International Law and the Disaggregated Democratic State: Two Case-Studies on Women’s Human Rights and the United States
by Karen Knop
The two United States case studies in this paper demonstrate that whether or not a state is party to a particular treaty, in a disaggregated democratic state both the central government and different parts of the state have a remarkable range of possibilities for configuring their law and politics around that treaty and thereby configuring the contours of the state internationally. The cases center on women’s human rights: San Francisco’s “implementation” of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), despite the fact that the United States is not a party; and the work of the US Commission on International Religious Freedom (USCIRF), an independent bi-partisan federal agency which advises the President on sanctioning other countries for severe violations of the international right to religious freedom and is increasingly taking on issues of women’s equality in that context.
The paper shows that the normative effects produced by San Francisco’s CEDAW initiative are not well captured by existing schematic approaches to the behaviour of sub-state actors, which tend to apply either a linear measure of compliance with international law or some general idea about good and/or bad local variation. Applying a more ethnographic alertness to mutation and transposition, the analysis reveals that in the case of USCIRF as well, the result is both under- and ultra-compliance as these sub-state actors transform the substantive content of the treaty. The hallmark of both cases, however, proves to be more the replication of the treaty’s form than the application of its substance.
Published in We, the People(s): Participation in Governance, Claire Charters and Dean R. Knight, eds., (Wellington: Victoria University Press, 2011) pp. 75-116
Keywords: human rights; gender; United States
About the author:
Karen Knop is a Professor of Law at the University of Toronto. An earlier version of this paper was presented at the conference “We, the Peoples: Engagement and Participation in Government” held at Victoria University of Wellington Law Faculty/New Zealand Centre for Public Law. This paper is dedicated to Martha Morgan with admiration and affection.