Justice Ruth Bader Ginsburg Distinguished Lecture on Women and the Law

Association of the Bar of the City of New York

September 21, 2005

Address by Mary Robinson

It is a special honor and a particular pleasure to be invited by the New York Bar Association to give this year’s Ginsburg Lecture.

 I am a great admirer of Justice Ruth Ginsburg, and I was intrigued to learn that we had something in common during our early married life.  My source is another eminent member of the U.S. Supreme Court, who prefers to remain anonymous.  He informed me that the newly married Ruth Ginsburg managed to burn jello.  My poor husband Nick only had to endure a concoction known as “huevos Maria” (we honeymooned in Tenerife) until I learned to vary the diet.  I understand that both our husbands, by coincidence, are excellent cooks at this stage!

Happily, Justice Ginsburg and I have something else in common:  we share a passion for human rights in general and women’s rights in particular.  I will come back to Justice Ginsburg’s record, but I would like to begin by reflecting on last week’s UN Summit which disrupted so much traffic here in New York.  In theory, in this new century, a summit of world leaders should be a positive moment for women worldwide.  In practice that is not now the case.  Let me quote briefly from the website of a major international women’s network from the South, DAWN.  The heading is as follows:

DAWN says no to negotiations for Beijing +10 and Cairo +10

“The current political conjuncture of aggressive fundamentalism and militarism presents serious risks to women's human rights world-wide. DAWN (Development Alternatives with Women for a New Era) like a number of other organizations, is concerned about the possibility of setbacks to the gains made for women's human rights during and in relation to the UN conferences of the 1990s. Contrary to the relatively open environment for such advances that existed during the 1990s, the first decade of the 21st century confronts us with the extreme social conservatism, aggressive unilateralism, and support for militarism of the Bush administration, and the worsening of fundamentalist trends elsewhere as well. In such a context, it is very important to protect the gains made for women's human rights through careful and considered action. It is especially important not to place these gains at risk through promoting or agreeing to formats or mechanisms for regional or international meetings that are likely to be problematic.

Against this gloomy backdrop, women’s organizations still worked very hard to influence the Outcome Document of last week’s Summit.  They were concerned that it would not adequately recognize that the promotion of women’s equality and human rights is central to the achievement of human rights, security, and sustainable development.  They regretted that these issues had been somewhat marginalized in Secretary General Kofi Annan’s report “In Larger Freedom”.

For example, no issue better illustrates both the great insecurity and the denial of human dignity that plagues half the world’s population than violence against women – yet it was barely an afterthought in that document.  Ending impunity for gender-based violence should be top priority as a cross-cutting issue of human rights, security and development. 

The women’s groups were concerned that the human rights of women are still largely unprotected in much of the world today, and furthermore, efforts to realize and defend these rights are under intense attacks in many places around the world.  They felt that what was needed from the UN at this Summit was a vigorous defense of women’s universal right of access to their human rights and support for those who are the defenders of the human rights of women.

Although the final Outcome Document has language which reaffirms women’s human rights as central to the issues of the Summit, such commitments have been made before.  The leadership women need now is concrete, specific and time-bound plans, with resources for implementation of the promises made in Nairobi, Vienna, Cairo and Beijing, to which 180 governments have made a commitment through their ratification of CEDAW (The Convention for the Elimination of all Forms of Discrimination against Women). 

To be fair, there was, in the UN Summit Document, one very positive ray of light: the inclusion of important steps forward for women’s participation in peace and security processes.

The Document commits member states to implementing UN Security Council Resolution 1325 on Women, Peace and Security – passed in 2000 – which promotes the role of women in peace building and conflict prevention. 

Marie Cabrera-Balleza of the International Women’s Tribune Centre (IWTC) put it this way: 

“UN resolution 1325 is a milestone in global policy.  It recognizes for the first time the different impacts that violent conflicts have on women and men, and also recognizes women’s key role in peace-building and conflict resolution.”

Although women may not often be actual combatants, they are especially vulnerable to gender-based violence during situations of war and conflict.  Rape, sexual slavery and assault are common weapons of war as most recently witnessed in the Balkans, in Rwanda, the DRC and Darfur.

