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Max Planck Encyclopedia of Public International Law [MPEPIL]

Women, Rights of, International Protection

Christine Chinkin

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 20 February 2019

Subject(s):
Women, rights — Equality before the law — Right to work — Right to vote and to be elected — Right to family — Human rights remedies — Gender — Vienna Convention on the Law of Treaties — Treaties, application

Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.

A.  Non-Discrimination on the Ground of Sex

The international law of human rights offers considerable guarantees to women through binding treaties supplemented by international soft law and supported by specialist institutions. The regional human rights systems have also given attention to the question of women’s human rights.

The International Council for Women argued unsuccessfully for the inclusion of women’s rights in the Covenant of the League of Nations (see also Feminism, Approach to International Law). The question of the status of women was placed on the League of Nations’ agenda in 1935 and a Committee of Experts appointed in 1937 to carry out an inquiry into the legal status of women in the various States of the world, but World War II prevented any progress (see also History of International Law, World War I to World War II). In the absence of any general provisions on women’s rights, protective measures were adopted in limited and specified circumstances. For example in 1919 the International Labour Organization (ILO) adopted the Convention (No 3) concerning the Employment of Women before and after Childbirth ([adopted 28 November 1919, entered into force 13 June 1921] 38 UNTS 53) and the Convention (No 4) concerning Employment of Women during the Night ([adopted 28 November 1919, entered into force 13 June 1921] 38 UNTS 67). The protective approach entailed restrictions imposed upon women’s choices, for example because of their reproductive and caring roles, assumptions about what constitutes suitable work for women, or a desire to reserve lucrative employment for men. The League of Nations also addressed trafficking of women through the International Convention for the Suppression of Traffic in Women and Children ([adopted 30 September 1921, entered into force 15 June 1922] 9 LNTS 415) and the Convention for the Suppression of Traffic in Women of Full Age ([adopted 11 October 1933, entered into force 24 August 1934] 150 LNTS 431; see also Human Trafficking).

In 1945 concerted lobbying by women delegates and non-governmental organizations (‘NGOs’) accredited to the San Francisco Conference establishing the United Nations, including those acting under the umbrella of the Inter-American Commission on the Status of Women, were instrumental in ensuring that non-discrimination on the ground of sex was included in the United Nations Charter (Human Rights, Role of Non-Governmental Organizations). The preamble of the UN Charter refers to ‘the equal rights of men and women’ and Art. 1 (3) UN Charter includes as a purpose of the UN the promotion and encouragement of respect for human rights and fundamental freedoms for all without distinction based, inter alia, on sex. Following this up, Art. 55 UN Charter states that the UN shall promote ‘universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion’ (see also Equality of Individuals). Art. 8 UN Charter follows Art. 7 League Covenant by referring explicitly to participation within the Organization. Art. 8 UN Charter provides that the UN will ‘place no restrictions on the eligibility of men and women to participate in any capacity and under conditions of equality in its principal and subsidiary organs’. Since the adoption of the UN Charter the major focus of the legal protection of women’s rights has been the right to equal treatment and non-discrimination on the basis of sex.

The Commission on the Status of Women (‘CSW’) was created by United Nations Economic and Social Council (‘ECOSOC’) Resolution 11 (II) of 21 June 1946 (United Nations, Economic and Social Council [ECOSOC]). The CSW was first established as a sub-commission of the UN Commission on Human Rights (United Nations Commission on Human Rights/United Nations Human Rights Council) but was then bestowed with commission status as the major policy-making body for all issues concerning women. Its 1947 mandate was to prepare recommendations and reports for the ECOSOC on promoting women’s rights in political, economic, civil, social and educational fields (see also General Comments/Recommendations; Reporting Systems). This was extended to include standard setting activities. The CSW was instrumental in ensuring the inclusion of equality and non-discrimination clauses in Art. 2 Universal Declaration of Human Rights (1948) (‘UDHR’), Arts 2 and 26 International Covenant on Civil and Political Rights (1966) (‘ICCPR’), and Arts 2 and 3 International Covenant on Economic, Social and Cultural Rights (1966).

