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.
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 ICESCR and Article 3 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 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 (see II§1.C). As of March 2009, 185 states are party 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 the 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 Convention, 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. As of March 2009, 96 states have ratified the Optional Protocol (see II§1.C).
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, Article 7 of the Rome Statute of the International Criminal Court (1998) 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.
Various Conventions of relevance to women have been concluded within the framework of the ILO, namely:
ILO 3 (1919) and ILO 103 (revision of ILO 3, 1952) concerning Maternity Protection, providing twelve weeks’ maternity leave during which women shall be entitled to financial benefits and medical care and may not be dismissed;
ILO 45 (1935) concerning Underground Work by Women in Mines;
ILO 89 (1948) (to which a Protocol was added in 1990) concerning Night Work by Women in Industrial Employment;
ILO 100 (1951) concerning Equal Remuneration for Men and Women Workers for Work of Equal Value; seeks to eliminate forms of discrimination based solely on gender;
ILO 102 (1952) concerning Minimum Standards of Social Security; contains regulations for all areas of social security, including maternity benefits;
ILO103 (1952) concerning Maternity Protection; regulates maternity leave and the payments to which women are entitled while on maternity leave;
ILO 111 (1958) concerning Discrimination in Respect of Employment and Occupation; gives a definition of discrimination;
ILO 156 (1981), known as the Workers with Family Responsibilities Convention, on equal opportunities and equal treatment for men and women workers; and,
ILO 183 (2000) Maternity Protection Convention.
The highest level policy-making organ of the ILO, the International Labour Conference, has also adopted several resolutions regarding women, in 1975, 1985, 1991 and the June 2004 Resolution on Gender Equality, Pay Equity and Maternity Protection.
The main Conventions of the Council of Europe in the field of women’s rights are the European Convention on Human Rights and the European Social Charter and respective Protocols. While the ECHR does not explicitly discuss women’s rights, per se, it does, under Article 14, prohibit any ‘distinction’ based, inter alia, on grounds of sex, in relation to the rights protected under the Convention. Furthermore, the principle of equality between spouses with regard to their rights and responsibilities in marriage has been added to the Convention in Protocol No. 7. In addition, Protocol No. 12 sets out a general prohibition on discrimination by any public authority, inter alia, on the grounds of sex, regarding not only rights and freedoms protected by the ECHR, but of any right set forth by law. The ESC sets out a number of specific rights for women, such as equal remuneration, protection of mothers, protection of working women, and the social and economic protection of women and children. The Additional Protocol from 1988 includes the right to equal opportunities and treatment with regard to employment without discrimination based on sex. Furthermore, the revised Charter contains a clause prohibiting discrimination on a variety of grounds, one of which is sex.
Notable in the African context is the Optional Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (2003), which aims, inter alia, to eradicate harmful practices relating to women, such as genital mutilation (Article 5) and lays down the right to equality of men and women in marriage (Article 6), the right of women to decide whether to have children (Article 14), the right to peace (Article 10) and various economic and social rights.
In the Inter-American system various standards are relevant to women’s human rights: the Inter-American Convention on the Nationality of Women (1933); the Inter-American Convention on the Granting of Political Rights to Women (1948); and the Inter-American Convention on the Granting of Civil Rights to Women (1948). Furthermore, the Organisation of American States has adopted the unique Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (Convention of Belém do Pará) that entered into force in 1995 (see II§3.B).
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 II§1.C). 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. The 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 (see II§1.C).
The Committee has contributed significantly to the interpretation of the obligations imposed by the Convention through its General Recommendations. They have dealt with several issues of utmost importance for women, such as violence against women (General Recommendation 12); equal remuneration for work of equal value (General Recommendation 13); female circumcision (General Recommendation 14); AIDS (General Recommendation 15); violence against women (General Recommendation 19); equality in marriage and family relations (General Recommendation 21); women’s political rights (General Recommendation 23), women and health (General Recommendation 24): temporary special measures (General Recommendation 25); and women migrant workers (General Recommendation 26).
