The UN has in recent decades made a concerted effort to bring the interests of women, and indeed other groups, from ‘margin to centre’. In addition to proclaiming that women’s rights were human rights, the Vienna Declaration, 1993 also proclaimed that “The human rights of women and of the girl-child are an inalienable, integral and indivisible part of universal human rights.” 241 There was a demand that women’s rights “be integrated into the mainstream of United Nations wide activity”.242 This call was taken up at the 1995 Beijing Conference.243 Thereafter, the policy of integrating a gender perspective into the work of the UN was formally adopted. The UN has sought to integrate gender through a process called mainstreaming which it defines as:
“…the process of assessing the implications for women and men of any planned action, including legislation, policies and programmes, in all areas and at all levels. It is a strategy for making women’s as well as men’s concerns and experiences an integral dimension of the design, implementation, monitoring and evaluation of policies and programmes in all political, economic and societal spheres so that women and men benefit equally and inequality is not perpetuated. The ultimate goal is to achieve gender equality.”244
Although there have been criticisms of the UN’s mainstreaming efforts, 245 there has been a marked improvement in the consideration of women’s rights within the UN not least in the work of human rights committees and special procedures. This section looks briefly at treaty body jurisprudence as it pertains to laws that discriminate against women. It concentrates on CEDAW jurisprudence on laws that discriminate
241 Vienna Declaration and Programme of Action, 1993, UN. Doc. A/CONF, 157/24 .
242 UNHCHR Report of the Expert Group Meeting on the Development of Guidelines for the Integration of a Gender Perspective into United Nations Human Rights Activities and Programmes, E/CN.4.1996/105, 20 November 1995; UN Coordination of the Policies and Activities of the Specialized agencies and other bodies of the United Nations system, E/1997/66, 12 June 1997.
Gallagher, A. “Ending the Marginalization: Strategies for Incorporating Women into the United Nations Human Rights System” (1997) HRQ 283, 284. DAW/OSAGI Gender Mainstreaming: An Overview (NY, UN, 2001), DAW/OSAGI Gender Mainstreaming: Strategy for Gender Equality (NY, UN, 2001).
243 Beijing Declaration and Platform for Action, para.229.
244 ECOSOC, Agreed Conclusions 1997/2, ch.1, para. A.
245 H. Charlesworth “Not Waving but Drowning: Gender Mainstreaming and Human Rights in the United Nations” (2005) 18 Harvard Human Rights Journal 1. S. Kouvo “The United Nations and Gender Mainstreaming: Limits and Possibilities” in D. Buss and A. Manji (eds) International Law:
Modern Feminist Approaches (Oxford, Hart, 2005), 237.
against women. Thereafter the work of special procedure mandate holders in this area is considered in outline.246
Treaty Bodies
Prior to the mid 1990s the human rights treaty bodies, apart from CEDAW, did not, in their general comments, pay much attention to the specific violations of women’s human rights.247 In 1998, the Human Rights Committee acknowledged that it had hitherto not taken a sufficiently gendered approach in it is interpretation of Covenant provisions in its general comments.248 The change was brought about by the move towards mainstreaming that followed the Vienna conference.249 It would appear that hereafter treaty bodies took seriously the Secretary-General’s injunction that in the field of human rights mainstreaming “involves realizing that there is a gender dimension to every occurrence of a human rights violation.”250 This can be seen by the adoption of general comments 28 by the Human Rights Committee,251 16 by the CESCR and 25 on intersectional discrimination by CERD, amongst many others. The consideration of treaty jurisprudence throughout this report is testament to the greater attention being paid by treaty bodies to issues pertaining to women’s rights including laws that discriminate against them.252 Although receiving fewer communications from women than from men, the Human Rights Committee has dealt with complaints pertaining to the rights of minority women,253 discriminatory laws on nationality254 and social security,255 reproductive issues,256 dress257 and temporary special measures.258
246 A consideration of the UN review process is beyond the scope of this report. See in general (2007) 7 Human Rights Law Review for an interesting collection of papers on this topic.
247 D. Otto (2002), 22. See also United Nations HRI Integrating the Gender Perspective into the Work of the United Nations Human Rights Treaty Bodies, HRI/MC/1998/6, 3 September 1998.
248 HRI/MC/1998/6, 3 September 1998, para 67
249 D. Otto (2002) 22. See also UN Integrating the Gender Perspective into the work of the United Nations Treaty Bodies, HRI/MC/1998/6, paras. 4-9.
250 Report of the Secretary-General on the Question of Integrating the Human rights of Women throughout the United Nations system, E/CN.4.1998/49, 25 March 1998, para. 9.
251 See also Human Rights Committee “Violence against Women in the Concluding Observations, General Comments, and Jurisprudence of the Human Rights Committee”, Internal document prepared for DAW, September 2005.
