Environmental Interests of Women as Human Rights in South Asia and CEDAW: Adjusting to a World of Comparative International Law

Abstract

The idea of international law gets concretized and crystallized once it is defined and consented and subscribed to by all the nation-states and stakeholders on the pedestal of sovereign equality. However, the field of international law is an area where cross-country comparisons are also regarded as incongruous as the same rules apply to all parties. The instant research paper argues that nation-states from time to time observe similar and other times assume different interpretations and explanations of the same international norms and standards. International legal rules and standards are not a monolithic whole but are the basis for the current contestation whereunder nation-states lay down conflicting interpretations. International norms are interpreted and redefined by the national legislative, executive, and judicial organs. These diverging and evolving interpretations can, in turn, change and affect the international rules themselves. These similarities and dissimilarities make for a significant, but thus a far largely unexamined, object of comparison. It is the premise for this research paper, identified as “comparative international law” by the author. The author adopts an inductive approach to the question of whether there is a “comparative international law” to address the environmental interests of women with human rights accountability undermining other obligations. The author measures the scope to which such a comparative narrative can be assumed to be in existence by analyzing the case law of SAARC domestic courts. It examines domestic case law on environmental interests of women as human rights in South Asia and the reception of CEDAW in the municipal jurisdictions of SAARC nation-states within the rubrics of comparative international law where human rights obligations conflict with another global law requirement. It tries to explore whether national courts gave precedence to human rights if this is shown to be the case, it will give credence to the contention that the international legal order is progressing toward a vertical legal system, with human rights obligations at its zenith. In determining and addressing conflicts between human rights obligations towards the interests of women and other fields of international law, the practice of judicial bodies, both domestic and international, is fundamental. Judicial practice denotes that norm conflicts typically demonstrate themselves in situations where the environmental interests of women as human rights obligations are at odds with other international commitments. The instant research paper achieves three goals. The first is to manifest that international law is not a monolith. The second is to map out the cross-country convergences and divergences in upholding the environmental interests of women in the field of international law as well as their application and interpretation with regards to geographical differences. The third is to make a first and preliminary attempt to explain these differences. Therefore, the paper is structured into several broad thematic segments, exploring the conceptual constructs, SAARC institutions, and comparative international law, and comparing approaches across the environmental interests of women as human rights under the mandate of CEDAW and beyond.