Although the CEDAW Committee has the competence to receive individual complaints, to date only five individual cases have been decided. In A.T. v. Hungary, the Committee ruled that state obligations under the Convention extend to the prevention of, and protection from, violence against women and that these remained unfulfilled, constituting a violation of the author’s human rights and fundamental freedoms, particularly her right to security of person. The obligation to prevent violence against women has been the basis of two other, similar, complaints before the Committee, Goekce v. Austria andYildirim v. Austria. Both illustrate the sometimes fatal (always tragic) consequences of domestic violence. The complaint in Goekce v. Austria was brought on behalf of the victim, Sahide Goekce, after she was murdered by her husband. The state’s failure to protect Sahide Goekce constituted violations of Articles 2(a) (the practical realisation of the principle of equality); 2(c) (the legal protection of the rights of women on an equal basis with men / effective protection against any act of discrimination); 2(d) (that public authorities act in conformity with the obligation not to engage in discrimination against women); 2(e) (the elimination of discrimination against women by any person); 2(f) (the failure to adequately modify or abolish laws, regulations, customs and practices which constitute discrimination against women); Article 3 (not taking appropriate measures to ensure the full development and advancement of women for the purpose of guaranteeing the exercise and enjoyment of human rights and fundamental freedoms on an equal basis with men), in conjunction with Article 1 (discrimination against women), as it failed to protect her right to life and physical and mental integrity. The complaint in Yildirim v. Austria was brought on behalf of Fatma Yildirim, after she was fatally stabbed by her husband, despite frequent appeals to police and prosecution agencies for protection. The case was decided on similar reasoning. In Nguyen v. The Netherlands, the Committee found that maintaining different insurance schemes relating to maternity leave benefits for self-employed women and co-working spouses on the one hand, and salaried womenon the other, falls within the state’s margin of discretion. In Szijjarto v. Hungary, the Committee found that a sterilisation performed without the full and informed consent of the author was in violation of Articles 10(h) (information and advice on family planning), 12 (appropriate services in connection with pregnancy, confinement and the post-natal period) and 16(1)(e) (rights to decide freely and responsibly on the number and spacing of children and access to information).
Individual communications regarding sex-discrimination have also been brought to the Human Rights Committee. In the Mauritian Women Case (Aumeeruddy Cziffra and 19 other Mauritian Women v. Mauritius), the Committee found that an immigration law giving a 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 discrimination case brought before the 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 (for further analysis see the right to equality and non-discrimination III§12). On the other hand, a difference in treatment, aimed at combating gender inequality, is not discriminatory if measures are objectively and reasonably justifiable. Guido Jacobs v. Belgium, for instance, concerned the mandatory appointment of women candidates to positions of public office. A number of vacant seats on the Belgian High Council of Justice had been reserved for women applicants. The complainant argued that this undermined his right to equal access to public office (a right specifically protected by Article 25 of the ICCPR) because his suitability was not strictly assessed on the basis of qualifications. The Committee, however, considered the restriction both justifiable and proportionate.
Furthermore, the Convention on the Elimination of All forms of Racial Discrimination (CERD) sets out a communications procedure that has been used to challenge discrimination based on a combination of race and gender, for example, in the case of a foreign worker who was fired because she was pregnant. She sought remedy in domestic courts, which found in favour of the employer who claimed that foreign workers with children tended to take more sick-leave than nationals, as they tended to stop working when they had children. The CERD Committee decided that the state had not protected the right to work under the CERD (Yilmaz-Dogan v. The Netherlands). The CERD Committee has specifically dealt with the issue of gender-related dimensions of racial discrimination in its General Recommendation 25.
In 2005 the Committee on Economic, Social and Cultural Rights released General Comment 16 on the equal right of men and women to the enjoyment of all economic, social and cultural rights. The Comment succinctly summarises a state’s legal obligations under Article 3 ICESCR via three headings. 1) The obligation to respect. States must refrain from any discriminatory practice capable of hampering the equal enjoyment of rights under the ICESCR. 2) The obligation to protect. States must eliminate (customary) perceptions about the supposed inferiority or superiority of men and women, and protect individuals from any discrimination perpetrated by non-state agents and institutions. 3) The obligation to fulfil. States are required to enact legislation, policies, monitoring mechanisms, education and training that directly (and practically) ensure the equal enjoyment of economic, social and cultural rights.
