(Source: Human Rights Law Teaching Material
Demelash Shiferaw & Yonas Tesfa)
The inferior status of women is entrenched in history, culture and tradition. Through the ages, national and religious institutions have been called upon to justify violations of women’s rights to equality and enjoyment of fundamental human rights. Even now, women are subject to discrimination in all stages of life; in income, education, health and participation in society and they are particularly vulnerable to specific violations such as gender-based violence, trafficking and sex discrimination. Various international bodies have been established with the aim of eradicating policies, actions and norms that perpetuate discrimination against women and violate women’s human rights.
International Human Rights Standards
After the Second World War, a number of treaties on the protection of women were drafted and both the UN Charter and the International Bill of Human Rights (see e.g. Article 3 of ICESCR and Article 3 of ICCPR) proclaim equal rights for men and women and ban discrimination on the grounds of sex. In addition to instruments relating to discrimination in general, a whole series of instruments have been developed specifically for the protection of women, the elimination of discrimination against women and the promotion of equal rights. These serve to create a broad, international framework for future developments and the establishment of general norms for national policy.
One of the most important instruments for the protection of women is the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which was adopted by the UNGA on 18 December 1979, following consultations over a five-year period by various working groups, the CSW and the UNGA. It entered into force in 1981. The 30-article Convention sets out internationally accepted principles and measures to achieve equal rights for women everywhere. As of July 2004, 177 states were parties to CEDAW.
The CEDAW reflects the scope of exclusion and restriction suffered by women solely on the basis of their sex. It sets out equal rights for women, regardless of their marital status, in all fields - political, economic, social, cultural and civil and calls for national legislation banning discrimination. It allows for temporary special measures (‘affirmative action’) to accelerate the achievement of equality in practice between men and women (Article 4), and actions to modify social and cultural patterns that perpetuate discrimination (Article 5). Other measures aim at equal rights for women in political and public life (Article 7); equal access to education and equal choice of curricula (Article 10); non-discrimination in employment and pay (Article 11); and guarantees of job security in the event of marriage and maternity (Article 11). The Convention underlines equal responsibilities of men with women in the context of family life (Article 16). It also stresses the social services needed - especially childcare facilities - for combining family obligations with work responsibilities and participation in public life (Article 11).
Furthermore, articles of the Convention call for non-discriminatory health services for women, including services related to family planning, and equal legal capacity to that of men. States Parties agree that all contracts and other private instruments that restrict the legal capacity of women’shall be deemed null and void’ (Article 15). Special attention is given to the problems of rural women (Article 14).
It should be noted that the effectiveness of the Convention in promoting the rights it contains is significantly undermined by the numerous reservations made by States Parties. Most reservations aim to preserve religious and national institutions that are contrary to the rights guaranteed and many are obviously incompatible with the object and purpose of the Convention.
On 6 October 1999, the General Assembly adopted an Optional Protocol to the CEDAW, which entered into force in 2000. The Protocol establishes a procedure that allows individual women, or groups of women, to submit claims of violations of rights protected under the Convention to the CEDAW Committee. In July 2004, 60 states had ratified the Optional Protocol.
Other universal instruments relating to the rights of women include the UN Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others (1949), the UN Convention on the Political Rights of Women (1952) and the UN Convention on the Nationality of Married Women (1957). Furthermore, the Rome Statute of the International
Criminal Court (1998) Article 7 establishes that rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation and other forms of sexual violence are each to be considered a crime against humanity.
The CEDAW establishes the Committee on the Elimination of Discrimination Against Women to oversee the implementation of the rights it guarantees (for further analysis of the Convention and Committee see XX). The Committee acts as a monitoring system to oversee the implementation of the Convention. This is done principally by examining reports submitted by states parties, but in 1999, an optional protocol expanded the powers of the Committee to include competence to receive individual complaints. This procedure allows individuals and groups of individuals, alleged victims of violations, to file a complaint against states parties to the protocol. As has been examined, the Optional Protocol also establishes a distinctive feature: an inquiry procedure that allows the Committee to initiate investigations into suspected grave or systematic violations by a state party of the rights contained in the Convention. In this regard the Committee can carry out visits to the country in question.
The Committee has contributed significantly to the interpretation of the obligations imposed by the Convention through its General Recommendations which have dealt with several issues of utmost importance for women such as violence against women (General Recommendation No. 12 - Violence against women); equal remuneration for work of equal value (General Recommendation No. 13 - Equal remuneration for work of equal value); female circumcision
(General Recommendation No. 14 - Female circumcision); AIDS (General Recommendation No. 15 - Avoidance of discrimination against women in national strategies for the prevention and control of acquired immunodeficiency syndrome); violence against women (General Recommendation No. 19 - Violence against women); equality in marriage and family relations (General Recommendation No. 21 - Equality in marriage and family relations); women’s political rights (General Recommendation No. 23 - Political and Public Life) and women and health (General Recommendation No. 24 - Women and Health).
Although the CEDAW Committee has the competence to receive individual complaints, to date no individual cases have been decided. Individual communications regarding sex-discrimination have, however, been brought to the Human Rights Committee. In the Mauritanian Women Case (Aumeeruddy Cziffra and 19 other Mauritanian Women v. Mauritius), the Committee found that an immigration law giving certain status to wives and not husbands made an adverse distinction on the grounds of sex on the right to be free from arbitrary and unlawful interference with the family and was in violation of the ICCPR. Another case brought before the Human Rights Committee dealt with a law that stipulated that married women could not claim continued unemployment benefits unless they proved they were either ‘breadwinners’ or that they were permanently separated from their husbands. This condition did not apply to married men. The Committee found a violation of Article 26 ICCPR (non-discrimination) on the grounds of sex (Broeks v. The Netherlands). Article 26 is ‘free-standing’, meaning that it can be applied to discriminatory laws, whether or not the subject matter is covered by provisions of the ICCPR. ICCPR (for further analysis see the right to equality and non-discrimination part 3.12).
In addition, mention should be made of the UN Commission on the Status of Women, which has a mandate to consider confidential and public communications on the status of women. During each session, a Working Group of five members, selected with due regard for geographical distribution, gathers in closed meetings to consider communications addressed to the Commission and those pertaining to women received by the Office of the High Commissioner for Human Rights, including the replies of governments thereto, with a view to bringing to the attention of the Commission those communications which reveal a consistent pattern of reliably attested injustice and discriminatory practices against women. The Commission may make recommendations to ECOSOC regarding the complaints submitted; what steps are to be taken is decided by ECOSOC.