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Need
for conceptual clarity
It is critical
that the State party implements its obligations according to the
spirit of the CEDAW Convention. Hence, having clarity with regard
to the meaning of equality and non-discrimination is essential.
The CEDAW Convention obligates States to view women as autonomous
human beings with equal claims to the exercise of all human rights
and fundamental freedoms in the economic, social, cultural and political
fields (articles 1 and 3). This means that rights for women should
encompass all aspects of life and not be focused on just their roles
as wives and mothers. If women are to develop as full human beings,
it implicitly requires that stereotypical roles for women are not
condoned and male responsibility for the upbringing of children
and care of the family has to be promoted by the State (articles
5a and 5b).
In its review,
the CEDAW Committee is critical of States whose actions are limited
to facilitating the roles of women as mothers and viewing this as
promoting women's rights. Nor is it considered adequate to show
large numbers of women as target groups for a particular programme
or service. The conceptual basis of the programme or service needs
to be examined to determine whether it promotes equality and autonomy
for women.
Three basic
principles of the CEDAW Convention
Under the framework
of the CEDAW Convention, rights for women are based on three main
principles: the principle of equality, non-discrimination and State
obligation. The following section provides a summary of these principles.
(For details of these principles, click here
instead)
(i) The
principle of equality
The principle
of equality is central to the CEDAW Convention. The convention promotes
the substantive model of equality and consolidates two central approaches
to equality. First, it stresses the importance of equality of opportunity
in terms of women's access on equal terms with men to the resources
of a country. This has to be secured by a framework of laws and
policies, and supported by institutions and mechanisms for their
operation. But the CEDAW Convention goes beyond this in emphasising
that the measure of a State's action to secure the human rights
of women and men needs to ensure equality of results. The indicators
of State progress, in the eyes of the CEDAW Convention, lie not
just in what the State does, but in what the State achieves in terms
of real change for women. Article 2 of the CEDAW Convention enjoins
States parties to ensure the practical realisation of rights. Thus,
the State is obligated to show results, not just stop at a framework
of equality that is strong on paper. This approach to equality is
referred to as substantive equality. Hence, the CEDAW Convention
stresses that the principle of substantive equality must inform
the practice of institutions. In conclusion, the CEDAW Convention
requires the State to implement this treaty using a substantive
model of equality which encompasses and ensures the following:
- Equality
of opportunity through law, policy, programmes and institutional
arrangements;
- Equality
of access by eliminating all obstacles that prevent access to
the opportunities as well as taking positive steps to ensure the
goal of equality is achieved; and
- Equality
of results.
(ii)
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 for and
paves the way for concerted action against inequality and the institutional
mechanisms which perpetuate it.
How can we
recognise discrimination?
The CEDAW Convention
defines discrimination in Article 1:
"Anything,
(distinction, exclusion, restriction) action/non-action which
has the effect or purpose of nullifying or impairing women's enjoyment
of rights in all fields."
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 or purpose of denying a woman the enjoyment of
rights but if it has the effect of doing so because it has not taken
into consideration the differences between women and men, then it
constitutes discrimination. As mentioned earlier, neutrality (not
specifically excluding women) may result in discrimination. Hence,
it is not enough to have a policy for the appointment of women in
senior positions and then absolving oneself of not being able to
implement this policy because there are not enough women who meet
the criteria for the position. The non-availability of suitably
qualified women is invariably the consequence of past or historical
discrimination against women. In this case, the State is obligated
to take some form of affirmative action or pro-women remedies to
help women overcome the effects of past discrimination. Such actions
are essential to ensure access to the opportunity provided.
(iii)
The principle of State obligation
Substantive
issues
State obligation
as envisioned by the CEDAW Convention arises out of the understanding
of what equality means and how it can be achieved. The CEDAW Convention
obligates governments to base their initiatives for women on the
following principles:
- Not just
guarantees of rights but ensuring the realisation of rights (article
2a).
- Obligation
of means (through law, policy and programmes) and obligation of
results (not just de jure but also de facto) (article 2a).
- Prohibition
of discrimination in law, policy and practice through measures
such as anti-discrimination legislation (article 2b). Furthermore,
the State is obligated not only to regulate itself (article 2d)
but also the actions of private persons, organisations or enterprises
(article 2e). This means that the State not only respects the
rights of women but also protects them from being violated by
others.
- Elimination
of discrimination in the law (article 2f), ensure enforcement
of the principle of non-discrimination and provide immediate remedy
to combat discrimination where appropriate (article 2c), and put
in place programmatic measures to progressively eliminate discrimination
(article 3).
- Accelerate
de facto equality by implementing affirmative action (article
4).
Articles 2-4
spell out the broad State obligations while articles 5-16 provide
the substance and context in which the principles of State obligation
have to be applied. These substantive articles may not show every
context of women's lives, but the very fact that the CEDAW Convention
obligates States to eliminate all forms of discrimination against
women, means that all contexts are included. In particular, article
one which defines discrimination helps us to include all contexts.
Methodological
issues
Firstly, while
the content of State obligation is presented in 16 specific articles,
the articles cannot be viewed in isolation. Article one which defines
discrimination, articles 2-4 which spells out specific measures
required to eliminate discrimination, article 5 which requires the
recognition of the adverse effects of customary or cultural practices
on the equality status of women, and article 15 which underscores
women's right to equality before the law, are overarching articles
and need to be taken into consideration when dealing with every
issue or article pertaining to women.
Secondly, as
mentioned earlier, the substantive articles may not reflect every
context of women's lives, but the very fact that the CEDAW Convention
obligates States to eliminate all forms of discrimination against
women means that every context is included. Article one, which defines
discrimination and article 15, which deals with equality before
the law helps us to include all contexts.
Thirdly, since
the CEDAW Convention obligates the fulfillment of de facto equality,
obstacles to the exercise of a specific right which may arise from
several quarters need to be established and action taken. This requires
that an agency responsible for a particular sector may have to study
the adverse effects arising out of another sector. For example,
the Ministry of Labour in one country found that its attempts to
improve the employment status of women by enacting a law of equal
pay for equal work and providing 14 weeks paid maternity leave was
thwarted by a provision in the family code which required women
to get the permission of their husbands to be employed. Similarly
in another country, attempts to contain the problem of domestic
violence surfaced the fact that its social policy for housing, which
provided housing only to male members of the household, restricted
the options of women victims to take action. This was because magistrates
would not grant divorce to women victims of domestic violence as
they had no options for housing once they were divorced.
The implications
are that there has to be holistic approaches to ensure de facto
equality. Cross-sectoral links have to be established, consistent
and sustained monitoring of the effectiveness of positive State
policy law or programmes have to be undertaken and the parameters
of data gathering have to be expanded. This further requires the
review and reform of institutional arrangements as well as appropriate
capacity-building.
Fourthly, the
CEDAW Convention obligates the progressive implementation of State
obligations. The State is not expected to bring about equality for
women immediately. Since the review of progress is made every four
years, this provides blocks of four-year periods in which to set
priority targets and benchmarks for achievement which can be synchronised
with the development plans of the country.
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This
page was last updated on July 25, 2003
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