In the Inter-American system, two important decisions of the Inter-American Commission are worth mention: Maria da Penha v. Brazil (Case 12.051) and Ana, Beatriz and Celia Gonzalez Perez (Case 11.565) v. Mexico. In the case against Brazil, the Inter- American Convention on the Prevention, Punishment and Eradication of Violence against Women was applied for the first time and the Commission established the responsibility of a state for its negligence and lack of effectiveness in prosecuting and condemning the aggressor of the victim (her ex-husband), as well as for the failure to fulfil the state duty to prevent harm. In the second case, the Commission established Mexico’s responsibility for the illegal detention, rape, and torture of the Perez sisters and the subsequent failure to investigate and provide compensation for these acts. It is worth noting that the Commission clearly stated that rape may amount to torture and is a violation of the private life of women. In this particular case, the seriousness of the conduct was aggravated by the significance that being a victim of such a crime carries in the indigenous community of which the victims were members.
The Inter-American Court delivered its first major judgment on women’s rights in theMiguel Castro-Castro Prison case. The Court explicitly used the Convention of Belém do Pará to aid in the interpretation of the ACHR. The case centred on a series of prisoner abuses in Lima, Peru. State agents blew up a wall of a women’s prison ward and used various weapons (including explosives, tear-gas and other ‘war-weapons’) to kill and severely injure a number of male and female prisoners. Six female prisoners were transported to hospital and forced to strip and remain naked for long periods of time. A member of this group was subjected to digital rape on the pretext of an ‘inspection’. Other female inmates were transferred to different prisons where they were routinely mistreated and forced to forgo personal hygiene products. Pregnant women received inadequate care. All transferred prisoners were kept in solitary confinement and were unable to communicate with their relatives. The Court concluded that all these incidents amounted to violations of Article 5 ACHR - the right to humane treatment. The Court also found violations of Articles 8 (fair trial) and 25 (due process) for the state’s failure to investigate the abuses. The Court observed that the inhumane treatment of pregnant women was particularly egregious - the violent attack in the prison not only violated their own physical integrity, but generated ‘anguish, despair and fear for the lives of their children’. The forced nudity of six female inmates was also of special concern. The ordeal of standing naked in front of armed guards caused more ‘moral and psychological’ damage to female inmates compared to what was experienced by their male counterparts.
In addition, mention should be made of the UN Commission on the Status of Women (see II§1.B), 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.
Every year, the UN Human Rights Council deals with issues related to the protection of women under several agenda items, for instance, the traffic in women and girls, the elimination of violence against women and the integration of the rights of women in the UN system. In addition, the Special Rapporteur on Violence against Women, its Causes and Consequences and the Special Rapporteur on Trafficking in Persons, Especially in Women and Children report to the Council.
Furthermore, complaints regarding infringements of the rights of women can clearly be brought to the general supervisory mechanisms of the ILO and under the mechanisms of the ECHR and the ESC. The European Court has dealt with many cases concerning gender discrimination. In Abdulaziz, Cabales and Balkandali v. The United Kingdom, the court stated that advancement in the equality of the sexes was a major goal in the CoE and, therefore, ‘very weighty reasons’ would have to be given before a difference of treatment on the grounds of sex could be regarded as compatible with the ECHR. This has been reiterated in later judgements, for example, Schuler-Zgraggen v. Switzerland, where the Court found depriving a woman of her invalidity pension on the assumption that, because she was the mother of a young child, she could not have worked outside the home, was discriminatory and not justified by weighty enough reasons; and Unal Tekeli v. Turkey where a law imposing the automatic loss of a women’s surname upon her marriage (for her husband’s) could not be justified on the basis of ‘family unity’. The Court is likewise concerned about violence against women. In cases such as Osman v. The United Kingdom and Bevaqua and S v. Bulgaria the Court has held that states must prevent and investigate incidents of violence. In Bevaqua and S, the Court further observed that, in situations where children are exposed to violence, interim custody proceedings must be given ‘priority examination’ by domestic courts.
The European Committee of Social Rights has made numerous decisions on: Article 4, fair remuneration; Article 8, maternity rights in the workplace; and Article 20, equal opportunities and treatment in matters of employment and occupation. Furthermore, the European Court of Justice has been prolific in defining the scope of European equality law.