The CSW was also responsible for conventions that addressed particular areas of discrimination against or exclusion of women. The Convention on the Political Rights of Women ([adopted 20 December 1952, entered into force 7 July 1954] 193 UNTS 135) asserts women’s equal right to vote, to be elected to public office and to exercise public functions (see also Elections, Right to Participate in, International Protection). The Convention on the Nationality of Married Women ([adopted 29 January 1957, entered into force 11 August 1958] 309 UNTS 65) provides that marriage and dissolution of marriage shall not affect women’s nationality and facilitates naturalization to the nationality of a foreign husband. The Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages ([adopted 7 November 1962, entered into force 9 December 1964] 521 UNTS 231) requires the full and free consent of both parties to marriage, the registration of marriages and that States legislate a minimum age for marriage, but does not specify that age.

The CSW worked with UN specialized agencies on giving effect to provisions in the UDHR, for example with respect to the right to work (United Nations, Specialized Agencies; see also Work, Right to, International Protection). Its recommendations to the ILO were adopted in the Convention (No 100) concerning Equal Remuneration for Men and Women Workers for Work of Equal Value ([adopted 29 June 1951, entered into force 23 May 1953] 165 UNTS 303). Later ILO conventions include Convention (No 111) concerning Discrimination in Respect of Employment and Occupation Discrimination ([adopted 25 June 1958, entered into force 15 June 1960] 362 UNTS 31), Convention (No 156) concerning Equal Opportunities and Equal Treatment for Men and Women Workers: Workers with Family Responsibilities ([adopted 23 June 1981, entered into force 11 August 1983] 1331 UNTS 295), and Convention (No 183) concerning the Revision of the Maternity Protection Convention (Revised) ([adopted 15 June 2000, entered into force 7 February 2002] 218 UNTS 253). In 1960 the United Nations Educational, Scientific and Cultural Organization (UNESCO) adopted the Convention against Discrimination in Education ([adopted 14 December 1960, entered into force 22 May 1962] 429 UNTS 93).

B.  The Convention on the Elimination of All Forms of Discrimination against Women

1.  Substantive Provisions

1975 was designated by the UN as International Women’s Year. The subsequently proclaimed UN Decade for Women, 1975–85, was marked by the three World Conferences on Women: Mexico City (1975), Copenhagen (1980) and Nairobi (1995) (see also Conferences and Congresses, International). The most significant achievement of the UN Decade for Women with respect to the protection of women’s rights was the adoption of the Convention on the Elimination of All Forms of Discrimination against Women (‘CEDAW’) by UNGA Resolution 34/180 of 18 December 1979 (see also United Nations, General Assembly). In 2010 the CEDAW, the UN’s ‘landmark treaty in the struggle for women’s rights’ (The United Nations and the Advancement of Women 1945–1995 5) had 186 States Parties from all regions of the world making it the second most widely ratified human rights treaty.

The CEDAW draws upon, extends and puts into legally binding treaty form the Declaration on the Elimination of Discrimination against Women (UNGA Res 2263 [XXII] [7 November 1967]; see also Declaration). The CEDAW’s preamble notes the concern that despite the various international instruments directed towards women’s rights, ‘extensive discrimination against women continues to exist’. Art. 1 CEDAW defines discrimination as:

any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.

UnderArt. 2 CEDAW States ‘agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women’ (see also Human Rights, Domestic Implementation). States agree to take steps to achieve this goal through legislative measures (Art. 2 (a), (b) CEDAW), the establishment of competent tribunals (Art. 2 (c) CEDAW), and appropriate measures ‘to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women’ (Art. 2 ( f) CEDAW). States’ obligations extend to private persons for appropriate measures for the elimination of discrimination must be taken against ‘any person, organization or enterprise’ (Art. 2 (e) CEDAW; see also Human Rights, Treaties, Third-Party Effect). Temporary special measures to accelerate de facto equality between women and men are provided for in Art. 4 CEDAW and pursuant to Art. 5 CEDAW States shall take all appropriate measures to ‘modify social and cultural patterns of behaviour to eliminate prejudicial practices and attitudes’.

In its substantive provisions the CEDAW requires States to take appropriate measures to eliminate discrimination against women and to ensure specified rights to women on equal terms with men. These include rights in political and public life (Art. 7 CEDAW), international organizations (Art. 8 CEDAW), nationality (Art. 9 CEDAW), education (Art. 10 CEDAW), employment (Art. 11 CEDAW), healthcare (Art. 12 CEDAW), financial credit (Art. 13 (b) CEDAW), cultural life (Art. 13 (c) CEDAW; Cultural Life, Right to Participate in, International Protection), the rural sector (Art. 14 CEDAW), before the law (Art. 15 CEDAW) and within the family (Art. 16 CEDAW; see also Family, Right to, International Protection). Art. 6 CEDAW exceptionally does not specify equality as the required standard but requires States to ‘take all appropriate measures … to suppress all forms of traffic in women and exploitation of prostitution of women’.

