INTRODUCTION

This chapter analyzes the practice of U.S. courts in “treaty cases.” The term “treaty cases” includes cases where a court engaged in substantive analysis of a treaty provision, as well as other cases where a party involved in litigation invoked a treaty in support of a claim or defense.

Analysis of judicial decision making in treaty cases is problematic because U.S. courts apply two mutually inconsistent models, which the author has labeled the “nationalist” and “transnationalist” models. The two models provide very different answers to three questions: (1) Which treaties have the force of law in the domestic legal system? (2) How should courts interpret treaties? and (3) Under what circumstances are individuals entitled to judicial remedies for treaty violations? In brief, transnationalists hold that treaties generally have the force of law in the United States, that courts should interpret a treaty in accordance with the internationally agreed understanding of its terms, and that individuals are ordinarily entitled to judicial remedies for violations of their treaty-based individual rights. In contrast, nationalists hold that only self-executing treaties have the force of law, that courts should interpret treaties in accordance with the shared understanding of the U.S. political branches, and that there is a background presumption that treaties do not create judicially enforceable individual rights.

An analysis of judicial doctrine related to treaties, without more, would present an incomplete picture of judicial practice because current doctrine provides support for both the nationalist and the transnationalist approaches.

In R. (on the application of Axon) v. Secretary of State for Health & Another, the English High Court affirmed that “the duty of confidentiality owed to a person under 16, in any setting, is the same as that owed to any other person.” Young women are entitled to seek and receive sexual health care, including abortion care, without parental notification.

The Court resolved the case primarily by reference to the “mature minor” rule, first developed in Gillick v. West Norfolk and Wisbech AHA and another. The rule states that a young person can give consent valid in law provided he or she has sufficient maturity and intelligence to understand the nature and implications of the proposed care. The Court reasoned that a logical relationship exists between the capacity to consent and the right to do so in privacy. Parental notification contradicted the mature minor rule and was inconsistent with Gillick. Evidence that without the guarantee of confidentiality young persons may be deterred from seeking care confirmed the rule as good public policy.

Axon is also a constitutional case, reflecting a legal landscape that has changed drastically since Gillick was decided more than twenty years ago. Most significant is the introduction of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), which strengthened the language of competing rights and state interests in the English legal system.

INTRODUCTION

In the scholarship dedicated to legal transplants, the binary East/West permeates the images and understanding of the ways in which Islamic legal rules travel, penetrate, and get received by the West in a comparative law dialogue. Differences are thus being assigned between the legal regimes of the East and the West, two entities considered as sharply divided. This chapter seeks to understand the politics of transnational Islamic family law in Canada, the United States, France, and Germany, through the migration of one particular Islamic legal institution: Mahr, “the gift which the bridegroom has to give to the bride when the contract of marriage is made and which becomes the property of the wife.” The issue of Mahr typically presents itself in a crisis: a married Muslim woman, engaged in a religiously structured marriage, and living in a Western liberal state, reaches out to the secular court upon the dissolution of her marriage to claim the enforcement of Mahr, presumably because her husband has previously refused to give her the amount of deferred Mahr.

Through an analysis of the case law, I explore the ways in which substantive equality is being used by courts to accept or root out Islamic law from the family of institutions that are deemed appropriate in Western countries. What influences the selection and imposition of Mahr as a gendered institution? How does law shape substantive equality in a comparative religious framework? Does the way Mahr travels affect gender equality, in both productive and reactive terms?

INTRODUCTION

Since the 1990s, women's organizations in Africa have been advocating for constitutional reforms and legislative changes to protect their rights and increasingly, they have been successful in these efforts. Most notably, there has been the increasing introduction of clauses, which allow the constitutional guarantees of equality to prevail in the event that there is a clash between women's rights and customary laws and practices that violate women's rights, discriminate against women, or infringe on bill of rights provisions regarding gender equality. These are extremely profound challenges. They are, in principle, attempts to legitimize new law-based sources of authority for rights governing relations between men and women, family relations, and relationships between women and traditional, clan, and religious leaders. In the past, even when laws existed to regulate marriage, inheritance, custody, and other such practices, customary laws and practices co-existed and generally took precedence when it came to family and clan concerns. Even though in practice these customary norms may still prevail today, women's movements are now challenging them through constitutional and legislative changes in ways that we have not seen in the past.

This chapter examines the role women's movements have played in introducing new gender related provisions within African constitutions and legislation. In particular, it shows how customary law pertaining to marriage, inheritance, land rights, and other such laws affecting women's rights have been far more challenging to pass than provisions pertaining to state and market related institutions, for example, employment practices, taxation of women, and maternity leave.

Electoral gender quotas, although increasingly common, remain extremely controversial throughout much of the world. There is a lively debate in many countries over the justifications for quotas. And, as many observers have noted, the issues raised are remarkably similar, even in countries with very different political systems, and cultural and historical backgrounds. This chapter will explore the connection between the issue of justifying quotas, on the one hand, and models of equality and democratic representation, on the other.

The process of explaining why quotas are justified highlights a significant gap in current feminist models of equality and democracy. The majority of feminist writers call for a shift to particular models of equality and democratic representation as a basis for justifying quotas. Specifically, feminists tend to argue for a substantive model of equality rather than a formal one, and for a deliberative model of democratic representation rather than an aggregative one. My argument in this chapter is that we should supplement these models with an element that, although implicit in both models, needs to be more explicit and much stronger. This supplementary element involves challenging the reassertion of hierarchy and oppression. Adding this element of challenge to our models of equality and democratic representation will create a more effective justification for electoral gender quotas. And, equally important, adding this element of challenge will move us toward a stance that I believe to be important for feminism, both as a theoretical project and a political movement.

INTRODUCTION

This chapter addresses the relationship between international law and Guatemalan women who have advocated for constitutional and legal reform on matters of gender equality. The aims are two-fold and both require attention to the complexly interwoven relationship between individuals' rights, constitutional law, and international law. The first aim is to provide an example of how transnational feminists, active in both the transnational sphere and in the domestic field, can have a profound influence on constitutional meaning, often as a result of strategic engagement with international law and institutions. The second aim is to highlight the role constitutions play, together with other relevant documents and actions, as sources in the making of customary international law (CIL). This is a case study of women's efforts to attain gender equality in Guatemala through engagement with the legal system. It illustrates the relevance of individuals in shaping domestic law and altering the content of CIL through active use of the legal system, including constitutional challenges, sometimes buttressed by international norms, treaties, and institutions. In particular, this example highlights the core concern that designating states as the sole “subjects” under international law, such that they are the only entities whose participation is legitimized in the CIL formation process, is not sound given the inherent skepticism within international legal doctrine regarding state adherence to human rights law, especially in states known for violations, such as Guatemala.