The UN Decade for Women (1976-1985) has had an impact on the development of the equal opportunities policy of the UN. During the World Conference on Women in Nairobi in 1985, a set of Forward-Looking Strategies was drawn up, to be seen as a kind of international action programme for the advancement of the position of women until the year 2000, setting out guidelines for world-wide long-term action. The Forward-Looking Strategies reflect the obstacles that women face in achieving equality, development and peace. The programme is not binding, but rather a general recommendation. The unanimous approval it met, however, has given it considerable moral force.
At the Fourth World Conference on Women (Beijing, 1995), a Platform for Action and the Beijing Declaration were adopted. This document contains objectives in a range of areas, and proposes institutional and financial arrangements. During a special session of the UNGA in 2000, the Platform for Action was evaluated and appraisal of progress made in its implementation was undertaken by the twenty-third special session of the UNGA (Beijing +5) entitled ‘Women 2000: gender equality, development and peace for the twenty-first century’. The Assembly adopted a ‘Political Declaration and Further Actions and Initiatives to Implement the Beijing Declaration and Platform for Action’ (the Outcome Document). A ten-year review of the Beijing Conference was held in March 2005 where member states agreed to a speedier implementation of the Beijing Declaration. The CSW’s current and future work, as determined by its multi-year programme for 2007-2009, is closely related to the Platform for Action and the Outcome Document. The priority theme for the year 2008 was financing for gender equality and the empowerment of women and for 2009 it is the equal sharing of responsibilities between women and men, including care giving in the context of HIV/AIDS.
The ILO actively fights discrimination against women. The organisation aims to mainstream gender concerns in all its policies and programmes. Specific ILO activities related to the Beijing Conference aim at, for instance: creating productive employment for women and eradication of poverty; improving the working conditions and social protection of women; strengthening organisations and institutions that represent and support women; and promoting the more widespread application and ratification of international labour standards that are of particular relevance to women. Activities of the ILO include various studies and seminars, and the Bureau for Gender Equality. At its 265th session in 1996, the Governing Body of the ILO approved the establishment of an International Programme on More and Better Jobs for Women. This programme promotes more jobs for women through employment creation, training, entrepreneurship development, improvement in access to the labour market, and equality of opportunity. It promotes better jobs through equal pay, occupational desegregation, health and safety, improved working conditions for non-standard employment, social security, family-friendly workplaces and protection for vulnerable workers. The ILO has also established the Capacity-building Programme on Gender, Poverty and Employment focusing on enhancing women’s access to quality jobs, strengthening their bargaining and negotiating power, and providing innovative ways of increasing social protection, especially in the informal sector.
Finally, it should be noted that both within the UN system and in regional organisations, NGOs play a crucial role in the promotion of women’s rights and the undertaking of research and the documentation of violations. An NGO that deserves special mention in connection with the CEDAW Committee is the International Women’s Rights ActionWatch (IWRAW-Asia Pacific), set up in 1986 as a watchdog to support the work of the CEDAW. The IWRAW-Asia Pacific is active in education and country-analysis.
Other examples of NGO activities are the Women’s Environment and Development Organisation’s (WEDO) report, which deals with the national implementation of the Beijing Platform, the Coalition against Trafficking in Women (CATW) and the Wave Network - Women Against Violence Europe.
C. Issues of special concern
There are several issues that call for special concern when dealing with women’s rights, for instance: a) trafficking in women and girls; b) violence against women; c) reproductive rights; and d) traditional practices.
1. TRAFFICKING IN WOMEN AND GIRLS
Every year, thousands of women and girls from poor countries are lured, abducted, or sold into forced prostitution and other forms of servitude, mostly in the West. Trafficking is a complex transnational issue that needs to be addressed on many levels. It has its roots in gender inequality and socio-economic factors where migration, criminal activity and law enforcement come into play.