10  The CEDAW provides for equality in civil, political, economic, social and cultural rights, recognizing that the utility of civil and political rights is reduced for women if account is not taken of the economic, social and cultural environment in which they operate. It identifies areas where discrimination against women is most marked and where women most need guarantees of equality. The CEDAW also attempts to overcome the public/private dichotomy observed in international law. For example, it asserts women’s equal rights to participate in public decision-making bodies at all levels and also explicitly affirms women’s right to equality in a limited way within the private arena of the family (see also Family, Right to, International Protection; Privacy, Right to, International Protection).

2.  Enforcement and Implementation

11  As indicated by Art. 17 CEDAW enforcement of the CEDAW follows the pattern of other UN human rights treaties through the establishment of an independent expert committee comprising 23 members (‘CEDAW Committee’; Human Rights, Treaty Bodies). The CEDAW provides for monitoring through the scrutiny of States’ reports (Human Rights, State Reports). Within a year of its becoming bound by the CEDAW and subsequently every four years, each State party must submit a report to the CEDAW Committee on the legislative, judicial, administrative or other measures it has taken to give effect to the CEDAW. In public session the CEDAW Committee engages in constructive dialogue with the State about the report. In its Concluding Comments it makes recommendations with respect to areas of concern. Women’s NGOs frequently engage with the process through issuing alternative—shadow—reports to and advising the CEDAW Committee of their concerns, and lobbying States to comply with the Concluding Comments. Since 2008 the CEDAW Committee has requested State Parties to provide within one year written information on the steps undertaken to implement the recommendations contained in the Concluding Comments.

12  Art. 29 CEDAW provides for the jurisdiction of the International Court of Justice (ICJ) for disputes with respect to the interpretation and application of the CEDAW that have not been settled by negotiation, or where the parties are unable to agree on arbitration (see also International Courts and Tribunals, Jurisdiction and Admissibility of Inter-State Applications). The Democratic Republic of the Congo (Congo, Democratic Republic of the) relied on this provision in asserting jurisdiction against Rwanda in the Armed Activities on the Territory of the Congo Cases, although the ICJ did not accept this submission (Armed Activities on the Territory of the Congo [New Application: 2002] [Democratic Republic of the Congo v Rwanda] [Jurisdiction of the Court and Admissibility of the Application] [3 February 2006] ICJ Doc 2006 General List No 126).

13  The Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women of 1999 (‘Optional Protocol’) provides two further procedures for States Parties to the Optional Protocol. These are a communication procedure for individuals or groups pursuant to Art. 2 Optional Protocol and an inquiry procedure under Art. 8 Optional Protocol where there is reliable information of ‘grave or systematic’ violations (Human Rights, Individual Communications/Complaints; see also Human Rights, Remedies). Following Art. 12 Optional Protocol States Parties may opt out of the inquiry procedure.

14  The CEDAW Committee has completed one inquiry into the many abductions, rapes and murders of women in and around Ciudad Juárez, Mexico (see also Gender-Based Crimes). It found that the repetition of such serious forms of violence over a sustained period of time showed systematic violence ‘founded in a culture of violence and discrimination that is based on women’s alleged inferiority’ that gives rise to a culture of impunity (Report on Mexico produced by the Committee on the Elimination of Discrimination against Women under Article 8 of the Optional Protocol to the Convention, and Reply from the Government of Mexico para. 261). It has also issued reports and recommendations in response to individual communications. For example, in Ms AT v Hungary the CEDAW Committee found violations of Arts 2 (a), (b), and (e) and 16 CEDAW through ineffective responses by the State’s authorities to many years of severe domestic violence by the complainant’s common law husband. The CEDAW Committee noted that Hungary admitted that there were no remedies available capable of protecting Ms AT and that although legal reforms had been commenced they remained inadequate to benefit the complainant (Communication No 2/2003 Ms AT v Hungary para. 9.3). By 2010 the CEDAW Committee has considered 10 communications submitted under the Optional Protocol. In three other cases the Committee found the State against which the communication was made to be in violation of the convention. Two concerned domestic violence (Communication No 5/2005 Goekce v Austria [6 August 2007] UN Doc CEDAW/C/39/5/2005; Communication No 6/2005 Yildirim v Austria [6 August 2007] UN Doc CEDAW/C/39/6/2005) and one the forcible sterilization of a Roma woman (Communication No 4/2004 AS v Hungary [14 August 2006] UN Doc CEDAW/C/36/D/4/2004). Six communications were considered to be inadmissible under Art. 4 Optional Protocol.

