefly some of the challenges and pitfalls to consider when pursuing an international human rights based complaint which focuses on internal discrimination, as opposed to external discrimination claims which focus on state laws, policies and practices which impact adversely on indigenous women. There are many issues to be aware of and much depends on the nature of the claim itself.

Claims Based on Internal Discrimination

Internal discrimination claims can be problematic for indigenous women because they involve a complaint about discriminatory laws, practices or customs, which arise from within the indigenous group. Often these practices are justified on the basis of tradition. A claim of this nature would involve Article 5 of CEDAW, with the onus being on the state to take appropriate action to modify or eliminate customary practices which are based on the inferiority of women or on stereotyped roles for women.

Indigenous women who seek to change discriminatory customary practices using external bodies such as the courts or the CEDAW Committee can face accusations that we are undermining our culture (by exposing it to outside criticism and analysis); that we don’t understand our culture; or that we are not committed to the broader self-determination aspirations of our communities. These issues are compounded by the fact that external bodies such as the courts and international committees are not designed to provide long-term robust solutions for indigenous communities seeking to overcome discrimination and develop self-determination; nor are they necessarily comprised of indigenous people, or people who have an understanding of indigenous practices. These external bodies are, by their nature, designed to provide solutions to an immediate problem and the long-term effects of a decision cannot always be known. This was evident in the aftermath of Lovelace in Canada.

In Lovelace, Sandra Lovelace, a Maliseet Indian woman, brought an individual complaint against Canada using the Optional Protocol to the International Covenant on Civil and Political Rights (‘ICCPR’).[6]

She argued that the Canadian Indian Act[7] was discriminatory because it had a different and adverse impact on Indian women compared with Indian men. In her case, it meant she lost her legal rights and status as a band member under section 12(1)(b) of the Indian Act on her marriage to a non-Indian. However, under the Act, an Indian man who married a non-Indian woman did not lose his status and rights as an Indian Band member.

Despite Canada's claim that the Indian Act supported Indian culture because legal relationships to tribes were determined on the basis of patrilineal connections, the Human Rights Committee rejected this and found that the failure to recognise Lovelace's membership of her tribe was an unjustifiable denial of Article 27 of the ICCPR which recognises the rights of minorities to enjoy their own culture in community with other members of their group. In this case, Lovelace was now separated from her husband and was therefore entitled to return to her tribal territory and community.

On the face of it, Lovelace was a victory for indigenous women because it upheld our Article 27 right to enjoy our culture by recognising that the Indian Act was discriminatory because it did not also apply to Indian men. However, the enforcement of the Human Rights Committee’s decision and subsequent changes to domestic law created resentment within Sandra Lovelace’s wider group – partly because the decision was perceived as placing additional burdens on the group’s already scarce resources.

The Indian Supreme Court case, Khan v Shah Bano Begum[8] (‘Shah Bano’) provides another potential result from indigenous women challenging discriminatory practices. After 43 years of marriage Shah Bano’s husband divorced her according to the rules of a Muslim Talaq divorce. This meant she was only entitled to maintenance payments for the first three months following the divorce. Shah Bano applied to the Magistrate’s Court to obtain relief under state laws, which entitled her to monthly maintenance provided she did not remarry and could not support herself. On appeal, the Supreme Court held that Shah Bano was entitled to maintenance under state law, regardless of the customary divorce laws that applied to the parties. The Shah Bano decision caused an uproar in the Muslim minority community and was portrayed by some Muslim leaders as proof that the Hindu majority were trying to weaken Muslim custom.[9] One of the unfortunate outcomes of the case was the impact it had on Shah Bano personally. Possibly due to pressure from her own people, she eventually contacted the media and publicly rejected the Supreme Court’s decision that she had fought so hard for. As Ayelet Shachar has pointed out, ‘after her long and ultimately futile struggle, she was faced with a tragic “your culture or your rights” choice; frail and tired, she found herself forced to assert her loyalty to the nomos at the expense of her citizenship rights’.[10]