In 2002, the OHCHR issued the ‘Recommended Principles and Guidelines on Human Rights and Human Trafficking’ and, in 2003, the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the Convention against Transnational Organised Crime (2000), entered into force. In ratifying the Protocol, states commit to criminalise trafficking, to provide assistance to and protection of victims and to provide reparations to them. In addition, Article 9 sets out measures for the prevention of trafficking. In December 2008, the UNGA adopted two resolutions aimed at strengthening the international efforts to prevent trafficking and to protect the victims of trafficking, especially women and girls: Resolution 63/156 entitled ‘Trafficking in women and girls’ and 63/194 entitled ‘Improving the coordination of efforts against trafficking in persons’. The UNGA called upon governments to, inter alia, discourage the demand that fosters the trafficking of women and girls for all forms of exploitation, and to enhance preventive measures, including legislative measures, to deter exploiters of trafficked persons, as well as ensure their accountability. The UNGA also called upon governments to:
[T]ake appropriate measures to address the factors that increase vulnerability to being trafficked, including poverty and gender inequality, as well as other factors that encourage the particular problem of trafficking in women and girls for prostitution and other forms of commercialized sex, forced marriage and forced labour, in order to prevent and eliminate such trafficking, including by strengthening existing legislation with a view to providing better protection of the rights of women and girls and to punishing perpetrators, through both criminal and civil measures. (UNGA Resolution 63/156).
The Council of Europe pays particular attention to trafficking in women. On 1 February 2008, the Convention on Action against Trafficking in Human Beings entered into force. It is the first anti-trafficking instrument to blend both criminalisation and a human rights framework. It has been particularly praised for its attention to the rights and needs of victims. Under the Convention victims are to be given all due assistance, including access to emergency medical care, education for children and translation and counselling services. Once someone is deemed a victim, a 30-day ‘recovery and reflection period’ is triggered. This is envisioned as a way for victims to escape the power and influence of their traffickers. The Convention is innovative in adopting a generalised approach to trafficking. The principle of non-discrimination applies in aiding victims. Trafficking occurs whether or not it is transnational or national in character, and regardless of whether it is affiliated with organised crime. The supposed consent of a trafficked person is also irrelevant. Finally, the Convention establishes a monitoring mechanism to evaluate implementation. Although many states have identified trafficking in human beings as a horrendous form of maltreatment, more concrete steps need to be taken to end the practice and ensure that women and girls are protected, that traffickers are prosecuted and that victims are provided with effective redress.
2. VIOLENCE AGAINST WOMEN
Everyday, millions of women around the world face abuse violating the right to life, safety, dignity and physical and psychological wellbeing. Physical and mental violence is endured in the home and outside and even inflicted by the public authorities or by coercive institutions. The least visible form of abuse, domestic violence, remains the most widespread and results in the deaths of thousands of women every year. Those belonging to minority groups, indigenous women, refugee women, migrant women, women living in rural or remote communities, destitute women, women in institutions or in detention, female children, women with disabilities, elderly women and women in situations of armed conflict are especially vulnerable.
In the Preamble to the Declaration on the Elimination of Violence against Women (1993), the General Assembly recognises that:
[V]iolence 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 [?] and that violence against women is one of the crucial social mechanisms by which women are forced into a subordinate position compared with men. (UNGA Resolution 48/104).
In October 2006, the UN Secretary-General launched an in-depth study on violence against women (A/61/122/Add.1) followed in December 2006 by the UNGA adopting a resolution calling for an intensification of efforts to eliminate all forms of violence against women. In February 2008, UN Secretary-General Ban Ki-moon launched his campaign ‘UNite to End Violence against Women’ – a multi-year effort aimed at preventing and eliminating violence against women and girls in all parts of the world.
In its Resolution 63/155, on ‘Intensification of efforts to eliminate all forms of violence against women”, the UNGA, inter alia, called upon member states to:
[E]nd impunity for violence against women by investigating, prosecuting with due process and punishing all perpetrators, by ensuring that women have equal protection of the law and equal access to justice and by holding up to public scrutiny and eliminating those attitudes that foster, justify or tolerate all forms of violence against women and girls.
The Resolution sets out a number of measures in the fields of legislation, prevention, law enforcement, victim assistance and rehabilitation. Furthermore, in March 2009 the UN Secretary-General launched the coordinated Database on Violence Against Women, containing materials on the extent, nature and consequences of all forms of violence against women (the Database is hosted at: webapps01.un.org/vawdatabase/home.action).