3.  General Recommendations

15  The CEDAW Committee has explained and developed the meaning of the terms of the CEDAW through the 25 General Recommendations it had adopted by 2010. Especially significant is General Recommendation No 19 of 1992. Although gender-based violence against women is not explicitly included within the CEDAW, the CEDAW Committee asserted in this recommendation that gender-based violence is a ‘form of discrimination that seriously inhibits women’s ability to enjoy rights and freedoms on a basis of equality with men’ (General Recommendation No 19 para. 1). Gender-based violence is defined as ‘violence that is directed against a woman because she is a woman or that affects women disproportionately’ (ibid para. 6). General Recommendation No 19 requires the State to exercise due diligence in preventing, investigating and punishing gender-based violence whether committed by public or private persons. Other General Recommendations adopted by the CEDAW Committee have covered equality in marriage and family relations (General Recommendation No 21 of 1994), women and health (General Recommendation No 24 of 1999), women’s participation in public and political life (General Recommendation No 23 of 1997), and the meaning of ‘temporary special measures’ (General Recommendation No 25 of 2004).

4.  Reservations

16  The CEDAW Committee has expressed concern about the number and effect of reservations to the CEDAW (Treaties, Multilateral, Reservations to). The CEDAW has been particularly susceptible to sweeping reservations and interpretive declarations (Treaties, Declarations of Interpretation), including to the first five articles, which are critical to the fulfilment of its objectives. Especially problematic are reservations to the effect that domestic law prevails in whole or in part and a number of differently worded reservations to the common effect that either the CEDAW as a whole, or specified articles—typically Arts 9 (2), 15 (4) and 16 CEDAW—are not binding in so far as there is conflict with traditions or customs, or with Islamic ‘Sharia’ law (see also Islamic Approach to International Law). Many States have made reservations to Art. 29 CEDAW, which is explicitly provided for in Art. 29 (2) CEDAW. Art. 28 (2) CEDAW follows the Vienna Convention on the Law of Treaties (1969) by prohibiting reservations incompatible with the object and purpose of the CEDAW but does not specify the consequences of an incompatible reservation or of an objection to a reservation (see also Treaties, Object and Purpose). With respect to reservations to Art. 2 CEDAW it is unclear what area of common ground can remain between the reserving and objecting States. While some, primarily European, States have objected to some such reservations and consider them to be incompatible with the object and purpose of the CEDAW, only around 10% of States have objected to reservations made to the CEDAW, and objections have generally been made without prejudice to its entry into force between the reserving State and the objector.

17  In its General Recommendations No 4 of 1987 and No 20 of 1992 the CEDAW Committee has expressed concern about the significant number of reservations that appear to be incompatible with the CEDAW’s object and purpose and suggested that States Parties reconsider such reservations with a view to withdrawing them. The CEDAW Committee has also reiterated the Recommendations of the Vienna World Conference on Human Rights (1993) that States be encouraged to limit the extent of any reservations to international human rights instruments, that they formulate their reservations as narrowly as possible, ensure none is incompatible with the object and purpose of the treaty, and regularly review any reservations with a view to withdrawing them. By requiring States to explain their reservations, the CEDAW Committee can investigate their scope, impact and the reasons for failure to comply with a timetable for their withdrawal, or for not submitting one. The CEDAW Committee has determined that its own Concluding Comments on States’ reports should include a section on reservations and it has attempted to integrate its approach to reservations with that of other UN bodies (see also Human Rights, Activities of International Organizations). It has also requested the UN Secretary-General to write to States that have made substantive reservations in order to draw their attention to the Committee’s concern (United Nations, Secretary-General).

