From treaties to domestic law: The Gender Legislative Index as a tool for domesticating human rights – Ramona Vijeyarasa

This article proposes options for enhancing accountability for domestication of global human rights norms. Drawing on the Gender Legislative Index, it briefly explores the limitations of existing accountability mechanisms in the context of women’s rights and CEDAW. It then discusses the potential for using an index to enhance accountability for domesticating human rights norms in national legislation.

The human rights system is designed to hold countries to account for domestication of the norms set out in the core human rights treaties. If viewed through less sceptical eyes, the treaty monitoring body mechanism system does well to bring visibility to those most egregious cases where domestic legislation openly violates international commitments. For instance, the Committee on the Elimination of Discrimination against Women (CEDAW Committee), through its Optional Protocol conducted an inquiry in 2012 into an Executive Order banning contraceptives in wider Manila city (a request I co-drafted at the Center for Reproductive Rights) and, more recently another inquiry into laws that unreasonably restrict access to abortion for women and girls in Northern Ireland. Other monitoring bodies have also brought visibility to domestic laws that violate international human rights such as the Committee  on the Rights of Persons with Disabilities that conducted its inquiry from 2018-2019 into discrimination in the law (and in practice) against people living with disabilities in Hungary

Incorporating international law into domestic legislation

The question that emerges, however, is: what tools exist to monitor the day-to-day, less egregious instances of rights violations? If we narrow this question even further and focus on the law, how do we monitor the extent to which international standards have been translated into domestic legislation? Most international law requires domestication of those standards, but this is particularly evident if we look at the ‘protect’ aspect of human rights – laws to criminalise gender-based violence come to mind. 

In this regard, I suggest tackling this question of legal accountability for human rights norms through “qualified” quantitative methods. After all, the Millennium Development Goals and the Sustainable Development Goals – despite their clear flaws eloquently described by scholars such as Winkler and Satterthwaite and Kabeer – have drawn significant global interest precisely because they allow for comparisons across countries and of progress over time. As I and co-author Jose-Miguel Bello y Villarino have noted elsewhere, systems of comparison that draw on quantitative approaches have much to offer for human rights accountability. This is both from a cost-benefits perspective but also in their ability to draw out relevant information from a particular dataset. 

The concept of an “index” for human rights accountability is far from new. In fact, Philip Alston made a persuasive case for a Human Rights Accountability Index in 2000, and one with links to the Human Development Report, while warning us about the many risks and limitations of such an index. For example, a country’s positive score, on one aspect, might obscure its poor performance on another, especially since indices tend to favour a composite score. 

Filling in the blank space between treaty ratification and domestic law

The task (and outcome) is a different one when we focus on a legal index that evaluates individual laws, which is precisely the focus of the Gender Legislative Index (GLI), an online platform that evaluates specific aspects of individual laws for their gender-responsiveness and then determines, overall, the extent to which that law meets international women’s rights standards. 

The GLI’s foundation is the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). The CEDAW Committee has long called for laws and policies to be enacted to promote women’s rights, equality and non-discrimination and for such discriminatory laws and policies to be repealed. Under the GLI, countries are effectively evaluated for their success in pursuing this goal. Individual laws are assessed against seven questions derived from CEDAW and its 37 General Recommendations.

Although the GLI is a complex tool that amalgamates data science, benchmarking, machine learning and human evaluations, in this piece I would like to draw the attention of the reader to the way it establishes the nexus between international law and domestic legal standards. It is these seven questions that fill in the blank space between ratification and domestic laws that actually uphold human rights. Based on a coded analysis of those general recommendations (aided by the use of NVivo software in a way that can be replicated), the seven questions that form the basis of the GLI are:

1.    Does the law guarantee access to non-discriminatory and accessible, affordable, acceptable services?

2.    Does the law guarantee access to information and education or require the provision of information and education on the issue?

3.    Does the law guarantee non-coerced and informed decision-making and where relevant, protect women’s confidentiality?

4.    Does the law promote equal relations between men and women?

5.    Does the law protect women from situations of vulnerability linked to their gender?

6.    Does the law guarantee accessible and effective remedies (i.e. access to justice)?

7.    Does the law promote the comprehensive monitoring of the situation of women? This includes promoting gender-disaggregated data collection on the nature of the problem.

Using benchmarks from international law, it becomes clearer how these questions can be used to define the contours of gender-responsive legislation. Access to services in the context of reproductive health, for example, may be about guaranteeing access to reproductive health care to all women, regardless of age or marital status. In the area of labour, laws that promote equal relations would require equal pay for equal work, and non-discrimination in workplace-related decisions, including recruitment and promotion. All laws should promote some type of gender-disaggregated data collection, to better understand the situation of women that is regulated by that law and also to understand the actual impact of that law on women’s lives. 

Naturally, there may be areas of laws where one or more of the above questions proves not relevant, or not enough information is contained in the law to make a determination. The categories “not applicable” and “inconclusive” are included in the GLI to accommodate both situations.

Figure 1: Sample evaluation – Indonesia’s Elimination of Violence in the Household Act (2004)

Enhanced accountability and shifting the conversation

The GLI offers the prospect of addressing some of the accountability challenges that have plagued the human rights system. States can be asked to report against the seven questions and civil society have a set of questions when shadow-reporting on their government’s performance. Importantly, to deliver change, legislators know what human rights standards they need to fulfil and can more easily explain decisions and choices in reading speeches of draft legislation.

Still within the CEDAW framework, this approach can also facilitate a re-examination of the law from the point of view of the most marginalised and excluded women, whether that legal discrimination be on the basis of a woman’s sexuality, race, colour, ethnicity, marital or disability status. Yet we can imagine these seven questions – in modified form – being used to enhance accountability of States to other human rights treaties: To what extent does a law guarantee people living with disability non-discriminatory and accessible, affordable and acceptable services? Does the law promote equal relations and challenge racial discrimination? 

Figure 2: The Gender Legislative Index uses benchmarks from international law to aid evaluators assess the gender-responsiveness of individual laws.

The evident limitations of a silo-approach to human rights are well-acknowledged by scholars (see herehere and here) and the human rights community (see for example here and here). There are two considerations in response. First, so long as the human rights system continues in the format of treaty-based reporting, a treaty-based index proves useful. Second, revisiting Alston’s ideas from two decades ago, imagine the potential of an index of this kind for legal accountability for domestication of human rights norms when it comes to the Universal Periodic Review, or its potential to enhance reporting against the Sustainable Development Goals.

In this context, the Gender Legislative Index can be a tool to shift the conversation towards legislating in a way that meets these international standards and progresses countries towards respect, protection and fulfilment of the human rights commitments that States adopted many years ago. 

Ramona Vijeyarasa is a Chancellor’s Post-Doctoral Research Fellow at the University of Technology Sydney, where she created the Gender Legislative Index. She is author of Sex, Slavery and the Trafficked Woman: Myths and Misconceptions about Trafficking and its Victims (2015), along with more than 20 other peer reviewed publications, including in the NYU Journal of International Law and Politicsthe Journal of Human Rights and the Journal of the American Medical Association (JAMA).