252 See also W. Vandenhole ( 2005) and A/HRC/4/104, 15 February 2007.
253 Lovelace v. Canada, Communication No. 24/1977, July 1981.
254 Aumeeruddy Cziffra v. Mauritius, (2000) AHRLR 3, Human Rights Committee, 1981.
255 Broeks v. the Netherlands, Communication No. 172/84, 9 April 1987; Zwaan-de Vries v.
Netherlands, Communication No. 182/84, 9 April 1987; Vos v. the Netherlands, Communication No.
218/1986, 29 March 1989.
256 Llantloy Huaman v. Peru, Communication No. 1153/2003.
There is greater cross-pollination between committees aided in part by the regular joint meetings of Committee chairpersons. It is not uncommon for reference to be made to the concluding observations of a different committee in the process of
“constructive dialogue” with a State party. Moreover, it is not unknown for committees to cite each other’s jurisprudence. An example of this is the concern expressed by the Committee on the Protection of Migrant Workers when considering the Mexico’s initial report to the Committee where it noted:
“However, the Committee remains concerned-like the Committee on the Rights of the Child-at the situation of extreme vulnerability of a great many unaccompanied minors…which leaves them at very high risk of exploitation of various kinds…”259 CEDAW
In its jurisprudence, the committee has always realised the importance of challenging discriminatory laws. It is currently working on a general recommendation on article 2 on State obligations.260 The first CEDAW general recommendation to mention discriminatory laws was the fifth on temporary special measures which noted that although much had been done to repeal or modify such laws, there was still a need to
“fully implement the Convention by introducing measures to promote de facto equality between men and women.”261 As noted in part A of the report, the use temporary special measures to address discrimination against women has gained currency. In its last general recommendation, 25 on temporary special measures CEDAW recommends that States parties:
“…should include, in their constitutions or in their national legislation, provisions that allow for the adoption of temporary special measures. The Committee reminds States parties that legislation, such as comprehensive anti-discrimination acts, equal opportunities acts or executive orders on women’s equality can give guidance on the type of temporary special measures that should be applied to have a stated goal, or goals in given areas. Such guidance can also be contained in specific legislation on
257 Hudoyberganova v Uzbekistan, Communication No. 931/2000, 5 November 2004.
258 Guido Jacobs v. Belgium, Communication No. 943/2000, 7 July 2004.
259 Committee on the Protection of the rights of Migrant workers and members of their families, Concluding Observations: Mexico, CMW/C/MEX/CO/1, 20 December 2006, at para. 41.
260 Center for Reproductive Rights “Article 2 of the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW): Comments for the formulation of general recommendation No. 26” CRR, New York, July 19, 2004. See also A. Byrnes, M. Hermina Graterol and R. Chartres IWRAW Asia Pacific Expert Group Meeting on CEDAW Article 2: National and International Dimensions of State Obligation, 14-16 February, Kuala Lumpur, Malaysia, Background Discussion Paper, prepared February 2007, revised May 2007. Available at: http:///www.iwraw-ap.org.
261 CEDAW general recommendation 5. See also CEDAW general recommendation 8.
employment or education. Relevant legislation on non-discrimination and temporary special measures should cover governmental actors as well as private organizations or enterprises.”262
It is in its general recommendations on violence that CEDAW first actively considered the impact of law on the ability of women to enjoy their rights. In general recommendation 12 it called on States parties to provide information on legislation that was in force to protect women “against the incidence of violence in every day life (including sexual violence, abuses in the family, sexual harassment in the workplace etc).263 Interestingly while it was silent on the use of law in its general recommendation 14 on female circumcision264, by the time of its influential general recommendation 19 on violence against women, legislation was seen as an important tool in the armoury for eradicating violence against women hence States were asked to consider changing their laws to deal with the myriad disadvantages faced by women as a result of gender based violence. Focusing on article 6 on trafficking and exploitation of prostitution, the Committee noted that because of their unlawful status prostitutes may be marginalized and that “they need the equal protection of laws against rape and other forms of violence.”265 The Committee further noted that armed conflict sometimes lead to an increase in sexual violence against women requiring
“specific protective and punitive measures.”266 In its recommendations, the Committee identified several legal measures that should be taken to eradicate violence against women including “criminal penalties where necessary and civil remedies in case of domestic violence”267 and also the suggestion that States introduce
“legislation to remove the defence of honour in regard to the assault or murder of a female family member.”268
CEDAW has also spent time considering the disadvantages experienced by women in the workplace and also the non recognition of their domestic labour.269 In so doing, it