C.  Women’s Rights are Human Rights

18  The rationale for the prohibition of discrimination on the basis of sex is equality of women with men. International law recognizes that formal or de iure equality, equal treatment required by law, is insufficient to achieve this objective. What is also needed is equality of opportunity, that is ensuring women and girls have the same choices and possibilities open to them as do men. This requires identification of the economic, social, cultural and political obstacles that impede women’s equality, even where this is the required legal standard. For example girls may be unable to attend school not because of lack of legal entitlement but for reasons such as son preference, families requiring girls to care for siblings or perform domestic tasks, lack of facilities for menstrual hygiene, child marriage, and pregnancy. The CEDAW promotes equality of opportunity.

19  Further, equality may not be the appropriate standard where there is no male comparator—for example loss of employment for a pregnant woman—or in the context of gender-specific harms to women, such as the many forms of violence women experience because they are women, for example domestic violence, honour killings, dowry deaths, forced marriage, and female genital circumcision. This has been a focus of campaigning by women’s NGOs and is why the recognition in the CEDAW Committee General Recommendation No 19 that gender-based violence against women is a form of discrimination and contrary to the CEDAW is so important.

20  Work on combating violence against women has been continued and developed through the Vienna Declaration and Programme of Action (‘Vienna Declaration’; part II para. 38), the General Assembly Declaration on the Elimination of Violence against Women (UNGA Res 48/104 [20 December 1993]), the ‘Beijing Declaration and Platform for Action’ (paras 112–30), the Further Actions and Initiatives to Implement the Beijing Declaration and Platform for Action (Outcome Document) (UNGA Res S-23/3 [16 November 2000] paras 13–14 and 69), since 1994 the work of the Commission on Human Rights/Human Rights Council’s Special Rapporteur on Violence against Women (Special Rapporteurs of Human Rights Bodies).

21  Since 2000 the UN General Assembly has adopted many resolutions both on violence against women in general and on violence against women in specific contexts (eg armed conflict), on violence against especially vulnerable women (eg migrant women), and with respect to particular forms of violence (eg crimes against honour, domestic violence, and trafficking). UNGA Resolution 58/185 of 22 December 2003 requested the UN Secretary-General to carry out an in-depth study on violence against women which was presented to the UN General Assembly in 2006. The Study encompasses multiple forms and manifestations of such violence in a range of settings (UNGA ‘In-Depth Study on All Forms of Violence against Women: Report of the Secretary-General’ [6 July 2006] UN Doc A/61/122/Add.1). Taking note of the Study, the General Assembly resolved ‘on the intensification of efforts to eliminate all forms of violence against women’, and requested an annual report on implementation of its recommendations relating to violence against women, including follow-up procedures (UNGA Res 61/143 [19 December 2006]). The Secretary-General has also produced a number of other reports. In 2008 the Secretary-General launched a Campaign UNiTE to End Violence against Women, 2008–15, with the overall objective to raise public awareness and increase political will and resources for preventing and responding to all forms of violence against women and girls. UNGA Resolution 63/155 of 18 December 2008 welcomed the launch of the Secretary-General’s campaign and stressed the need for concrete follow-up activities by the United Nations system. In June 2008 the General Assembly held a thematic debate on human trafficking and adopted Resolution 63/156 on 18 December 2008 on trafficking in women and girls.

22  The assertion in UNGA Resolution 48/104 of 20 December 1993 that ‘violence against women is a manifestation of historically unequal power relations between men and women, which have led to domination over and discrimination against women by men and to the prevention of the full advancement of women’ recognizes the structural and systemic bases of women’s subordination that must be redressed by giving effect to the Vienna Declaration’s understanding that the ‘human rights of women and of the girl-child are an inalienable, integral and indivisible part of universal human rights’ (Vienna Declaration Part I para. 18).

23  This understanding of equality goes beyond de iure equality so as to ensure to women throughout their life cycle, the same choices, respect and integrity, and the same understanding of human dignity as is accorded to men (see also Human Dignity, International Protection). Gender equality thus encompasses women’s empowerment through participation, accountability for the violation of their human rights and State and individual responsibility for gender-specific violations of human rights law, such as violence against women whether committed by State or non-State actors and whether committed in armed conflict or non-conflict situations (see also Armed Conflict, International; Armed Conflict, Non-International; Civilian Population in Armed Conflict). It seeks to ensure the full legal and civic status of women across the spectrum of public and private activity in matters such as ownership of property, access to credit, freedom of movement, rights before, during and after marriage, equal pay for equal work (see also Movement, Freedom of, International Protection; Property, Right to, International Protection). Assertion of women’s rights as human rights removes matters of concern to women away from the discourse of needs to that of entitlement, as humans, to the full panoply of human rights.

