Discrimination of women in law and practice

un-cedaw_0Elimination of discrimination against women (A/HRC/29/L7/Rev.1)

Every year the Human Rights Council spends a day discussing the elimination of discrimination against women, informed by the latest report of the Working Group on the issue of discrimination against women in law and practice.

This Working Group is a sequel to Beijing’s Platform for Action. In Beijing, Governments decided to abolish discriminatory laws. The five and ten year reviews made this decision even firmer.  On the occasion of the tenth year review, the Commission on the Status of Women wondered if it would not be appropriate to establish a special rapporteur to report on discriminatory laws and their consequences. The Secretary-General had produced two reports, in 2006 and 2007 on the issue; in 2009 the Human Rights Council requested the High Commissioner to present a report on discrimination in law and practice, and in 2010 the Human Rights Council adopted a resolution with the mandate of the Working Group.

It is the second special procedure of the Human Rights Council dedicated to addressing women’s human rights, complementing the mandate of the Special Rapporteur on Violence Against Women, its causes and consequences,which was established in 1994 immediately following the World Conference on Human Rights.  In Vienna in 1993 it had been decided to integrate women’s human rights into the overall human rights system.

The first report of the Working Group was about its history and plans for the future. Its second report in 2013 was dedicated to discrimination in law and practice in public and political life. In 2014 the subject was eliminating discrimination in economic and social life with a focus on economic crisis, and this year eliminating discrimination in cultural and family life with a focus on the family as a cultural space.(A/HRC/29/40)

This 2015 report is a radical accusation against patriarchy. It says that Article 5 (eliminate prejudice) of CEDAW is of vital importance. Human Rights Council resolutions – 16/3 on promoting human rights and fundamental freedoms through a better understanding of traditional values of humankind and 26/11 on the protection of the family – threaten to undermine international achievements in the field of human rights in the name of cultural and religious diversity.

It relies heavily on the definition of gender in General Recommendation 28 of the CEDAW Committee.

  1. The construction of gender is deeply embedded in culture. In its general recommendation No. 28, the Committee on the Elimination of Discrimination against Women indicates that “the term ‘gender’ refers to socially constructed identities, attributes and roles for women and men and society’s social and cultural meaning for these biological differences resulting in hierarchical relationships between women and men and in the distribution of power and rights favouring men and disadvantaging women. This social positioning of women and men is affected by political, economic, cultural, social, religious, ideological and environmental factors and can be changed by culture, society and community.”[1]

Gender is a discriminatory factor in all societies. Culture however can be changed.

The recommendations the Working Group makes are all furthering equality, especially within the family.

The resolution (A/HRC/29?L.7?Rev.1) the Human Rights Council adopted is a weak ‘infusion’ of the working group’s analysis.

However it

  1. Calls upon States to ensure women’s equal enjoyment of all human rights by, inter alia:

(a)           Adopting and strengthening national legal frameworks promoting and guaranteeing gender equality in cultural and family life, in accordance with their international obligations and commitments;

(b)           Promoting the equal and full access, participation and contribution of women and girls in all aspects of life, including in cultural and family life;

(c)           Rejecting any discriminatory practice and gender stereotype;

(d)           Adopting or strengthening measures to combat multiple and intersecting forms of discrimination, in particular against those belonging to vulnerable groups;

  1. Also calls upon States to promote a culture free from all forms of discrimination against women and girls and to address its root causes by, inter alia:

(a)           Developing national mechanisms, measures and policies, as appropriate;

(b)           Adopting awareness-raising campaigns, educational and informational programmes;

(c)           Promoting the mobilization and engagement of civil society organizations and other relevant stakeholders, including that of men and boys;

(d)           Providing gender-equality training for State civil servants, including those working on the judiciary;

(e)           Adopting a coherent set of gender-responsive social and economic policies;

(f)            Addressing poverty and social exclusion in order to overcome the structural barriers and inequality that they face;

  1. Urges States to take all appropriate measures to modify the social and cultural patterns of conduct of men and women with a view to achieving the elimination of prejudices and customary and all other practices that are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women;
  2. Calls upon States to take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations, and to guarantee women’s equality in law and in practice in family life, in accordance with their respective international obligations and commitments by, inter alia:

(a)           Recognizing the equality of all family members before the law;

(b)           Opposing all forms of marriage that constitute a violation of women’s and girls’ rights, well-being and dignity;

(c)           Ensuring that men and women have the same right freely to choose a spouse, to enter into marriage only with their free and full consent and the same rights and responsibilities during marriage and at its dissolution;

(d)           Ensuring the same rights for both spouses in respect of the ownership, acquisition, management, administration, enjoyment and disposition of property;

(e)           Ensuring the same rights and responsibilities with regard to guardianship, wardship, trusteeship and the adoption of children, or similar institutions where these concepts exist in national legislation; in all the cases, the interest of the children shall be paramount.

Further the resolution calls for combating violence, an end to impunity, and access to justice for all women regardless of their status.

I started out noticing that there was so much language about the family in this resolution. Then I understood that this was because the Working Group’s report focused on it. Then I read the report and was impressed with the thorough analysis and description of legal systems regarding personal law.