Having set the current scene on women’s rights at the international level, I would like to share with you my core beliefs about the idea of using law and the notion of human rights to bring about a more ethical globalization, and - given the interconnectedness of our world - the ways in which I have seen individuals reaching out and making a difference.

If we were to look for models in this endeavor, we would have to look no further than the woman in whose honor we are gathered tonight.  When President Clinton was searching for the right person to fill the seat on the Court being vacated by Justice Byron White, he said he was looking for someone with ‘a fine mind, good judgment, wide experience in the law and the problems of real people, and someone with a big heart’.  That seems a fair summary of the qualities of Ruth Ginsburg.

I like the story about her that she let a male law clerk work a flexible schedule so that he could help take care of his child since his wife had a high level demanding job. In explanation Ginsburg said: “This is my dream of the way the world should be---when fathers take equal responsibility for the care of their children, that’s when women will be liberated.”

Others are better able to assess the full extent of her intellectual contribution to the Court, but it is appropriate this evening to cite the majority opinion she wrote in US v Virginia (1996), in which she was also joined by Justice O’Connor.  The case held that the Virginia Military Academy, a state institution, could not exclude women simply on the basis of gender.  Her majority opinion held that gender based official action is unconstitutional unless supported by “an exceedingly persuasive justification”. Generalized assumptions about gender difference would not do.  This had the effect of raising the level of scrutiny substantially.

As was evident from her recent lecture to the American Society of International Law (ASIL) on the value of a comparative perspective in constitutional adjudication, Justice Ginsburg has been a leader in looking beyond the US’s geographic borders to inform the US legal system, stressing the importance of a comparative perspective.   Should it not be self-evident that just as the wisdom and experience of the U.S. judicial system can inform the progress of legal systems in other countries, so the United States can learn from others? Over the course of the last few years Justice Ginsburg has rallied her colleagues on the Court and her many audiences to this point, noting that “we are not so wise that we have nothing to learn from other democratic legal systems newer to judicial review for constitutionality”.

The Founding Fathers of this country cared how other nations viewed the US, and in particular the strength and justness of its legal system, and I would concur with Justice Ginsburg in finding no reason why that care would diminish over time. What the U.S. does is closely watched by the international community, particularly when it comes to respect for human dignity and human rights and respect for the rule of law – just as the U.S. feels compelled to monitor the legal situation of other countries.

Let me share a personal recollection of how inspiring it can be to hear members of the judiciary of a very large country cite the constitution and jurisprudence of another small country as providing some guidance in examining the principles on which the case will be decided.  In the mid-90s I was making a state visit to India as President of Ireland, and requested a meeting with the Supreme Court of India, as was my practice on state visits.  The Chief Justice invited me to sit in on a case over which he was presiding with another judge.  It was an appeal by way of judicial review.  Ireland and India share the inheritance of similar common law systems, so the procedure – including the wearing of wigs and gown - was very familiar to me.  Imagine my pleasure at hearing learned counsel for the applicant citing the Irish Constitution and Irish case law as being possibly helpful to his client’s case!

Sadly, I have noted the high degree of skepticism among many within the US legal system about the wisdom or propriety of looking beyond US borders for guidance, especially on matters touching human rights. I am sure that we are all familiar with the reasons cited, from cultural and linguistic differences to an outright rejection of the concept of universality in legal or human rights norms or standards. I would like to be a little provocative here and invite Justice Ginsburg to share with us later her view on the applicability of international human rights law here in the United States. And she might want to comment on what her sister Justice, Sandra Day O’Connor said recently: ‘Other legal systems continue to innovate, to experiment, and to find new solutions to the new legal problems that arise each day, from which we can learn and benefit.’

Women Judges

Speaking about Justice Ginsburg inevitably stimulates conversation about the value of having women judges. And of course the pending retirement of Justice Sandra Day O’Connor prompts the question of whether it really matters that there may now be one, rather than two, women judges on the US Supreme Court. This further begs the question whether having more judges who happen to be female makes any difference in the interpretation and practice of law.

I cannot help but think that Justice Ginsburg would agree with me on two things. First, that in the event of the appointment of two men to fill the vacancies on the Supreme Court it would take us back to a time of ‘one woman on the Court’ that we hoped was well and truly over.  It would be a painfully sharp reminder that despite women’s high educational achievement in law and other fields, and their high labor force participation rate, they are underrepresented at senior levels in law and most other professions.

