Papers by Cochav Elkayam - Levy
Social Science Research Network, Feb 23, 2020
Social Science Research Network, Sep 10, 2015
Prisoners' hunger strikes and the issue of force-feeding have become a matter of concern ... more Prisoners' hunger strikes and the issue of force-feeding have become a matter of concern for many Western countries. The widespread and repeated nature of this situation, as well as its influence on prisoners' and detainees' fundamental rights, have troubled human rights scholars, governments, and international institutions and tribunals. The most intense conflict generally revolves around the set of rights protecting prisoners and detainees who freely choose to hunger strike-and put their lives in danger-and the duties of states to secure the right to life and health of persons under their custody. Though their roles are not often discussed, in practice, policymakers and various state officials are faced with serious complexities around the management of hunger strikes and have a critical part in their resolution. This article provides an in-depth analysis and a critical examination of international human rights norms that govern hunger strike situations and assesses their application in domestic settings. Based on this analysis, the article offers practical recommendations and guidance for state officials to enhance the protection of this distinct group of persons and to assure the development of human rights-based national policies.
Michigan Journal of International Law, 2021
Methods matter, and the discussion over feminist methods in international law is an important one... more Methods matter, and the discussion over feminist methods in international law is an important one. As Kathrine Bartlett famously noted, “thinking about method is empowering.” It makes us more aware of the nature of what we do and what we aim to improve in the law. Consequently, we can act more effectively when we examine legal structures and do it with a stronger sense of commitment towards our feminist work. Methods are also the fundamental means by which we produce “valid knowing.” The discussion of feminist methods in international law is one that engages with the combination of rules and assumptions that shape and delimit our views about the exclusion of women’s experiences from this doctrine. Methods determine the ways within those limits by which we aim to assert truth claims, determine our possibilities and conclusions, and establish the grounds for legal reform. Our chosen method defines what we consider as evidence and what we accept as proof. Yet, it cannot guarantee a par...
Many countries have recently experienced vibrant and heated internal discussions on religion and ... more Many countries have recently experienced vibrant and heated internal discussions on religion and state issues. The nature of these issues tends to be exceptionally poignant, touching the very essence of peoples' private beliefs and generally generating intense social and political tensions. One of the most controversial debates involves the tension between women's equality and religious freedom. A rigorous expression of it takes place in the European context, much of it surrounding the wearing of veils, headscarves, and other modest garments by Muslim women in the public sphere, all
Michigan Journal of International Law, Vol. 42, 2021, 2021
This article proposes the "woman question," a method that reveals the implications of legal rules... more This article proposes the "woman question," a method that reveals the implications of legal rules on women, as a potentially widely shared method in the study of international law. This question revolves around the impact of the law on women and is designed to expose those elements in the law that disadvantage women or submerge their perspectives in ways that might appear neutral. However, this central concept has been diluted over the years and has receded to the background of feminist thought. This paper brings it back to the foreground and develops the concept to make it an effective methodology for feminist scholars from a wide range of streams of feminist thought.
The article shows that the central feminist question in international law is in fact the woman question, probing: What is the impact of the law and its institutions on women? I argue that the question of gender impact is central to our understanding of the international system and can be widely shared. It allows us to look beyond abstract domestic and global concepts and to find the actual impact of rules on women within States. As I note in the article, "while this question seeks to highlight and address the continuing injustice that women experience, it also allows scholars to see beyond the gender binary in ways that take into consideration a spectrum of genders and the impact of the law on people of all genders. It proposes clarity and promises a feminist sensitivity to any analysis of international law. Above all, it solves a rather perplexing dilemma of a choice between the ramified feminist approaches."
Based on this method, I develop a unique analytical model that tackles the distinctive ways in which the international legal system perpetuates women’s inequality. The model is predicated on the evolving global idea of transformative equality asking us to reimagine the rules by which our society operates. It urges scholars to undertake a transformative reconstruction endeavor and is intended to encourage transformative processes that confront entrenched social and legal gendered structures within the international legal system. It requires a complicated intellectual effort to reimagine the future as means to move towards a gender-just global system. Hopefully, reimagining the future will be the most empowering, fulfilling, and transformative result of this work.
