Abstract:
Given the absence of a theory of law that can explain the processes by which human rights law is drafted, this theory attempts to explain the drafting and function of human rights law, in light of the drafting of Article 6 of the Convention on the Elimination of All Forms of Discrimination Against Women. It presents a theory of discursive formation which explains the construction of the ‘discourse of human rights’, and describes the development of this discourse from its immediate historical antecedents to the drafting of CEDAW. The logic of the text of Article 6 and the immediate social situation in which it was drafted are then examined; it is found that the inclusion of Article 6 in CEDAW cannot completely be explained by reference to these elements of drafting. Accordingly a theory is developed of the drafting of human rights law that explains how agreement to the terms of human rights law is obtained through reference to the operation of a system of precedents. That is, consent is obtained to the terms of human rights law via the material for the law being drawn from authorized sources. It is then postulated that any human rights law functions as a founding text which effects an actor's attempt to extend its authority into new areas by simultaneously establishing a discourse of justice and an institution which is authorized to issue statements regarding that discourse. It is via this issuance of statements that the institution governs the domain circumscribed by the discourse of justice. The final sections of the thesis describe how the CEDAW Committee has governed the area ascribed to it by CEDAW via the issuance of statements, thereby confirming the theory of the drafting and the function of human rights law.