Second - and of course she will have the opportunity as soon as I am finished to correct me if I am wrong - I believe that she would see as well the value of having women on the highest court of any country, because of the potentially moderating effect this can have on what is an enduring weakness of the judiciary: specifically that in all nations they are comprised mainly or exclusively of the elite, and have little or no personal experience of discrimination and marginalization, along any axis.

Many women judges decide cases like their male counterparts, of course. But I believe that overall women more often ‘have their antennae up’ for circumstances where bias, inequity, and injustice are heaped upon someone not because of what they have done or how they have behaved, but because of the sex or class or color with which they were born.

It can be demonstrated that a number of female judges are more attuned to issues of difference and marginalization. Judge Claire Dube, who retired recently from the High Court of Canada, is convinced that women judges are particularly important because they are the ‘great dissenters’. Research is underway now which will be presented soon in Paris that reflects some statistics on this.  Apparently it will show that this is true across many countries. Why? Judge Dube’s view is that men are more systems oriented while women are more empathetic – men see the law and women more often see the people involved within the legal system. She adds, by the way, that women have to be much better than men to be appointed to High Courts, but I don’t think she needs statistical backing for that assertion.

In any case, I am prepared to wager that woman are making, and will continue to make a truly significant difference on the International Criminal Court sitting at The Hague.  Six out of the eighteen judges are women, the Irish woman judge Maureen Clark being – I am proud to say – a former student of mine.  In addition, the first and second vice presidents of the Court are women.  Given issues such as dealing with rape as a war crime, here is an opportunity to show that all humanity benefits from a better gender balance in institutions of authority, whether at national or international level.

Recently I learned about a small project which to me illustrates another quality of many women judges.  They are not afraid to say that they still have things to learn. 

The project, the Rural Women Leadership Institute, has brought five Afghan women judges to Vermont over the past two years for judicial and leadership training.  It was formed by 4 professional women in southern Vermont who felt that if there is to be peace and justice, women must be at the table.  The Afghan judges expressed some of the impact the experience had on their lives.

“We now emphasize that the attorney for the defendant must be present in the court before we litigate”

“We women judges are perceived to be only symbolic – though we do work harder, we are not given the same authority as men judges.  Seeing the excellent work the men and women judges did in Vermont encouraged us.  We were inspired to keep our standards up.”

“We lost the most educated and experienced women judges over the past 25 years.  They had more degrees and were wiser.  We do the best we can.  This experience has given us an education and perspective we desperately need.”

As we know, women throughout the world have developed the art of networking, and know the value of learning through sharing good practices and personal experiences.  Women judges are no exception.

Here I must express my admiration for the International Association of Women Judges, with more than 4,000 members at all judicial levels in 86 nations. Formed in 1991, the IAWJ brings together women judges from diverse legal and judicial systems who share a commitment to equal justice and the rule of law.  The IAWJ sponsors educational and public service programs that address legal and judicial problems affecting women and children. Its aims are to advance human rights, eliminate discrimination on the basis of gender, and make courts accessible to all.

Now I would like to turn briefly to my present work and the issues that compelled me to found Realizing Rights: the Ethical Globalization Initiative.  The notion of an ‘ethical globalization’, which uses human rights as a compass to chart the course for our collective future, is particularly apt to discuss this week, following last week’s disappointing conclusion of the UN Summit. 

I am sure that all of you will agree with me that when our societies generate immeasurably more wealth than at any previous period, it is unacceptable that so many human beings continue to live in miserable circumstances – economically marginalized, unable to secure their own or their families’ basic needs, and living under the recurrent threat of violence and conflict. This is particularly true for women and girls.

I have asked myself how those of us who have been working for the universal observance of human rights can have an impact on poverty – itself a violation of human rights – on powerlessness, and on the level of conflict and human suffering.

Rights-based approaches to development integrate the norms, standards and principles of the international human rights system into the plans, policies and processes of development.  A rights-based approach requires us as practitioners to demonstrate the principles of participation, empowerment, accountability, and non-discrimination.

Rights also lend moral legitimacy and the principle of social justice to development objectives, and shift the focus of analysis to deprivations caused by discrimination. A human rights approach directs attention to the need for information, and a political voice for all women and men as a development issue. Its starting point is that civil and political rights should be embraced as integral parts of the development process, and that economic, social and cultural rights should be recognized and implemented as human rights, rather than shrugged off as fanciful ideals or abstract absolutes.