24  The UN Security Council has also addressed violence against women in conflict. The first UNSC resolution on women, peace and security, Resolution 1325 ([2000] [31 October 2000] SCOR 55th Year 177) calls upon all parties ‘to respect fully international law applicable to the rights and protection of women and girls in armed conflict’ and on State Parties to ensure increased representation of women in decision-making for the prevention, management, and resolution of conflict and on all relevant actors to ensure a gender perspective in negotiating and implementing peace agreements. UNSC Resolution 1820 (19 June 2008) stresses that sexual violence, when used as a war tactic, or as a part of a widespread or systematic attack against civilian populations, ‘can exacerbate armed conflict and impede the restoration of international peace and security’, and demands that all parties to armed conflict immediately cease all acts of sexual violence against civilians and take appropriate measures to protect women and girls from such violence. Subsequent resolutions on women, peace, and security reaffirm these provisions. In addition UNSC Resolution 1888 (30 September 2009) calls upon the UN Secretary-General to appoint a Special Representative to strengthen United Nations co-ordination mechanisms and to engage in advocacy with multiple stakeholders to address sexual violence in armed conflict. UNSC Resolution 1889 (5 October 2009) reiterates the participatory requirements of UNSC Resolution 1325, as well as calling for all parties in armed conflicts to respect fully international law applicable to the rights and protection of women and girls and for measures to end impunity.

25  Despite these developments in international law discrimination, including discriminatory laws, still prevents women and girls from enjoying the full realization of their rights. Recognizing this reality in 2009 the UN Human Rights Council requested the UN High Commissioner for Human Rights (Human Rights, United Nations High Commissioner for [UNHCHR]) ‘to prepare a thematic study on discrimination against women, in law and practice, and on how the issue is addressed throughout the United Nations human rights system’, (UN HR Council Resolution 12/17 [12 October 2009]).

D.  Gender Mainstreaming

26  From their establishment CSW and the CEDAW Committee were serviced by the UN Division for the Advancement of Women rather than the Office of the UN High Commissioner for Human Rights. Other UN bodies with women-specific mandates are the United Nations Development Fund for Women (UNIFEM) and the United Nations International Research and Training Centre for the Advancement of Women (‘INSTRAW’). UNGA Resolution 50/203 of 23 February 1996 recommended the position of a Special Adviser to the UN Secretary-General on Gender Issues and Advancement of Women. In 2006 the Secretary-General’s High Level Panel on UN System-Wide Coherence determined gender equality to be a cross-cutting issue, which is not supported by multiple bodies with gender-specific mandates. The High Level Panel recommended ‘the establishment of one dynamic UN entity focused on gender equality and women’s empowerment’ (Report of the Secretary-General’s High Level Panel on UN System-Wide Coherence in the Areas of Development, Humanitarian Assistance and the Environment ‘Delivering as One’). This proposal was widely endorsed by women’s NGOs and in 2009 the General Assembly adopted Resolution 63/311 (2 October 2009) which provides for the creation of a ‘composite entity taking into account existing mandates’.

27  The Vienna Conference on Human Rights had promoted the mainstreaming of women’s human rights through its assertion that the ‘equal status of women and the human rights of women should be integrated into the mainstream of UN system-wide activity’, including all treaty monitoring bodies (Vienna Declaration Part II paras 37, 42). This policy of gender-mainstreaming requires a gender dimension to be integrated into the design, implementation, monitoring and evaluation of all policies and institutions so that women and men are able to benefit equally and inequality is not perpetuated. It requires gender analysis of all substantive issues, that is investigating the ways in which women experience human rights violations differently from men and taking steps to address those differences.

28  Gender mainstreaming has to some extent been taken up by the UN treaty bodies and some of the special rapporteurs. For example the Human Rights Committee (‘HRC’) has adopted General Comment 28 of 2000 on Equality of Rights between Men and Women which analyses the ICCPR from the perspective of the abuses women suffer. General Comment 28 recognizes that:

Inequality in the enjoyment of rights by women throughout the world is deeply embedded in tradition, history and culture, including religious attitudes. The subordinate role of women in some countries is illustrated by the high incidence of pre-natal sex selection and abortion of female foetuses. State Parties should ensure that traditional, historical, religious or cultural attitudes are not used to justify violations of women’s right to equality before the law and to equal enjoyment of all Covenant rights (General Comment 28 para. 5).

