The extent to which international human rights law protects women’s human rights, including combating discrimination towards women


Introduction

It is arguably fair to suggest that there is likely little opposition to the notion that human rights are of significant importance within international law. The Preamble to the Universal Declaration of Human Rights states that, ‘human rights should be protected by the rule of law’, and Article One states that, ‘All human beings are born free and equal in dignity and rights.’ Whilst this is clearly an explicit attempt to provide clarity and direction in terms of the international legal approach to human rights, as well as an implicit understanding that men and women have equal rights, it is questionable how far in reality women do enjoy equality within international human rights. It has been argued that the development of women’s human rights on an international scale has the potential ability to change human rights laws in general. Whilst this argument is certainly not being challenged within this research, at the present time it is arguably not convincing that women’s human rights are in fact protected, particularly in terms of combating discrimination towards women. It has been argued that at least part of the approach towards international human rights appears to have been devised from a male perspective and that it does not focus on the urgent risks women face within the world. This argument was suggested in reference to the similarities between the generations in the hierarchal system of the development of human rights within the United Nations system, which from a woman’s perspective, all generations have the similarity in terms that they appear to have been devised from a male perspective. (The generation approach is discussed further later in this research.) In addition, women’s rights are arguably being increasingly asserted across the world in the present day, with events such as International Women’s Day taking place annually. However, whilst human rights for women are a significant topic on an international level and efforts have been made to ensure that human rights of women are protected and that discrimination is combated, it is questionable whether they in fact are protected. This research therefore aims to assess the extent to which international human rights law protects women’s human rights, including combating discrimination towards women. It aims to establish just how far human rights for women extend. The research aims to suggest reasons for any lack of women’s human rights with suggestions towards change.

International human rights law and women’s human rights

‘International law has traditionally been seen as a law that regulates relations between independent and sovereign states’. It is therefore primarily concerned with state to state relations where states play a large role in the creation of international law norms with control of key players such as the General Assembly and the Security Council through membership in the United Nations. International law differs from state laws in that there is an absence of legislature, enforcement of legislature and bodies to try violations of the law. Such absent features have caused some critics to deem it not a law at all. However, in opposition to this, a feature of international law is the International Court of Justice which is a part of the UN. It has been argued that Article 38 of the Statute of the International Court of Justice contains the principles and rules of the international community. It is often argued that this defines sources of international law which it states what the court should apply when deciding any disputes. However, regardless of the differences in international law and state law, including whether or not one may wish to view international law as a law or not, it is arguably undeniable that in the present age international law plays a key role in the relationship between states on a global level. It is a key factor for states to bear in mind when legislating, as well as, and arguably more importantly, when states are carrying out their functions.

It has been argued that the development of international human rights law is one of the most significant changes to take place since the end of World War Two. The United Nations was created and one of the remits of the organisation was to reinforce belief in human rights. The United Nations Charter was also formed which represents the constitution of the UN. With the presence of international human rights laws, international laws are able to interfere with human rights. It could be argued that this is a potentially powerful tool as it offers extra protection towards human rights, with a degree of independence from the state which may be violating them. There have also been more recent significant changes taking place within the field of international human rights such as the replacement of the Human Rights Commission with the United Nations Human Rights Council in 2006. It has been argued that international human rights law differs from other areas of international law where the international aspect is a central point and that when developing any framework the international aspects cannot be ignored. In addition many of the organisations which have been created to promote the ideals of human rights have been created by international law. It has been described that within international law in general that the states are the individuals. However, international human rights law challenges this norm of international law in terms of how it allows individuals the right to access international law and make individual international legal claims. The focus should therefore not be directly on the state.