What my colleagues and I try to encourage is greater understanding of the human rights framework and its ambitious aim to develop a body of principles that, taken together, provide points of reference for all cases where issues of rights arise. It is the systemic nature of human rights which explains why advocates of rights often speak of their universality and indivisibility.  This is not jargon - it highlights the belief that respect for any right cannot be achieved in the absence of respect for other rights.

We are concerned in particular with the violation of the rights of women, including the continuing violence against women in many societies, the unspeakable practice of trafficking in women, and the continuing struggle against the grinding poverty and exclusion which eight-hundred million women - representing two thirds of those living on less than a dollar a day – face in their lives.

I wish I could say that the situation has improved over the past five years. But despite economic growth and poverty reduction for many, the reality is that for millions of women things may be even worse. Reports show that the numbers of women victimised by trafficking are on the rise, resources for family planning assistance have been slashed, and the scourge of HIV/AIDS strikes women increasingly in a growing number of countries. 

But despite the many challenges, I am convinced that women will prevail through their own efforts. They will continue the work to make human rights - their rights, their children’s rights - a reality.  I have seen for myself how women in every region are using with increasing skill the international human rights standards that their governments have accepted in order to press for change and accountability.  Whether they are combating poverty and discrimination, insisting on rights to sexual and reproductive health, working for peace in zones of conflict or giving leadership in political and economic spheres, the fascinating development is that their approach is increasingly rights-based.

Women are using the Convention on the Elimination of Discrimination against Women and its Optional Protocol; are drawing on the Convention on the Rights of the Child to support the rights of the girl child; and are utilizing the Covenant on Economic, Social and Cultural Rights to address issues such as the feminization of poverty.  For the first time in some countries, women are recognizing that their families’ futures, and indeed the development of their countries, depend to a large extent on whether their rights are respected.

I have had many opportunities over the years to witness the contribution of African women in their own countries and increasingly at the all-Africa level.  I recall, as President of Ireland, attending a Pan-African Conference for Women Leaders in Rwanda in March 1997.  When I returned to Ireland, I summed it up by saying:  “I have seen the future of Africa, and she works!”

When I worked as a lawyer before the Irish and European courts, I was fortunate enough to be involved in cases that affected the situation of significant numbers of Irish women.  Cases which, for example, resulted in the removal of discriminatory taxation of married women, the full participation of women in the jury system in Irish courts, the introduction of legal aid, the abolition of the status of illegitimacy and the achievement of equal pay and equal opportunity in the workplace.  I learned the value of individual test cases, the equivalent of class actions at the national level.  Those of us who have pleaded equality cases through courts have seen how something written in a book and decided in a courtroom will sooner of later reverberate back into the lives of women, opening up possibilities, impacting individual circumstances.

In my view the most defining attribute of human rights in development is the idea of accountability.  I would like to illustrate how we have tried to put this into practice in EGI.  We begin with the premise that a world that is now so closely connected by commerce, technology, and information must also be connected by shared values and norms of behavior – by ‘rules of the road’ for globalization.

Our work and that of our partners asks political leaders and business leaders the hard questions about obligations, duties and action. All partners in the development process - local, national, regional and international - must accept higher levels of accountability.  At EGI we have embarked on a process of convening, influencing and mobilizing leaders around specific policies and programs that we hope will foster a new and more enduring interconnectedness – a more ethical globalization.   

In selecting issues to work on we chose areas where a human rights approach would make the most difference.   One area we have given special priority to is achieving the human right to health.  We are working at different levels to bring the message home.  Together with the UN Special Representative on Right to Health, Paul Hunt, we drew up a short but pithy statement on the Right to Health which influential leaders of opinion are currently signing and which we will publicize as a form of advocacy.  Those who have signed include a number of former Heads of State such as Presidents Carter and Clinton, and also – of course – the ubiquitous Bono.

