|
General recommendation No. 25, on article 4, paragraph 1, of
the Convention on the Elimination of All Forms of Discrimination
against Women
Temporary
special measures
I. Introduction
1. The Committee
on the Elimination of Discrimination against Women decided at its
twentieth session (1999), pursuant to article 21 of the Convention,
to elaborate a general recommendation on article 4, paragraph 1,
of the Convention on the Elimination of All Forms of Discrimination
against Women. This new general recommendation would build, inter
alia, on earlier general recommendations, including general recommendation
No. 5 (seventh session, 1988), on temporary special measures, No.
8 (seventh session, 1988), on implementation of article 8 of the
Convention, and No. 23 (sixteenth session, 1997), on women in public
life, as well as on reports of States parties to the Convention
and on the Committee's concluding comments to those reports.
2. With the
present general recommendation, the Committee aims to clarify the
nature and meaning of article 4, paragraph 1, in order to facilitate
and ensure its full utilization by States parties in the implementation
of the Convention. The Committee encourages States parties to translate
this general recommendation into national and local languages and
to disseminate it widely to the legislative, executive and judicial
branches of government, including their administrative structures,
as well as civil society, including the media, academia, and human
rights and women's associations and institutions.
II. Background: the object and purpose of the Convention
3. The Convention
is a dynamic instrument. Since the adoption of the Convention in
1979, the Committee, as well as other actors at the national and
international levels, have contributed through progressive thinking
to the clarification and understanding of the substantive content
of the Convention's articles and the specific nature of discrimination
against women and the instruments for combating such discrimination.
4. The scope
and meaning of article 4, paragraph 1, must be determined in the
context of the overall object and purpose of the Convention, which
is to eliminate all forms of discrimination against women with a
view to achieving women's de jure and de facto equality with men
in the enjoyment of their human rights and fundamental freedoms.
States parties to the Convention are under a legal obligation to
respect, protect, promote and fulfil this right to non -discrimination
for women and to ensure the development and advancement of women
in order to improve their position to one of de jure as well as
de facto equality with men.
5. The Convention
goes beyond the concept of discrimination used in many national
and international legal standards and norms. While such standards
and norms prohibit discrimination on the ground of sex and protect
both men and women from treatment based on arbitrary, unfair and/or
unjustifiable distinctions, the Convention focuses on discrimination
against women, emphasizing that women have suffered, and continue
to suffer from various forms of discrimination because they are
women.
6. A joint reading
of articles 1 to 5 and 24, which form the general interpretative
framework for all of the Convention's substantive articles, indicates
that three obligations are central to States parties' efforts to
eliminate discrimination against women. These obligations should
be implemented in an integrated fashion and extend beyond a purely
formal legal obligation of equal treatment of women with men.
7. Firstly,
States parties' obligation is to ensure that there is no direct
or indirect1 discrimination against women in their laws and that
women are protected against discrimination - committed by public
authorities, the judiciary, organizations, enterprises or private
individuals - in the public as well as the private spheres by competent
tribunals as well as sanctions and other remedies. Secondly, States
parties' obligation is to improve the de facto position of women
through concrete and effective policies and programmes. Thirdly,
States parties' obligation is to address prevailing gender relations2
and the persistence of gender-based stereotypes that affect women
not only through individual acts by individuals but also in law,
and legal and societal structures and institutions.
8. In the Committee's
view, a purely formal legal or programmatic approach is not sufficient
to achieve women's de facto equality with men, which the Committee
interprets as substantive equality. In addition, the Convention
requires that women be given an equal start and that they be empowered
by an enabling environment to achieve equality of results. It is
not enough to guarantee women treatment that is identical to that
of men. Rather, biological as well as socially and culturally constructed
differences between women and men must be taken into account. Under
certain circumstances, non -identical treatment of women and men
will be required in order to address such differences. Pursuit of
the goal of substantive equality also calls for an effective strategy
aimed at overcoming under-representation of women and a redistribution
of resources and power between men and women.
9. Equality
of results is the logical corollary of de facto or substantive equality.
These results may be quantitative and/or qualitative in nature,
that is, women enjoying their rights in various fields in fairly
equal numbers with men, enjoying the same income levels, equality
in decision-making and political influence, and women enjoying freedom
from violence.
