The
Principle of Non-Discrimination
The second
principle that needs to be examined is the principle of non-discrimination.
This principle is based on the understanding that discrimination
is socially constructed and that it is not an essential or natural
principle of human interaction. This recognises the need and paves
the way for concerted action against inequality and the institutional
mechanisms which perpetuate it.
How can
we recognise discrimination?
The CEDAW
Convention's definition of discrimination in article 1 can be
summarised as follows:
The above
definition is useful because it helps us identify the weaknesses
of formal or so called neutral laws and policies. A law or policy
may not have the intention of denying a woman the enjoyment of
rights but if it has the effect of doing so then it constitutes
discrimination. An example that comes from Australia illustrates
how neutral policies may disadvantage women who may be in a weak
position because of the effect of past discrimination. A so-called
neutral retrenchment policy of 'last hired first fired' was found
to be discriminatory against women by the courts because it did
not take into consideration the effect of past discriminatory
recruitment policies of the company. The women were in the position
of 'last hired' because the company had had a policy several years
ago of not recruiting women. Because of the effect of past discrimination,
neutral policies such as 'last hired first fired' discriminate
against women although discrimination may not have been intended.
In many of
our countries women continue to suffer from the effect of past
or historic discrimination. For example, women may not have been
appointed in officer grade posts within government in the past
as a matter of policy. With current enlightenment this policy
may be removed and in fact there may not any longer be a formal
barrier to even appoint women into senior top-level posts in government.
But the de facto situation may still be that no women are appointed
into the senior posts because women may not be able to fulfill
a condition that may exist that the eligibility to fill the senior
posts requires x-number of years experience at officer grade.
Women may not have the required number of years experience at
officer level because of the previously discriminating policy
of not appointing women at officer level. Men may then continue
to hold the senior positions although there is no current discrimination
in policy.
The existence
of conditions for eligibility that women cannot fulfill through
no fault of their own and which privileges men has the effect
of discriminating against women although no discrimination was
intended. Under these circumstances the State is obligated to
put in place some temporary special measure or affirmative action
to help correct the effect of past discrimination.
Secondly,
the CEDAW Convention recognises that despite legal rights being
granted to women in many countries, discrimination persists, and
women's access to legal rights are curtailed by denial of women's
rights to economic and social development. Hence it bridges the
traditional divisions between civil and political and socio-economic
rights and it mandates both legal and development policy measures
to guarantee the rights of women.
The uniqueness
of the CEDAW Convention rests on these core principles which further
demand that power relations between women and men at all levels,
from family, to community, market and state.
The convention
discards the distinction between the private and the public spheres,
by recognising violations of women in the private sphere i.e.
the home, as violations of women's human rights.
The convention
also recognises the negative impact of social, customary and cultural
practices which are based on the idea of the "inferiority
or the superiority" of either sex or on stereotyped roles
for women and men (article 5).
Articles 1
and 5 give the Convention the widest applicability in identifying
measures for eliminating discrimination, as together they can
be interpreted to refer to almost any situation that adversely
affects women.
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