Another initiative was to make a small but hopefully significant contribution by partnering with Columbia’s Mailman School of Public Health and the Council of Women World Leaders at a Wye River conference entitled Innovations in Supporting Local Health Systems for Global Women’s Health:  A Leaders’ Symposium.  This meeting gathered a select group of ministers of health, senior civil service leaders, civil society representatives and other experts from North and South to discuss creative efforts to manage, support and monitor the provision of care for women in areas such as maternity, HIV/AIDS and reproductive rights in district and sub district health facilities in the developing world.  The Conference produced a Wye River Call to Action for Global Women’s Health which began as follows:

”We have the power to explore the planets and walk the moon. We have the power to coax green from the deserts. We have the power to map the human genome. Yet in the year 2005, in millions of communities in every corner of the globe, people are suffering because those with political power have failed to meet their most basic responsibilities.  That failure is seen in the crisis of local health systems that do not work, that excludes the poor, abuse and marginalizes women, sow distrust and feed corruption.  The result is societies marked by profound insecurity, by deep and growing inequities, and by the unacceptable toll on the health and well-being of girls and women.”

The long term goals of this initiative are to build a cadre of Ministers of Health and other senior leaders around the world who will, over time, explore, promote, and exchange learning on of the role of political leaders in strengthening the management and monitoring of health care systems with particular attention to women and children.

We are also involved in a project called ‘Parliamentarians for Women’s Health’, a three-year initiative working with select parliamentarians in Botswana, Kenya, Namibia and Tanzania to enhance the political leadership supporting women’s health. The project provides technical assistance and facilitates linkages to communities and women living with HIV and AIDS. The involvement of parliamentarians is expressly designed to bolster the accountability of elected officials to the citizens who need them most.

The Challenge

We are indeed at a critical stage in the development of human rights.  Women are proving to us that interest in human rights now spans the globe and surmounts race, class, gender, stage of development and even the current reaches of globalization—it has indeed become universal.  I doubt there has been a time when the subject has been accorded such a key role in political and economic debate.  Yet even as we welcome this evidence for the growing prominence of human rights – and specifically the rights of women - in the global arena, we inevitably come up against seemingly insurmountable walls.

To make effective progress it will be vital to place equal emphasis on all rights; civil, political, economic, social and cultural, as Eleanor Roosevelt did when she and her colleagues drafted the Universal Declaration of Human Rights. You remember her much quoted words:

"Where, after all, do universal human rights begin? In small places, close to home - so close and so small that they cannot be seen on any maps of the world. ………Unless these rights have meaning there, they have little meaning anywhere. Without concerted citizen action to uphold them close to home, we shall look in vain for progress in the larger world."

In our increasingly integrated world, we all bear a responsibility for human rights.  They are the business of everyone—our communities, our workplaces, our universities, and our governments.  We cannot leave behind those who do not so freely enjoy the fruits of democratic governments and economic stability; we share a common world and a common future.  We also jointly hold the power to shape it into a place where rights are enjoyed by all.

Let me build on Eleanor Roosevelt’s words in a 21^st century context.  We will only make concrete progress by developing multi-stakeholder engagements which include international organizations, such as the UN and World Bank, willing national governments, business, the trade union movement, civil society in its widest sense and academia, working together in new alliances helped by advances in information technology.  So, for human rights to matter “in small places” they must matter much more in the UN, World Bank, WTO, and in the board rooms of multinational corporations, as well as being tools of accountability used by civil society to hold governments to their promises.

In the end, human rights depend on how each one of us stands up for ourselves and for one another. 

So let me conclude:

There is another voice in my head at the moment, which helps to link the failure of leadership on tackling world poverty at the UN Summit last week with the grim images we have seen on TV in the aftermath of hurricane Katrina.  It is the voice of Martin Luther King.  I would like to conclude by saluting Ruth Ginsburg for her lifelong commitment to the role of law in furthering human rights, including women’s rights.  My tribute to her is to end with the voice of Martin Luther King, so that his words may ring on in our ears:

“There is no deficit in human resources; the deficit is in human will.  The well-off and the secure have too often become indifferent and oblivious to the poverty and deprivation in their midst.  The poor in our countries have been shut out of our minds, and driven from the mainstream of our societies because we have allowed them to become invisible.

Just as nonviolence exposed the ugliness of racial injustice, so must the infection and sickness of poverty be exposed and healed – not only its symptoms but its basic causes.  This, too, will be a fierce struggle, but we must not be afraid to pursue the remedy no matter how formidable the task”

Thank you.

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