10. The position
of women will not be improved as long as the underlying causes of
discrimination against women, and of their inequality, are not effectively
addressed. The lives of women and men must be considered in a contextual
way, and measures adopted towards a real transformation of opportunities,
institutions and systems so that they are no longer grounded in
historically determined male paradigms of power and life patterns.
11. Women's
biologically determined permanent needs and experiences should be
distinguished from other needs that may be the result of past and
present discrimination against women by individual actors, the dominant
gender ideology, or by manifestations of such discrimination in
social and cultural structures and institutions. As steps are being
taken to eliminate discrimination against women, women's needs may
change or disappear, or become the needs of both women and men.
Thus, continuous monitoring of laws, programmes and practices directed
at the achievement of women's de facto or substantive equality is
needed so as to avoid a perpetuation of non -identical treatment
that may no longer be warranted.
12. Certain
groups of women, in addition to suffering from discrimination directed
against them as women, may also suffer from multiple discrimination
based on additional grounds such as race, ethnic or religious identity,
disability, age, class, caste or other factors. Such multiple discrimination
may affect these groups of women primarily, or to a different degree
or in different ways than men. States parties may need to take specific
temporary special measures to eliminate such multiple discrimination
against women and its compounded negative impact on them.
13. In addition
to the Convention on the Elimination of All Forms of Discrimination
against Women, other international human rights instruments and
policy documents adopted in the United Nations system contain provisions
on temporary special measures to support the achievement of equality.
Such measures are described in different terminology, and the meaning
and interpretation given to such measures also differs. It is the
Committee's hope that the present general recommendation on article
4, paragraph 1, will contribute to a clarification of terminology3.
14. The Convention
targets discriminatory dimensions of past and current societal and
cultural contexts which impede women's enjoyment of their human
rights and fundamental freedoms. It aims at the elimination of all
forms of discrimination against women, including the elimination
of the causes and consequences of their de facto or substantive
inequality. Therefore, the application of temporary special measures
in accordance with the Convention is one of the means to realize
de facto or substantive equality for women, rather than an exception
to the norms of nondiscrimination and equality.
III. The meaning
and scope of temporary special measures in the Convention on the
Elimination of All Forms of Discrimination against Women
Article 4, paragraph
1
Adoption by
States Parties of temporary special measures aimed at accelerating
de facto equality between men and women shall not be considered
discrimination as defined in the present Convention, but shall in
no way entail as a consequence the maintenance of unequal or separate
standards; these measures shall be discontinued when the objectives
of equality of opportunity and treatment have been achieved.
Article 4, paragraph
2
Adoption by
States parties of special measures, including those measures contained
in the present Convention, aimed at protecting maternity shall not
be considered discriminatory.
A. Relationship
between paragraphs 1 and 2 of article
15. There is a clear difference between the purpose of the "special
measures" under article 4, paragraph 1, and those of paragraph
2. The purpose of article 4, paragraph 1, is to accelerate the improvement
of the position of women to achieve their de facto or substantive
equality with men, and to effect the structural, social and cultural
changes necessary to correct past and current forms and effects
of discrimination against women, as well as to provide them with
compensation. These measures are of a temporary nature
16. Article
4, paragraph 2, provides for non-identical treatment of women and
men due to their biological differences. These measures are of a
permanent nature, at least until such time as the scientific and
technological knowledge referred to in article 11, paragraph 3,
would warrant a review.
B. Terminology
17. The travaux préparatoires of the Convention use different
terms to describe the "temporary special measures" included
in article 4, paragraph 1. The Committee itself, in its previous
general recommendations, used various terms. States parties often
equate "special measures" in its corrective, compensatory
and promotional sense with the terms "affirmative action",
"positive action", "positive measures", "reverse
discrimination", and "positive
discrimination".
These terms emerge from the discussions and varied practices found
in different national contexts4. In the present general recommendation,
and in accordance with its practice in the consideration of reports
of States parties, the Committee uses solely the term "temporary
special measures", as called for in article 4, paragraph 1.
C. Key elements
of article 4, paragraph 1
18. Measures taken under article 4, paragraph 1, by States parties
should aim to accelerate the equal participation of women in the
political, economic, social, cultural, civil or any other field.
The Committee views the application of these measures not as an
exception to the norm of non discrimination, but rather as an emphasis
that temporary special measures are part of a necessary strategy
by States parties directed towards the achievement of de facto or
substantive equality of women with men in the enjoyment of their
human rights and fundamental freedoms. While the application of
temporary special measures often remedies the effects of past discrimination
against women, the obligation of States parties under the Convention
to improve the posit ion of women to one of de facto or substantive
equality with men exists irrespective of any proof of past discrimination.
