International Human Rights Law and Liberatory Potential: Part I

This discussion investigates whether the language of human rights gives us a universally applicable concept that guides nations to protect their citizens. Ultimately, I argue that international human rights law generally has liberatory potential but is limited in women's rights law, which I will illustrate this with the case of Poland.

In this section, section I, I will outline the theory of international human rights law, reflecting on Makau Mutua's concept of Third World Approaches to International Law (TWAIL), but arguing that Poland should take a different approach.

In Section II, I will focus on the Istanbul Convention, considering arguments about colonial oppression in this case.

In section III, I will illustrate that Poland violates the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the right to abortion.

Finally, in Section IV, I will argue that Poland has a history of international human rights laws being implemented by civil society. Ultimately, I argue that international human rights laws do have liberatory potential and are in line with Polish culture. However, this potential is not actualised for women's rights.

Strajk Kobiet Poland- Women's Rights Protests Poland

Section I- The Theory of International Human Rights Law

In theory, the language of human rights gives us a universally applicable language, dealing with concerns that deal with every human. However, there are problems with claims of universality, in practice, as concepts of human rights have been used as a tool of Western domination over other parts of the world.

For example, TWAIL points out that it can be used to westernise and dominate developing countries, which is problematic due to the history of European colonial rule over non-Europeans. This may have particularly negative consequences regarding negative perceptions of Third World culture in its treatment of women.

For instance, in 1958, colonialism sought to constitute Algerian womanhood symbolically and materially as available for colonisation precisely as colonialism enabled true independence. It is beyond the scope of this blog to discuss the problem of international human rights law in the developing world.

Still, it is essential to acknowledge that TWAIL is a valuable solution to address a historical problem of European colonial dominance. Nevertheless, there are issues with TWAIL as an exhaustive approach to human rights. Human rights are universal and ahistorical- so such an approach cannot provide a comprehensive solution to human rights problems in the rest of the world, for example, Eastern Europe.

International law also seeks to construct and present a normative legal edifice, the values of which should underpin and complement domestic law. For international law to have liberatory potential, there ought to be an approach that allows for country-specific situations and histories.

Poland, for example, enlisted many human rights independently, not as a result of colonisation. For instance, on November 28 1918, Polish women gained active and passive voting rights, following Piłsudski's decree, with eight women being elected to Parliament during the first independent Polish election in 1919.

This advancement occurring during Poland's gain of independence illustrates individualism and Poland's initiative of support for women's rights, specifically. This is also parallel to the advancement of women's rights and their right to vote across Europe, the UK granting women the vote also in November 1918.

Though Poland was invaded by both Nazi Germany and the Soviet Union, these institutions did not implement the concept of human rights. Hence, Poland has more of a cultural basis to support western doctrine than TWAIL countries as TWAIL did not go through European enlightenment.

Nevertheless, TWAIL aims to provide agency to colonised nations; thus, it is inappropriate to use the TWAIL approach to justify international human rights law violations in Poland regarding women's rights.

For more information:

Makau W Mutua. “What is TWAIL.” ASIL Proceedings 94 (2000): 31- 38. Mosope Fagbongbe. “The Future of Women’s Rights from a TWAIL Perspective.” International Community Law Review 10 (2008): 401-409. 10.1163/157181208X361449, p403.

Vasuki Nesiah. “The Ground Beneath Her Feet: TWAIL Feminisms.” The Third World and International Order: Law, Politics and Globalisation, edited by A. Anghie, B. Chimni, K. Mickelson, O. Okafor, 133-134. Great Britain: Kluwer Law International, 2003, p135.

TVP World. “Polish women gained voting rights 100 years ago.” 28/11/2018. Georgina Tomlinson. “The Suffrage Movement.” The Postal Museum. 06/02/2018. BBC News. “Istanbul Convention: Poland to leave European treaty on violence against women.” 25/07/2020.