In 1994, the UN Human Rights Commission established the mandate of the Special Rapporteur on Violence against Women. The Rapporteur, whose mandate was extended by the Human Rights Council, is to seek and receive information on violence against women, its causes and its consequences from relevant actors such as international organisations, states and women’s organisations, and to respond effectively to such information, recommending measures ways and means, at the national, regional and international levels, to eliminate violence against women and its causes, and to remedy its consequences (E/CN.4/RES/ 1994/45). The current Rapporteur Ms. Yakin Ertürk, has drawn attention to the ‘universality of violence against women, the multiplicity of its forms and the intersectionality of diverse kinds of discrimination against women and its linkage to a system of domination that is based on subordination and inequality.’ The Rapporteur also discusses, inter alia, the human rights problems associated with HIV/AIDS and their interplay with violence against women (E/CN.4/2004/66). The Rapporteur has also been concerned with trafficking in women and girls and female genital mutilation.
At the universal level, violence against women is a cross-cutting theme that all treaty bodies have dealt with from different perspectives. In this regard, it is worth noting CEDAW Committee General Recommendation 19 on violence against women, which states 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’. According to the Committee,
The definition of discrimination includes gender based violence, that is, violence that is directed against a woman because she is a woman or that affects women disproportionately. It includes acts that inflict physical, mental or sexual harm or suffering, threats of such acts, coercion and other deprivations of liberty. Gender based violence may breach specific provisions of [CEDAW], regardless of whether those provisions expressly mention violence.
As mentioned above, the CEDAW Committee has dealt with individual complaints regarding violence against women: A.T. v. Hungary, Goecke v. Austria and Yildirim v. Austria. These cases represent a significant contribution to customary international law which, according to the Special Rapporteur on Violence Against Women, ‘obliges states to prevent and respond to acts of violence against women with due diligence’.
The UN Security Council has specifically addressed violence against women in armed conflict. Resolution 1325 (2000) calls for the immediate and universal observance of international humanitarian and human rights law for the protection of female civilians. States are further called upon to adopt ‘special measures to protect women and girls from gender-based violence, particularly rape and other forms of sexual abuse’. The resolution recognises the important role women play in building peace and security, and urges member states to employ women in a greater capacity in all aspects of peace and security operations. This acclaimed resolution led to an inter-UN-agency awareness campaign called ‘United Nations Action against Sexual Violence in Conflict’. A strongly worded resolution was passed by the Security Council in June 2008 - Resolution 1820. It ‘demands’ that parties engaged in armed conflict immediately cease acts of sexual violence and take preventative measures. Measures include instituting greater military discipline (driven by ‘command responsibility’), the ‘debunking of myths that fuel sexual violence’ and the evacuation of women and girls from areas where they at risk of sexual violence. The resolution further enunciates the heinous nature of wartime sexual violence and stresses the need for justice when peace is restored. International criminal tribunals have in recent years increasingly addressed violence against women, following the groundbreaking standards established by the International Criminal Tribunal for the Former Yugoslavia. In November 2008 the renowned feminist scholar and lawyer Professor Catharine A. MacKinnon was appointed (pursuant to Article 42(9) of the Rome Statute) as a strategic advisor on sexual and gender violence to the Prosecutor’s Office of the International Criminal Court, highlighting the Court’s emphasis on investigating and bringing to justice perpetrators of widespread and systematic sexual violence.
In the regional systems, the Organisation of American States has uniquely adopted a specific instrument dealing with violence against women, the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (Convention of Belém do Pará). The Convention sets out a number of obligations for states, ranging from negative obligations, to refrain, for example, from engaging in acts of violence, to positive actions, such as undertaking to modify social and cultural patterns of conduct of men and women (Articles 7 and 8) (see II§3.B).
In Africa, Article 3(4) Optional Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (2003) stipulates that ‘States Parties shall adopt and implement appropriate measures to ensure the protection of every woman’s right to respect for her dignity and protection of women from all forms of violence, particularly sexual and verbal violence.’ The Protocol also sets out the right to life (Article 4) and the elimination of harmful practices (Article 5) (see II§4.B).