262 CEDAW general recommendation 25, para. 31.
263 CEDAW general recommendation 12, para. 1.
264 This was remedied in CEDAW general recommendation 24 on health, para. 15 (d).
265 CEDAW general recommendation 19, para. 15.
266 Ibid, paras. 16, 24 (g) and (h). See also CEDAW general recommendation 24, para. 15 (a).
267 CEDAW general recommendation 19, para 24 (r) (i) and also para. 24 (t) (i).
268 Ibid, para. 24 (r) (ii).
269 CEDAW general recommendation 16 on Unpaid women workers in rural and urban family enterprises, UN Doc. A/46/38 (1991); CEDAW general recommendation 17 Measurement and
has urged States to create implementation machinery to put into place the provisions of CEDAW and the ILO Convention on equal pay for work of equal value270 and also to put into place laws outlawing sexual harassment in the work place.271
It is in its consideration of family life and the discrimination that women experience that CEDAW has paid the most attention in both state reporting and also consideration of discriminatory laws.272 To mark the international year of the family in 1994, the Committee produced general recommendation 21 on equality in marriage and family relations. It focused on articles 9 on nationality, 15 on equality and 16 on family relations. Identified as problematic are marital property systems that result in women losing their capacity, discriminatory procedural laws and domicile laws that indicate a wife’s domicile is to follow that of her husband.273 Identified as discriminatory and deserving of attention are States whose laws permit polygyny and which do not have a minimum age for marriage or provide for compulsory registration of marriages.274 Omissions in law and specifically the non recognition of de fact unions are identified as requiring State attention.275Discriminatory laws privileging parental responsibility of married over unmarried parents or mothers over fathers are to be addressed.276 Similarly laws enshrining discriminatory property entitlements on death or divorce are to be amended.277
In its general recommendation on political participation, CEDAW argues that compliance with and implementation of the rights of women is better in democratic States where there is “full and equal participation of women in public life and decision making.”278In addition to using temporary special measures279 to increase
quantification of the unremunerated domestic activities of women and their recognition in the gross national product, UN Doc. A/44/38 (1991).
270 CEDAW general recommendation 13 on equal remuneration for work of equal value, UN Doc.
A/44/38 (1989).
271 CEDAW general recommendation 19, para. 24 (t) (i).
272 CEDAW general recommendation 21, paras.45-50.
273 CEDAW general recommendation 21, paras 7-9, 17 and 31.
274 Ibid, paras. 14, 16, 36 and 39. See also CEDAW general recommendation 24, para. 15 (d).
275 Ibid, paras. 13 and 18.
276 Ibid, para. 19.
277 Ibid, paras. 25-35.
278 CEDAW general recommendation 23, para. 14.
279 Ibid, paras. 15 and 43.
the participation of women, States were obliged: to ensure that effective legislation is enacted prohibiting discrimination against women” 280 and also that:
“States parties are under an obligation to take all appropriate measures, including the enactment of appropriate legislation that complies with their Constitution, to ensure that organizations such as political parties, which may not be subject directly to obligations under the Convention, do not discriminate against women and respect the principles contained in articles 7 and 8.”281
Reproductive rights throw up challenges when considering the principle of equality and non discrimination. Clearly the liberal model of equality based on comparing similarly situated men and women does not work. Instead, there is a need to recognise differences between the sexes whilst ensuring that those differences do not result in one group, usually women, experiencing discrimination. In its general recommendation 24 on health, CEDAW defines States’ obligations as including:
“The duty…to ensure, on a balance of equality of men and women, access to health care services, information and education implies an obligation to respect, protect and fulfil women’s rights to health care. States parties have the responsibility to ensure that legislation and executive action and policy comply with these obligations.”282 While not prescribing abortion, CEDAW has recommended that punitive abortion laws should be amended as these lead to maternal mortality and morbidity.283 Other
“women specific” legal requirements included passing laws prohibiting female genital mutilation and early marriage.284 Moreover, States parties: “should not permit forms of coercion such as non-consensual sterilization, mandatory testing for sexually transmitted diseases or mandatory pregnancy testing as a condition of employment that violate women’s rights to informed consent and dignity.”285
The coming into force of the Optional Protocol to CEDAW, 1999286 provided an avenue for individuals to bring individual complaints alleging violations of the rights
280 Ibid, para. 47 (a). See also para 48 (a).
281 Ibid, para. 42.
282 CEDAW general recommendation 24, para. 13.
283 Ibid, para. 31(c): “When possible, legislation criminalizing abortion should be amended, in order to withdraw punitive measures imposed on women who undergo abortion.” See also para. 11.