The Committee considers that States parties that adopt and implement
such measures under the Convention do not discriminate against men.
19. States parties
should clearly distinguish between temporary special measures taken
under article 4, paragraph 1, to accelerate the achievement of a
concrete goal for women of de facto or substantive equality, and
other general social policies adopted to improve the situation of
women and the girl child. Not all measures that potentially are,
or will be, favourable to women are temporary special measures.
The provision of general conditions in order to guarantee the civil,
political, economic, social and cultural rights of women and the
girl child, designed to ensure for them a life of dignity and non
-discrimination, cannot be called temporary special measures.
20. Article
4, paragraph 1, explicitly states the "temporary" nature
of such special measures. Such measures should therefore not be
deemed necessary forever, even though the meaning of "temporary"
may, in fact, result in the application of such measures for a long
period of time. The duration of a temporary special measure should
be determined by its functional result in response to a concrete
problem and not by a predetermined passage of time. Temporary special
measures must be discontinued when their desired results have been
achieved and sustained for a period of time.
21. The term
"special", though being in conformity with human rights
discourse, also needs to be carefully explained. Its use sometimes
casts women and other groups who are subject to discrimination as
weak, vulnerable and in need of extra or "special" measures
in order to participate or compete in society. However, the real
meaning of "special" in the formulation of article 4,
paragraph 1, is that the measures are designed to serve a specific
goal.
22. The term
"measures" encompasses a wide variety of legislative,
executive, administrative and other regulatory instruments, policies
and practices, such as outreach or support programmes; allocation
and/or reallocation of resources; preferential treatment; targeted
recruitment, hiring and promotion; numerical goals connected with
time frames; and quota systems. The choice of a particular "measure"
will depend on the context in which article 4, paragraph 1, is applied
and on the specific goal it aims to achieve.
23. The adoption
and implementation of temporary special measures may lead to a discussion
of qualifications and merit of the group or individuals so targeted,
and an argument against preferences for allegedly lesser-qualified
women over men in areas such as politics, education and employment.
As temporary special measures aim at accelerating achievement of
de facto or substantive equality, questions of qualification and
merit, in particular in the area of
employment in
the public and private sectors, need to be reviewed carefully for
gender bias as they are normatively and culturally determined. For
appointment, selection or election to public and political office,
factors other than qualification and merit, including the application
of the principles of democratic fairness and electoral choice, may
also have to play a role.
24. Article
4, paragraph 1, read in conjunction with articles 1, 2, 3, 5 and
24, needs to be applied in relation to articles 6 to 16 which stipulate
that States parties "shall take all appropriate measures".
Consequently, the Committee considers that States parties are obliged
to adopt and implement temporary special measures in relation to
any of these articles if such measures can be shown to be necessary
and appropriate in order to accelerate the achievement of the overall,
or a specific goal of, women's de facto or substantive equality.
IV. Recommendations
to States parties
25. Reports
of States parties should include information on the adoption, or
lack thereof, of temporary special measures in accordance with article
4, paragraph 1, of the Convention, and States parties should preferably
adhere to the terminology "temporary special measures",
to avoid confusion.
26. States parties
should clearly distinguish between temporary special measures aimed
at accelerating the achievement of a concrete goal of women's de
facto or substantive equality, and other general social policies
adopted and implemented in order to improve the situation of women
and the girl child. States parties should bear in mind that not
all measures which potentially are or would be favourable to women
qualify as temporary special measures.
27. States parties
should analyse the context of women's situation in all spheres of
life, as well as in the specific, targeted area, when applying temporary
special measures to accelerate achievement of women's de facto or
substantive equality. They should evaluate the potential impact
of temporary special measures with regard to a particular goal within
their national context and adopt those temporary special measures
which they consider to be the most appropriate in order to accelerate
the achievement of de facto or substantive equality for women.
28. States parties
should explain the reasons for choosing one type of measure over
another. The justification for applying such measures should include
a description of the actual life situation of women, including the
conditions and influences which shape their lives and opportunities
- or that of a specific group of women, suffering from multiple
discrimination - and whose position the State party in tends to
improve in an accelerated manner with the application of such temporary
special measures. At the same time, the relationship between such
measures and general measures and efforts to improve the position
of women should be clarified.