The Council of Europe has adopted a series of recommendations on women and violence. On 30 April 2008 the Parliamentary Assembly involved in a wider CoE campaign to stop domestic violence against women issued the Vienna Declaration, calling on the CoE to draft a framework convention ‘to combat violence against women, including domestic violence.’ The Parliamentary Assembly has also passed Resolutions 1582 (2007) and 1635 (2008), and Recommendation 1847 (2008) to identify measures capable of stopping violence against women and the ways in which these measures can be incorporated into a convention.
3. REPRODUCTIVE RIGHTS
Woman’s biological role as bearer of children has traditionally led to inequality between men and women. Women are in many cultures considered the property of their husbands or male relatives and their role in society is principally as childbearing instruments. Traditional inequalities entail that these women have limited control over their reproductive functions; they often have limited access to health services and innumerous countries women are not allowed access to family planning services.
Under international human rights law, women’s reproductive rights are a composite of a number of separate human rights:
The right to equal treatment;
The right to privacy;
The right to reproductive health and family planning;
The right to decide the number and spacing of children;
The right to marry and to found a family;
The right to life, liberty, and security;
The right to freedom from sexual exploitation and assault;
The right to freedom from torture and ill-treatment.
CEDAW stipulates that states have a duty to ensure the right to family planning, information, counselling and services. This was illustrated by the Committee in Szijjarto v. Hungary (see above). The Programme of Action adopted by states at the International Conference on Population and Development (ICPD) (1994) establishes that:
[Reproductive] rights rest on the recognition of the basic right of all couples and individuals to decide freely and responsibly the number, spacing and timing of their children and to have the information and means to do so, and the right to attain the highest standard of sexual and reproductive health. It also includes their right to make decisions concerning reproduction free of discrimination, coercion and violence, as expressed in human rights documents.
In a regional context, the extensive Protocol on the Rights of Women in Africa (2003) (discussed above), entered into force 25 November 2005 and requires states to ‘ensure that the right to health of women, including sexual and reproductive health, is respected and promoted’ (Article 14). The rights specified include the right to: control one’s fertility; determine the number and spacing of one’s children; choose any method of contraception; protect oneself and be protected against sexually transmissible infections, including HIV/AIDS; be informed about one’s health status and the health status of one’s partner; and have access to family planning education. As to obligations of the states parties, the Protocol stipulates that they are to take all measures to: provide adequate, affordable and accessible health services; establish
and strengthen prenatal, delivery and postnatal health, and nutritional services for women during pregnancy and while breast-feeding; and protect women’s reproductive rights by authorising abortion in cases of sexual assault, rape, incest, and foetal impairment and where the continued pregnancy endangers the mental and physical health or life of a woman.
At the centre of reproductive rights is the principle that a woman has the right to decide whether and when she wants to have children. While recent years have seen developments towards increased legalisation of abortion, the right to choose remains non-existent or under threat in many parts of the world. This has been acknowledged by the Parliamentary Assembly of the CoE (in the European context) by Resolution 1607 (2008).
In most of the Council of Europe member states the law permits abortion in order to save the expectant mother’s life. Abortion is permitted in the majority of European countries for a number of reasons, mainly to preserve the mother’s physical and mental health, but also in cases of rape or incest, of foetal impairment or for economic and social reasons and, in some countries, on request. The Assembly is nonetheless concerned that, in many of these states, numerous conditions are imposed and restrict the effective access to safe, affordable, acceptable and appropriate abortion services. These restrictions have discriminatory effects, since women who are well informed and possess adequate financial means can often obtain legal and safe abortions more easily.
According to a prominent NGO, the Centre for Reproductive Rights, currently 26% of the world’s population live in countries where abortion is prohibited or permitted only in cases where the pregnancy endangers the woman’s life. Several countries stress the right to life of the foetus; in this context, Article 4 ACHR is notable as it protects the right to life ‘in general, from the moment of conception’. To protect women’s right to choose when to have children, states have a duty to ensure access to contraceptives and reproductive health services to prevent unwanted or untimely pregnancies. This right also implies that governments have to ensure that women are informed and give their consent before contraceptive measures are taken. Furthermore, in drafting instruments relating to reproductive rights, governments have a duty to remove barriers to safe abortion and make women’s reproductive autonomy, health and right to equality a primary concern.