284 Ibid, para. 15 (d).
285 Ibid, para. 22.
286 Optional Protocol to the Convention on the Elimination of all Forms of Discrimination against Women, 1999, GA Res 54/4, 6 October 1999. Sokhi-Bulley “The Optional Protocol to CEDAW: First Steps” (2006) 6 Human Rights Law Review 143.
in the Convention to the Committee. For those States not opting out, it also provided for the Committee to invoke article 8, the inquiry procedure, to investigate reports of grave or systematic violations of rights. It is noteworthy that one of the first cases dealt with by the Committee under the complaints provisions of the Optional Protocol to CEDAW relates to violence against women in the family and resulted in a recommendation that the State change its laws.287
In A.T. v Hungary, a woman had been severely assaulted by her partner on many occasions. She had complained to the police and the courts. However, little concrete assistance had come of her many complaints. A complaint was made to CEDAW. The Committee decided that Hungary had violated articles 2 (a), (b) and (e) as well as articles 5(a) and 16 of CEDAW. The Committee censured Hungary for not having provision in its law for restraining or protection orders. Moreover, it was censured for the absence of shelters to house Ms A.T and her children. The existing shelters had failed to offer refuge to Ms AT because one of her children was disabled and the refuges could not cope with children with disabilities. The prioritisation by the civil courts of the abuser’s property rights over the victim’s right to be protected from violence came under criticism. Echoing the recommendations found in its General Recommendation No. 19 on Violence Against Women and the General Assembly Declaration on the Elimination of Violence Against Women, 1993, the Committee made clear that to address the failings identified in the A.T. case, would require the State to undertake a range of measures which included providing legal aid, giving Ms AT and her children a safe and secure home, ensuring that she received the requisite child support, as well as compensation for the harm that she had suffered. In addition to implementing a national policy on the prevention of violence within the family, officials including judges and the police should be given training on CEDAW and its Optional Protocol. Moreover the State was to ensure the introduction of a specific law outlawing violence against women288and to: “Investigate promptly, thoroughly, impartially and seriously all allegations of domestic violence and bring the offenders to justice in accordance with international standards.”
287 A.T. v Hungary, Communication No. 2/2003, views adopted on 26 January, thirty-second session.
288 A. T. v. Hungary, para 11 (e).
The first inquiry undertaken by the CEDAW was to Mexico to investigate reports of abduction, rape and murder of women, made by two non government organisations (NGOs).289 The NGOs alleged that more than 230 women had been killed near Ciudad Juarez and that little had been done to investigate their deaths and disappearances or indeed to bring the perpetrators to justice. Families of the victims had been kept in the dark. The Committee sent two of its members to investigate. In a long and comprehensive report the Committee detailed the widespread violence against women and the fact that a culture of impunity appeared to have developed.
The Committee produced a comprehensive list of recommendations for Mexico to implement. These included timely investigation of crimes committed against women, training of police and judges, ensuring that families were kept appraised of progress in investigations and that the law was enforced with punishments being meted out to the guilty and adequate remedies including compensation for those who had experienced violations of their rights. The State was asked to report on progress in its next report under article 18 of the Convention.
CEDAW has also, from the outset, engaged with States about laws that discriminate against women and also de facto discrimination.290 Questionnaire responses indicated that in some instances, changes had been made to the law as a result of the State-committee dialogue so that the OHCHR response from Guatemala noted: “a provision regarding the possibility of avoiding prison for a rapist that would marry the victim
289 CEDAW Committee “Report on Mexico Produced by the Committee on the Elimination of all Forms of Discrimination against Women Under article 8 of the Optional Protocol to the Convention and Reply from the Government of Mexico”, UN Doc. CEDAW/C/2005/OP.8/MEXICO, January 27, 2005.
290 Concluding comments of the Committee on the Elimination of Discrimination against Women to the combined second and third periodic report of Azerbaijan (CEDAW/C/AZE/2-3) at its 765th and 766th meetings, on 23 January 2007.
CEDAW/C/AZE/CO/3, paras. 13 and 14. Concluding comments of the Committee on the Elimination of Discrimination against Women to the combined third and fourth periodic reports of Belgium (CEDAW/C/BEL/3-4) at its 559th and 560th meetings, on 10 June 2002 (see CEDAW/C. SR.559 and 560) CEDAW A/57/38 part II (2002), para. 166. Concluding comments of the Committee on the Elimination of Discrimination against Women to the combined initial, second, third, fourth and fifth periodic report of Brazil (CEDAW/C/BRA/1-5) at its 610th,
CEDAW/C/AZE/CO/3, paras. 13 and 14. Concluding comments of the Committee on the Elimination of Discrimination against Women to the combined third and fourth periodic reports of Belgium (CEDAW/C/BEL/3-4) at its 559th and 560th meetings, on 10 June 2002 (see CEDAW/C. SR.559 and 560) CEDAW A/57/38 part II (2002), para. 166. Concluding comments of the Committee on the Elimination of Discrimination against Women to the combined initial, second, third, fourth and fifth periodic report of Brazil (CEDAW/C/BRA/1-5) at its 610th,