for women living in the United States who are of Indian descent.
Context in Critiques of Governance Feminism
Janet Halley, Chantal Thomas, Hila Shamir, and Prabha Kotiswaran’s main goal in their groundbreaking article in 2006 was to describe a trend in international and humanitarian law where a certain form of American feminism (primarily dominance theory) infuses international institutions, as well as the discussions and negotiations of international treaties. They label this type of feminism “governance feminism.” Their critique does not explicitly argue that governance feminism is problematic because it is insensitive to country context, but the threads for this argument are present in their work. I develop those threads in support of my argument that a practice can call for a radically different response in different country contexts.
Critics of governance feminism do not necessarily oppose the influence of domestic feminism on the international realm; rather, they appear to disapprove of the fact that only a certain form of feminism is elevated to the international realm. Their critique is important because it is the first to identify how feminism (and specifically a certain brand of it) has been exported from the United States to international institutions and then transposed to the domestic level in other countries.
Although the critics of governance feminists do not expressly point to the importance of context in designing policy solutions on women’s rights, it is clear that they view geographic context as important. First, Halley points out that it is problematic to use radical feminist understandings of rape, which were developed in a non-war context, in war situations. She argues that the Kunarac case before the International Criminal Tribunal for the former Yugoslavia is an example of where this was done. The defendant in that case was convicted for the rape of a woman he transported out of detention. The court assumed that she did not consent to the sex, because it occurred in a war-like setting. Here Halley sees the imprint of radical feminists, who “have long argued that, in rape trials, force, resistance, and consent/non-consent are the wrong issues of coercive circumstances.”80 Imposing what she calls radical feminist views in the war context could lead to overenforcement, because any sex in a war setting could be considered rape.
Second, Shamir’s case study suggests that regulations on sex work might be appropriate in one context but not in another. She notes that governance feminism, “well-intentioned as it may be—is pre-loaded with a strong tendency to overlook or underplay the costs it might cause to some and fix its gaze on the benefits gained by others.”81 She expands on this by arguing that it is necessary to focus on the impact a policy has on many groups in determining whether or not to adopt it; she then analyzes the policies of several different countries on sex workers in those countries.82 Shamir applies a cost/benefit analysis to evaluate policies concerning sex workers in three different countries. Engaging in this type of balancing test assumes that policy solutions to women’s equality issues are not fixed and can vary with the context.
Third, Thomas’s case study of the negotiations of the international agreement on trafficking (Palermo Protocol) can be interpreted to illustrate the problems that ensue when feminist approaches to laws in one country context are transposed to another country context. Thomas describes the dominant strands of feminist thought on sex work and observes how they have manifested themselves in the negotiations of the Palermo Protocol.83 These feminists, drawing inspiration from MacKinnon, argued that all sex work is trafficking because it enforces subordination of women by men. Thomas describes these views as follows:
Women are prostituted precisely in order to be degraded and subjected to cruel and brutal treatment without human limits; it is the opportunity to do this that is exchanged when women are bought and sold for sex… [L]iberty for men … includes liberal access to women, including prostituted ones. So, while for men, liberty entails that women be prostituted, for women prostitution entails loss of all that liberty means.84
On the other end of the spectrum are the individualists who believe that sex workers frequently exercise choice in choosing to perform sex work. They therefore believe that not all sex work is trafficking. The individualists disfavor a definition of trafficking that fails to recognize that some sex work is undertaken by choice and thus is not trafficking.85 Another, less vocal, camp framed sex work as simply the right to work, a form of wage labor.86 The view pushed by the Clinton administration “conceptualized prostitution and trafficking as distinct; envisioned the possibility of non-coerced prostitution; it also emphasized the centrality of human rights.”87 This liberal framework emphasized autonomy.88 Ultimately, Thomas notes that both the liberal and structuralist feminist views prevailed in the treaty language that was eventually adopted.89
MacKinnon’s view is that prostitution is detrimental to women’s equality and should be outlawed everywhere. I argue against this universal approach to women’s equality and rights. In some countries like India, many sex workers would not be able to provide the basic necessities like food and shelter for themselves and their children if they were not able to undertake sex work. There are few alternative jobs available to sex workers, particularly in a place like India, where sex workers are shunned by society. While there certainly are sex workers in the United States who engage in sex work just to have enough money to eat, most do not operate at that level.
While the harms of sex work might be the same across countries (dignity harms, greater risk of violence, etc.), the costs of a ban will not be. A ban in a place like India could result in the inability of many women to support themselves. In other countries, a woman is more likely to avoid costs like ostracism and may be able to find other paid work. Like Shamir, I believe that in weighing competing rights at stake in banning sex work, the legal outcome could be different in a country like the United States than a place like India.
Governance feminism seems to push for policy solutions developed in one country context to other country contexts. Typically, it pushes a more developed country’s policies onto a less developed country. This harkens back to the law and development work undertaken in the early 1960s and 1970s, where Western lawyers and advocates embarked on reforming and strengthening regimes in emerging economies.90 The problem was that the model laws they proposed were developed in Western countries and they neglected to tailor the laws to the specific context of the destination country, and in many cases the transplanted laws did not work to accomplish their goals.91
Sex-selective abortion bans are in a way a reverse transplantation of laws—from a less economically developed country to a more developed country. Advocates for the bans in the United States often argue that because India and China ban sex selection, the United States should also do so. This reverse transplantation is problematic for many of the same reasons that the law and development movement has been criticized.
Context in Karima Bennoune’s Work
Professor Karima Bennoune’s groundbreaking work more explicitly foregrounds context in evaluating bans on practices that are thought to be harmful in one context, but then emerge in other country contexts largely through human migration. She examines veil bans and argues that whether or not they are appropriate depends on the context. As she notes, her proposal provides “an innovative contextual approach to assessing the legality of bans in public schools on ‘modest’ garments claimed to be required by religious beliefs of Muslim women.”92
She elaborates that a contextual analysis of bans on modest dress of Muslim women would involve examining a number of factors, including:
[T]he impact of the garments on other women (or girls) in the same environment; coercion of women in the context, including activities of religious extremist organizations; gender discrimination; related violence against women in the location; the motivation of those imposing the restriction; Islamophobia, if relevant, or religious discrimination in the context; the alternatives to restrictions; the possible consequences for human rights both of restrictions and a