29. States parties
should provide adequate explanations with regard to any failure
to adopt temporary special measures. Such failures may not be justified
simply by averring powerlessness, or by explaining inaction through
predominant market or political forces, such as those inherent in
the private sector, private organizations, or political parties.
States parties are reminded that article 2 of the Convention, which
needs to be read in conjunction with all other articles, imposes
accountability on the State party for action by these actors.
30. States parties
may report on temporary special measures under several articles.
Under article 2, States parties are invited to report on the legal
or other basis for such measures, and their justification for choosing
a partic ular approach. States parties are further invited to give
details about any legislation concerning temporary special measures,
and in particular whether such legislation provides for the mandatory
or voluntary nature of temporary special measures.
31. States parties
should include, in their constitutions or in their national legislation,
provisions that allow for the adoption of temporary special measures.
The Committee reminds States parties that legislation, such as comprehensive
anti discrimination acts, equal opportunities acts or executive
orders on women's equality, can give guidance on the type of temporary
special measures that should be applied to achieve a stated goal,
or goals, in given areas. Such guidance can also be contained in
specific legis lation on employment or education. Relevant legislation
on non-discrimination and temporary special measures should cover
governmental actors as well as private organizations or enterprises.
32. The Committee
draws the attention of States parties to the fact that temporary
special measures may also be based on decrees, policy directives
and/or administrative guidelines formulated and adopted by national,
regional or local executive branches of government to cover the
public employment and education sectors. Such temporary special
measures may include the civil service, the political sphere and
the private education and employment sectors. The Committee further
draws the attention of States parties to the fact that such measures
may also be negotiated between social partners of the public or
private employment sector or be applied on a voluntary basis by
public or private enterprises, organizations, institutions and political
parties.
33. The Committee
reiterates that action plans for temporary special measures need
to be designed, applied and evaluated within the specific national
context and against the background of the specific nature of the
problem which they are intended to overcome. The Committee recommends
that States parties provide in their reports details of any action
plans which may be directed at creating access for women and overcoming
their under representation in certain fields, at redistributing
resources and power in particular areas, and/or at initiating institutional
change to overcome past or present discrimination and accelerate
the achievement of de facto equality. Reports should also explain
whether such action plans include considerations of unintended potential
adverse side -effects of such measures as well as on possible action
to protect women against them. States parties should also describe
in their reports the results of temporary special measures and assess
causes of possible failure of such measures.
34. Under article
3, States parties are invited to report on the institution(s) responsible
for designing, implementing, monitoring, evaluating and enforcing
such temporary special measures. Such responsibility may be vested
in existing or planned national institutions, such as women's ministries,
women's departments within ministries or presidential offices, ombudspersons,
tribunals or other entities of a public or private nature with the
requisite mandate to design specific programmes, monitor their implementation,
and evaluate their impact and outcomes. The Committee recommends
that States parties ensure that women in general, and affected groups
of women in particular, have a role in the design, implementation
and evaluation of such programmes. Collaboration and consultation
with civil society and non-governmental organizations representing
various groups of women is especially recommended.
35. The Committee
draws attention to and reiterates its general recommendation No.
9, on statistical data concerning the situation of women, and recommends
that States parties provide statistical data disaggregated by sex
in order to measure the achievement of progress towards women's
de facto or substantive equality and the effectiveness of temporary
special measures.
36. States parties
should report on the type of temporary special measures taken in
specific fields under the relevant article(s) of the Convention.
Reporting under the respective article(s) should include references
to concrete goals and targets, timetables, the reasons for choosing
particular measures, steps to enable women to access such measures,
and the institution accountable for monitoring implementation and
progress. States parties are also asked to describe how many women
are affected by a measure, how many would gain access and participate
in a certain field because of a temporary special measure, or the
amount of resources and power it aims to redistribute to how many
women, and within what time frame.
37. The Committee
reiterates its general recommendations Nos. 5, 8 and 23, wherein
it recommended the application of temporary special measures in
the fields of education, the economy, politics and employment, in
the area of women representing their Governments at the international
level and participating in the work of international organizations,
and in the area of political and public life. States parties should
intensify, within their national contexts, such efforts especially
with regard to all facets of education at all levels as well as
all facets and levels of training, employment and representation
in public and political life. The Committee recalls that in all
instances, but particularly in the area of health, States parties
should carefully distinguish in each field between measures of an
ongoing and permanent nature and those of a temporary nature.