Indigenous women are familiar with this ‘culture or rights’ dilemma, because often our aspirations for gender equity are subsumed by our aspirations for self-determination. In Aotearoa/New Zealand, Clea Te Kawehau Hoskins, a Maori scholar, acknowledges that this is because the primary (but not exclusive) site of struggle for Maori women is within the struggle for Maori independence. Maori women’s status as tangata whenua (the indigenous people of Aotearoa/New Zealand) along with Maori men, and our shared culture and experiences of colonisation, place Maori women in a much larger reality than that of women’s rights.[11] This explains why some Maori women will not openly challenge discriminatory practices, which occur when we are interacting with the state or dominant Pakeha/western culture. Sometimes we choose not to air grievances or challenge discriminatory practices publicly, in the interests of protecting the integrity of the collective and to avoid exposing the collective to criticism. We are strategic about when to fight and when to wait, depending on the circumstances and issue under consideration.

Ultimately, long-term robust solutions about how best to address discrimination must come from within our own communities. Although these solutions might be informed by international human rights and perhaps even helped along by international publicity and pressure on states, ultimately it is our responsibility to continue to examine and resolve custom-based complaints within our own communities. For some of us, this will require a re-examination and rediscovery of our fundamental principles and practices as they relate to women. This re-examination will require a willingness to think about the justifications for certain practices (rather than blind acceptance of them) and the extent to which those practices are embedded within our culture or have been corrupted by the influence of colonial law and policy. As Ani Mikaere, a Maori legal academic reminds us, ‘the challenge for Maori men and women, is to rediscover and reassert tikanga Maori (Maori law and custom) within our own whanau (families), and to understand that an existence where men have power and authority over women and children is not in accordance with tikanga Maori’.[12] This process of re-examination and rediscovery must include the men in our communities – because our goals and aims are always connected to the wider goals and interests of everyone within our community. An individual’s rights and responsibilities are interwoven with the broader interests of the collective – and context is everything.

Kerensa Johnston is a lecturer at the Faculty of Law, University of Auckland, Aotearoa/New Zealand. Her tribal affiliations are primarily to the Ngaruahine iwi on the west coast of the North Island of Aotearoa/New Zealand, with whakapapa connections to Te Ati Awa and Ngati Maniapoto iwi. She wishes to acknowledge Nga Pae o te Maramatanga, The National Institute of Research Excellence for Maori Development and Advancement, for their assistance and support while writing this article.

[1] Convention on the Elimination of All Forms of Discrimination Against Women, opened for signature 1 March 1980 (entry into force 3 September 1981) (‘CEDAW’), <> at 5 November 2007.

[2] Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women, opened for signature 10 December 1999 (entry into force December 2000), <> at 5 November 2007.

[3] Provided the complaint occurs after the date on which the Optional Protocol came into force in the particular state.

[4] Rosalind Higgins, Problems and Process: International Law and How We Use It (1994) 96.

[5] Lovelace v Canada, Communication No R/6/24 (29 December 1977), UN Doc. Supp. No 40 A/36/40 (1981).

[6] Optional Protocol to the International Covenant on Civil and Political Rights, opened for signature 16 December 1966 (entry into force 23 March 1976), <> at 14 November 2007.

[7] Indian Act, RSC 1985.

[8] Khan v Shah Bano Begum [1985] INSC 99; AIR 1985 SC 945.

[9] However, many Muslim individuals and organisations supported the Supreme Court decision and later demonstrated against subsequent legislation enacted in an attempt to override the decision: see Siobhan Mullally, ‘Feminism and Multicultural Dilemmas in India: Revisiting the Shah Bano Case’ (2004) 24 Oxford Journal of Legal Studies, 671, 679.

[10] Ayelet Shachar, Multicultural Jurisdictions: Cultural Differences and Women’s Rights ( 2001) 83.

[11] Te Kawehau Hoskins, ‘In the Interests of Maori Women?’ (1997) 13(2) Women’s Studies Journal 25.

[12] Ani Mikaere, ‘Maori Women: Caught in the Contradictions of a Colonised Reality’ [1994] WkoLawRw 6; (1994) 2 Waikato Law Review 125, 149.

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