Harvard International Law Journal, Vol. 57, 2015, 2015
Prisoners' hunger strikes and the issue of force-feeding have become a matter of concern for many... more Prisoners' hunger strikes and the issue of force-feeding have become a matter of concern for many Western countries. The widespread and repeated nature of this situation, as well as its influence on prisoners' and detainees' fundamental rights, have troubled human rights scholars, governments, and international institutions and tribunals. The most intense conflict generally revolves around the set of rights protecting prisoners and detainees who freely choose to hunger strike-and put their lives in danger-and the duties of states to secure the right to life and health of persons under their custody. Though their roles are not often discussed, in practice, policymakers and various state officials are faced with serious complexities around the management of hunger strikes and have a critical part in their resolution. This article provides an in-depth analysis and a critical examination of international human rights norms that govern hunger strike situations and assesses their application in domestic settings. Based on this analysis, the article offers practical recommendations and guidance for state officials to enhance the protection of this distinct group of persons and to assure the development of human rights-based national policies.
University of Pennsylvania Journal of International Law, Vol. 35, No. 4, 2014, 2014
Many countries have recently experienced heated internal discussions over religion and state matt... more Many countries have recently experienced heated internal discussions over religion and state matters. These issues indeed tend to be exceptionally poignant, touching the very essence of peoples’ private beliefs and generally generating intense social and political arguments. One of the most controversial debates revolves around the tension between the protection of women’s rights to gender equality and to religious freedom. A rigorous expression of it takes place in the European context surrounding the wearing of veils, headscarves, and other modest garments by Muslim women (all of which are claimed to be protected as a manifestation of the right to freedom of religion). Several bans on the wearing of such religious attire have spawned a vast feminist literature laying out robust arguments of both opponents and proponents of the bans. Both sides make strong claims. On the one hand, some introduce sharp criticism of European courts' decisions to endorse the bans. The claim is that the rulings violate women’s religious rights as well as other rights (including the right to personal autonomy, the right of access to education and the right to employment). On the other hand, some assert that a secular approach - that would support and approve the bans - is vital for the protection of gender equality in our ever-growing multicultural democratic societies.
It is in this context that this paper discusses the European Court of Human Rights rulings in this matter and its decisions to dismiss the many claims of religious women. It critically analyzes the Court’s assessment in recent cases and argues against the questionable absence of a comprehensive legal analysis of the issues at stake in the Court’s judgments. The paper points to the Court's failure to fully engage with the complexity of the debate. Ultimately, it advances the argument that the Court’s approach stems from the current construction of religion as law’s “other”, i.e. as an extralegal field, incontestable in the conventional sense. In simple words, the law fails to properly handle religion and religious aspirations of women in the public sphere. As shown, unfortunately, not only religion is constructed as law’s other, but in the context of women's rights, the otherness is exacerbated. Legal demands involving women’s religious rights create a legal field so ‘sensitive’ and controversial, that the Court seems to be avoiding serious discussion and instead turns to make unfortunate generalizations. For the ECtHR, such course of rulings is troubling and even dangerous, particularly in light of the effect of its judgments on national courts, as well as on international human rights tribunals and institutions.
Tulane Law Review, Vol. 95, 1233, 2021
The right to freedom of religion and belief is a fundamental right of every woman. It articulates... more The right to freedom of religion and belief is a fundamental right of every woman. It articulates women's freedom to follow their aims and beliefs and protects their personal autonomy to pursue their chosen faith (be it theistic, non-theistic, or atheistic). It also guarantees that women would be able to freely express their diverse opinions, moral convictions, and experiences without social or other constraints. Yet this article reveals that women’s belief liberties are a blind spot in human rights law. The right to freedom of religion or belief has thus far been widely viewed by the international community as an obstacle to women's advancement;
Among many aspects of this problem, this article considers the implications of the omission of the right to freedom of religion or belief from the Women’s Convention. It shows that states receive little guidance on how to secure this right in ways that also respect the right to gender equality. It also identifies a conflict syndrome by which women are predominantly viewed through the lens of harmful practices. Lastly, it emphasizes the importance of this right for the protection of women and calls attention to the fact that, presently, no state is being systematically supervised for implementing this fundamental right of women. Examining possibilities for change, the article demonstrates that the right of women to gender equality and to freedom of religion or belief are inseparably linked and that international mechanisms protecting women’s belief liberties could tremendously contribute to advancing women’s equal status.