4. TRADITIONAL PRACTICES
Many societies adhere to traditional cultural practices that violate women’s rights, perpetuating gender discrimination and the subordination of women. These practices include female genital mutilation (FGM); early marriage; various taboos or practices which prevent women from controlling their own fertility; forced feeding of women; traditional birth practices; son preference and female infanticide; early pregnancy; dowry price; and honour killings. These practices persist ‘because they are not questioned and take on an aura of morality in the eyes of those practising them’ (OHCHR, Fact Sheet No. 23, Harmful Traditional Practices Affecting the Health of Women and Children).
A particularly dreadful traditional practice that will be discussed here is female genital mutilation (FGM). FGM is a harmful traditional practice that involves cutting off or otherwise damaging the female genitals. It is mostly carried out on young girls, generally between infancy and 15 years of age. The process may entail excision of the prepuce, clitoris, and/or labia minora; stitching or narrowing of the vaginal opening; and/or other procedures. The procedure has its roots in custom in some African countries, as well as some Middle-Eastern states and many diasporas from these regions practice FGM.
The WHO estimates that 100 to 140 million women and girls have suffered some form of mutilation and another three million run the risk of being subjected to it annually - in Africa alone (OHCHR, Fact Sheet No. 21, May 2008). There is extensive documentation of the health hazards caused by FGM, including severe pain, anaemia, shock, haemorrhage, infections, urine retention, stones in the bladder or urethra, scarring, cysts, development of fistulae or holes between the vagina and the bladder, urinary incontinence, infertility, difficulty in childbirth, and even death. Sexual and psychological difficulties are also common consequences of the procedure. Although countless women and girls have been maimed or even died as a result of the practice and several countries in Africa, as well as in the West, have criminalised the practice, FMG is firmly rooted in tradition in many societies and efforts to curtail it have had limited effect.
Reasons for the persistence of FGM are complex. In many communities, it is seen as a rite of passage from girlhood to adulthood, it is a means to reduce women’s sexual desire and increase male sexual pleasure, it is supposed to guard virginity until marriage and maintain fidelity on the part of the woman during marriage; in some communities women that have not undergone the procedure are not eligible for marriage. In certain regions, FMG is associated with Islam, though it is also practised by Jews, Christians, and other religious groups. Although many traditional justifications have been put forth, FMG’s underpinnings seem to be the long-established subordination of women and the taboo of their sexuality.
In recent years, increased awareness of FGM as a violation of women’s right to physical integrity has lead several international bodies to take up the issue. In 1998, the UN Commission on Human Rights established the post of Special Rapporteur on Traditional Practices Affecting the Health of Women and the Girl Child, assumed by the Human Rights Council. In addition, the Special Rapporteur on Violence Against Women, its Causes and Consequences has discussed FGM in reports to the Human Rights Council.
A special international initiative to eradicate FGM took place in 2003, when more than a hundred experts representing governments of 28 African and Arab countries, national-level NGOs and international organisations gathered in Cairo for the Expert Consultation on Legal Tools to Prevent Female Genital Mutilation. The meeting concluded with the Cairo Declaration for the Elimination of FGM, affirming, inter alia, that ‘the prevention and the abandonment of FGM can be achieved only through a comprehensive approach promoting behaviour change, and using legislative measures as a pivotal tool. The Declaration was reaffirmed by the Cairo Declaration + Five in 2008. The participants of this high level meeting committed themselves to a redoubling of efforts. The importance of the media and general public awareness in combating FGM were also discussed and recognised.
The CEDAW Committee has examined the issue of FGM in numerous state reports and has specifically dealt with the issue in its General Recommendation 19 on violence against women and General Recommendation 24 on women and health. Similarly, the Committee on Economic, Social and Cultural Rights often discusses harmful traditional practices when examining state reports and has addressed the issue of FGM in General Comment 14, stating that it is a violation of the right to health.
In the continent most affected by FGM, the African Union has adopted the Optional Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (see II§4.B). The Protocol provides in Article 5 that states parties to the Charter must undertake ‘prohibition, through legislative measures backed by sanctions, of all forms of female genital mutilation, scarification, medicalisation and para-medicalisation of female genital mutilation and all other practices in order to eradicate them’.
To eliminate female genital mutilation, education, outreach and quality reproductive health care for women is imperative and women’s rights to physical integrity, equality and to health need to be respected and promoted.