29  General Comment 28 examines the implications for women of each provision of the ICCPR. Thus with respect to Art. 6 ICCPR, ie the right to life (Life, Right to, International Protection):

States parties should provide data on birth rates and on pregnancy- and childbirth-related deaths of women. Gender-disaggregated data should be provided on infant mortality rates. States parties should give information on any measures taken by the State to help women prevent unwanted pregnancies, and to ensure that they do not have to undergo life-threatening clandestine abortions. States parties should also report on measures to protect women from practices that violate their right to life, such as female infanticide, the burning of widows and dowry killings. The Committee also wishes to have information on the particular impact on women of poverty and deprivation that may pose a threat to their lives (General Comment 28 para.10).

30  The Committee on Economic, Social and Cultural Rights (CESCR) has adopted General Comment 16 on the equal right of men and women to the enjoyment of all economic, social, and cultural rights. Indeed if General Comment 28 of the HRC and General Comment 16 of the CESCR had been in effect in 1979 it is possible that the CEDAW would not have been necessary.

31  The UN Commission on Human Rights—since 2006 Human Rights Council—special rapporteurs have also examined women’s situation within the terms of their mandates. For example the special rapporteur on health has examined the causes of maternal mortality and how they are closely related to a failure to realize the right to the highest attainable standard of health (Health, Right to, International Protection). As another aspect of mainstreaming, from January 2008 the CEDAW Committee began to be serviced by the Office of the High Commissioner for Human Rights. Specialized agencies and the International Financial Institutions (Financial Institutions, International) have also developed gender programmes. The UN Security Council also embraces gender mainstreaming with, for example, UNSC Resolution 1889 (5 October 2009) urging ‘Member States to ensure gender mainstreaming in all post-conflict peacebuilding and recovery processes and sectors’.

32  Nevertheless despite these important statements by UN and human rights bodies, gender mainstreaming may be little more than a ‘ticking the box exercise’. Institutionally, practical application too often rests on the willingness and commitment of individuals to give it effect. To be effective gender mainstreaming requires allocation of responsibility, effective monitoring mechanisms, and accountability.

E.  Regional Human Rights Treaties

33  Regional institutions have affirmed the norm of gender equality. Regional human rights treaties include the norm of non-discrimination on the grounds of sex: Art. 14 European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) (‘ECHR’), Arts 1 and 24 American Convention on Human Rights (1969), and Arts 2 and 18 African Charter on Human and Peoples’ Rights (1981). Art. 14 ECHR applies only to non-discrimination in the enjoyment of ECHR rights. It has been supplemented by a general prohibition of discrimination in Protocol No 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms. In 2009 in the case of Opuz v Turkey ([ECtHR] App 33401/02 [Judgment] [9 June 2009]) the European Court of Human Rights (ECtHR) cited the definition of discrimination in Art. 1 CEDAW and used the CEDAW and the Belém do Pará Convention (Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women) to hold for the first time that domestic violence constitutes gender-based discrimination under Art. 14 ECHR.

34  In the Americas, the Belém do Pará Convention of 1994 provides a treaty obligation to condemn all forms of violence against women and to pursue policies to prevent, punish and eradicate such violence. The most recent and forward-looking treaty on women’s human rights is the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa of 2003 (‘AChHPR Women Protocol’). The AChHPR Women Protocol draws upon and goes beyond the CEDAW. For example, it incorporates provisions addressing violence against women, pursuant to Art. 5 AChHPR Women Protocol requires States Parties to prohibit all forms of harmful practices that negatively affect women’s human rights, and under Art. 14 (2) (c) AChHPR Women Protocol allows for medical abortion in certain cases, such as rape, sexual assault and incest.

F.  Conclusion

35  Despite the many international treaties and soft law instruments that prohibit discrimination on the grounds of sex and regardless of the growing sophistication in the interpretation of these instruments by the UN treaty bodies, special procedures and regional human rights institutions, women continue to suffer political, social and economic inequality. ‘It is a disturbing reality that no country has yet managed to eliminate the gender gap’ (World Economic Forum 1). Three main trends can be identified that continue to undermine women’s claims for equality: culture and tradition, religious extremism, and certain adverse effects of economic globalization.

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