Drafts by Cochav Elkayam - Levy
Cornell International Law Journal, Vol. 52, 2021
The protection of women's right to freedom of religion or belief presents many challenges to libe... more The protection of women's right to freedom of religion or belief presents many challenges to liberal states. Yet, this fundamental right of women has not been recognized as such in global treaties. Women's entitlement to this right is a neglected matter in international law. When reference is made to the liberty to manifest religion, states are often given the vague guidance that discriminatory practices should be eliminated. However, what happens when it is women who choose to believe those supposedly oppressive practices to be the absolute truth from God? We tend to focus on the struggle between women's freedoms and religion, but forget that women are not a homogenous group, especially when it comes to their religious and faith aspirations. Some women wish to bring equality in their religious communities, some wish to remain secular, and others express deep attachment to their religious traditions despite conflicts with feminist ideas. The most complex dilemmas that states confront are those that present clashes between those diverse women's groups. This article reveals that the variety of women's religious and non-religious practices is not adequately reflected in the guidance given to states by human rights treaty bodies, and that states' challenges are left unattended. To date, only harmful practices committed against women and girls have been fully addressed and defined within numerous international sources. It is often obvious that international standards were formed and consolidated at a time when women were not considered as bearers of the right to freedom of religion or belief but as its victims. States are therefore left to develop their own understandings as to complexities in the protection of women's religious liberties. This article thus proposes a novel classification and suggests distinguishing between harmful, traditional and reformative practices of women. It lays out guidelines for the protection of such practices, in the hope that they assist human rights' advocates and policymakers in achieving the delicate balance needed in such situations to affirm women's belief liberties.
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Papers by Cochav Elkayam - Levy
The article shows that the central feminist question in international law is in fact the woman question, probing: What is the impact of the law and its institutions on women? I argue that the question of gender impact is central to our understanding of the international system and can be widely shared. It allows us to look beyond abstract domestic and global concepts and to find the actual impact of rules on women within States. As I note in the article, "while this question seeks to highlight and address the continuing injustice that women experience, it also allows scholars to see beyond the gender binary in ways that take into consideration a spectrum of genders and the impact of the law on people of all genders. It proposes clarity and promises a feminist sensitivity to any analysis of international law. Above all, it solves a rather perplexing dilemma of a choice between the ramified feminist approaches."
Based on this method, I develop a unique analytical model that tackles the distinctive ways in which the international legal system perpetuates women’s inequality. The model is predicated on the evolving global idea of transformative equality asking us to reimagine the rules by which our society operates. It urges scholars to undertake a transformative reconstruction endeavor and is intended to encourage transformative processes that confront entrenched social and legal gendered structures within the international legal system. It requires a complicated intellectual effort to reimagine the future as means to move towards a gender-just global system. Hopefully, reimagining the future will be the most empowering, fulfilling, and transformative result of this work.
It is in this context that this paper discusses the European Court of Human Rights rulings in this matter and its decisions to dismiss the many claims of religious women. It critically analyzes the Court’s assessment in recent cases and argues against the questionable absence of a comprehensive legal analysis of the issues at stake in the Court’s judgments. The paper points to the Court's failure to fully engage with the complexity of the debate. Ultimately, it advances the argument that the Court’s approach stems from the current construction of religion as law’s “other”, i.e. as an extralegal field, incontestable in the conventional sense. In simple words, the law fails to properly handle religion and religious aspirations of women in the public sphere. As shown, unfortunately, not only religion is constructed as law’s other, but in the context of women's rights, the otherness is exacerbated. Legal demands involving women’s religious rights create a legal field so ‘sensitive’ and controversial, that the Court seems to be avoiding serious discussion and instead turns to make unfortunate generalizations. For the ECtHR, such course of rulings is troubling and even dangerous, particularly in light of the effect of its judgments on national courts, as well as on international human rights tribunals and institutions.