38. States parties
are reminded that temporary special measures should be adopted to
accelerate the modification and elimination of cultural practices
and stereotypical attitudes and behaviour that discriminate against
or are disadvantageous for women. Temporary special measures should
also be implemented in the areas of credit and loans, sports, culture
and recreation, and legal awareness. Where necessary, such measures
should be directed at women subjected to multiple discrimination,
including rural women.
39. Although
the application of temporary special measures may not be possible
under all the articles of the Convention, the Committee recommends
that their adoption be considered whenever issues of accelerating
access to equal participation, on the one hand, and accele rating
the redistribution of power and resources, on the other hand, are
involved as well as where it can be shown that these measures will
be necessary and most appropriate under the circumstances.
Notes
1 Indirect discrimination against women may o ccur when laws, policies
and programmes are based on seemingly gender -neutral criteria which
in their actual effect have a detrimental impact on women. Gender
-neutral laws, policies and programmes unintentionally may perpetuate
the consequences of past discrimination. They may be inadvertently
modelled on male lifestyles and thus fail to take into account aspects
of women's life experiences which may differ from those of men.
These differences may exist because of stereotypical expectations,
attitudes and behaviour directed towards women which are based on
the biological differences between women and men. They may also
exist because of the generally existing subordination of women by
men.
2 "Gender
is defined as the social meanings given to biological sex differences.
It is an ideological and cultural construct, but is also reproduced
within the realm of material practices; in turn it influences the
outcomes of such practices. It affects the distribution of resources,
wealth, work, decision- making and polit ical power, and enjoyment
of rights and entitlements within the family as well as public life.
Despite variations across cultures and over time, gender relations
throughout the world entail asymmetry of power between men and women
as a pervasive trait. Thus, gender is a social stratifier, and in
this sense it is similar to other stratifiers such as race, class,
ethnicity, sexuality, and age. It helps us understand the social
construction of gender identities and the unequal structure of power
that underlies the relationship between the sexes." 1999 World
Survey on the Role of Women in Development, United Nations, New
York, 1999, page ix.
3 See, for example,
the International Convention on the Elimination of All Forms of
Racial Discrimination, which mandates temporary special measures.
The practice of treaty monitoring bodies, including the Committee
on the Elimination of Racial Discrimination, the Committee on Economic,
Social and Cultural Rights, and the Human Rights Committee, shows
that these bodies
con sider the application of temporary special measures as mandatory
to achieve the purposes of the respective treaties. Conventions
adopted under the auspices of the International Labour Organization,
and various documents of the United Nations Educational, Scientific
and Cultural Organization also explicitly or implicitly provide
for such measures. The
Subcommission on the Promotion and Protection of Human Rights considered
this question and appointed a Special Rapporteur to prepare reports
for its considerat ion and action. The Commission on the Status
of Women reviewed the use of temporary special measures in 1992.
The outcome documents adopted by United Nations world conferences
on women, including the Platform for Action of the 1995 Fourth World
Conference on Women and its follow- up review
of 2000, contain references to positive action as a tool for achieving
de facto equality. The use of temporary special measures by the
Secretary - General of the United Nations is a practical example
in the area of women's employment, including through administrative
instructions on the recruitment, promotion and placement of women
in the Secretariat. These measures aim at
achieving the goal of 50/50 gender distribution at all levels, but
at the higher echelons in particular.
4 The term "affirmative
action" is used in the United States of America and in a number
of United Nations documents, whereas the term "positive action"
is currently widely used in Europe as well as in many United Nations
documents. However, the term "po sitive action" is used
in yet another sense in international human rights law to describe
"positive State action" (the obligation of a State to
initiate action versus a State's obligation to abstain from action).
Hence, the term "positive action" is ambiguous inasmuch
as its meaning is not confined to temporary special measures as
understood in article 4, paragraph 1, of the Convention. The terms
"reverse discrimination" or "positive discrimination"
are criticized by a number of commentators as inappropriate.
More
details of General Recommendations
1-10, 11-18,
19, 20,
21, 22,
23, 24,
25
Back to top
This
page was last updated on July10, 2004
“IWRAW
Asia Pacific is an independent, non-profit, NGO in Special consultative
status with the Economic and Social Council of the United Nations.”
©IWRAW Asia Pacific
Contact Us | Site
Map
|