Among many aspects of this problem, this article considers the implications of the omission of the right to freedom of religion or belief from the Women’s Convention. It shows that states receive little guidance on how to secure this right in ways that also respect the right to gender equality. It also identifies a conflict syndrome by which women are predominantly viewed through the lens of harmful practices. Lastly, it emphasizes the importance of this right for the protection of women and calls attention to the fact that, presently, no state is being systematically supervised for implementing this fundamental right of women. Examining possibilities for change, the article demonstrates that the right of women to gender equality and to freedom of religion or belief are inseparably linked and that international mechanisms protecting women’s belief liberties could tremendously contribute to advancing women’s equal status.
Drafts by Cochav Elkayam - Levy
The article shows that the central feminist question in international law is in fact the woman question, probing: What is the impact of the law and its institutions on women? I argue that the question of gender impact is central to our understanding of the international system and can be widely shared. It allows us to look beyond abstract domestic and global concepts and to find the actual impact of rules on women within States. As I note in the article, "while this question seeks to highlight and address the continuing injustice that women experience, it also allows scholars to see beyond the gender binary in ways that take into consideration a spectrum of genders and the impact of the law on people of all genders. It proposes clarity and promises a feminist sensitivity to any analysis of international law. Above all, it solves a rather perplexing dilemma of a choice between the ramified feminist approaches."
Based on this method, I develop a unique analytical model that tackles the distinctive ways in which the international legal system perpetuates women’s inequality. The model is predicated on the evolving global idea of transformative equality asking us to reimagine the rules by which our society operates. It urges scholars to undertake a transformative reconstruction endeavor and is intended to encourage transformative processes that confront entrenched social and legal gendered structures within the international legal system. It requires a complicated intellectual effort to reimagine the future as means to move towards a gender-just global system. Hopefully, reimagining the future will be the most empowering, fulfilling, and transformative result of this work.
It is in this context that this paper discusses the European Court of Human Rights rulings in this matter and its decisions to dismiss the many claims of religious women. It critically analyzes the Court’s assessment in recent cases and argues against the questionable absence of a comprehensive legal analysis of the issues at stake in the Court’s judgments. The paper points to the Court's failure to fully engage with the complexity of the debate. Ultimately, it advances the argument that the Court’s approach stems from the current construction of religion as law’s “other”, i.e. as an extralegal field, incontestable in the conventional sense. In simple words, the law fails to properly handle religion and religious aspirations of women in the public sphere. As shown, unfortunately, not only religion is constructed as law’s other, but in the context of women's rights, the otherness is exacerbated. Legal demands involving women’s religious rights create a legal field so ‘sensitive’ and controversial, that the Court seems to be avoiding serious discussion and instead turns to make unfortunate generalizations. For the ECtHR, such course of rulings is troubling and even dangerous, particularly in light of the effect of its judgments on national courts, as well as on international human rights tribunals and institutions.
Among many aspects of this problem, this article considers the implications of the omission of the right to freedom of religion or belief from the Women’s Convention. It shows that states receive little guidance on how to secure this right in ways that also respect the right to gender equality. It also identifies a conflict syndrome by which women are predominantly viewed through the lens of harmful practices. Lastly, it emphasizes the importance of this right for the protection of women and calls attention to the fact that, presently, no state is being systematically supervised for implementing this fundamental right of women. Examining possibilities for change, the article demonstrates that the right of women to gender equality and to freedom of religion or belief are inseparably linked and that international mechanisms protecting women’s belief liberties could tremendously contribute to advancing women’s equal status.