One aspect of international human rights law which is arguably pertinent to this research is what is termed the generations in the hierarchal system of the development of human rights within the United Nations system. As mentioned earlier it has been argued that from a woman’s perspective, all generations have the similarity in terms that they appear to have been devised from a male perspective. The first generation of rights is regarding political and civil rights, the second regarding cultural, social and economic, and the third regarding people’s or group rights. These rights are often prioritised where the first generation are given precedence over second generation rights on the basis that they are quicker and less costly to implement. It has been argued that this approach has been weakened by the introduction of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights. The third generation of rights has been more recently introduced with the support of third world countries and supports rights such as self determination and environmental rights. It has been pointed out that this generation approach is controversial as it suggests that the development of human rights within the United Nations has a hierarchal approach. It could be argued that this aspect of international human rights law demonstrates not only what has been argued as human rights devised from a male perspective but that individual's rights are not at the forefront of international human rights. This it could be argued is slightly ironic in terms of what human rights stand for. In addition to this, if international human rights are devised from a male perspective one could argue that women’s human rights set off with a disadvantage, and men’s with a head start.

Whilst international human rights have focused on the rights of the individual it has been argued that there has been little focus on the rights of minorities who suffer discrimination. There is only one specific minority rights provision at the global level which is that of Article 27 of the International Covenant on Civil and Political Rights (ICCPR). In addition, despite advances and progress in international human rights law it has been argued that it is still somewhat limited and that it is affected like other areas of international law, but arguably more so, by the lack of enforcement mechanisms.

A discussion and critique of international law on women’s human rights and combating discrimination against women

The Charter of the United Nations at Article 8 states, ‘The United Nations shall place no restrictions on the eligibility of men and women to participate in any capacity and under conditions of equality in its principal and subsidiary organs.’ It would appear that efforts have been made to pave way for ensuring a lack of discrimination against women in terms of international human rights and this can be seen further through the text of legislation such as the Universal Declaration of Human Rights. It has been acknowledged that women have historically suffered from discrimination and that international human rights law has attempted to reduce this through treaties with the main piece of legislation being the Convention of the Elimination of All Forms of Discrimination Against Women 1979. The establishment of the Committee on the Elimination of Discrimination against Women is arguably further evidence towards this. However, it has been pointed out that there are difficulties in implementing and applying these international human rights laws. It has been argued that there is a recognised issue in international human rights law which is that women are not part of the law making processes and that this results in an absence of their rights. It has also been argued that international human rights law is advantageous towards the lives of men and in doing so leaves women on the peripheral. It has been argued that international human rights for women are instruments which are in place specifically for women in order to ensure that they should be treated equally to men. In response to this one could argue that this view does not account for women as diverse from men where they may suffer discrimination which men may not suffer thus meaning they need additional protection of rights to ensure that this is eliminated. It has been argued that the instruments which deal specifically with international human rights for women are delicately structured and institutions set up to deal with the rights are often under resourced. This section will analyse legislation and committees established to support women’s rights as well as discuss examples of how this works in reality.

Universal Declaration of Human Rights

The Universal Declaration of Human Rights is a core piece of international law concerning human rights and arguably of significant relevance when discussing human rights for women. Article 1 states that ‘All human beings are born free and equal in dignity and rights.’ This Article explicitly prescribes equality amongst all in terms of dignity and rights which suggests that there should be no issues in terms of women’s human rights. Article 2 furthers this notion by stating that, ‘Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, and sex’. Articles 8 and 10 of the Declaration further the emphasis on equality in light of the law and specifically in terms of justice, and Article 23 in terms of equality at work The whole notion and direction of this significant and arguably mother of international human rights law is based upon equality and therefore equality of human rights. The fact that there are issues such as those which have been discussed throughout this research, could arguably suggest that the law on human rights has ironically breached part of what it is formed from.

Issues regarding human rights for women are recognised in the Convention of the Elimination of Discrimination against Women (CEDAW) where it states at the outset, ‘Concerned, however, that despite these various instruments extensive discrimination against women continues to exist’.

Convention of the Elimination of Discrimination against Women (CEDAW)

The Convention of the Elimination of Discrimination against Women is arguably the main piece of international law on human rights aimed at women and strengthening their human rights. It has been formed from over 30 years of work of the United Nations Commission on the Status of Women. The Convention states that, ‘The spirit of the Convention is rooted in the goals of the United Nations: to reaffirm faith in fundamental human rights, in the dignity,v and worth of the human person, in the equal rights of men and women’. It has been pointed out that it is the most ratified human rights instrument. It has been argued that it has been drafted to ensure equality in all aspects of life for men and women.

Arguably however, much of the preamble to this Convention is disheartening in terms of the concerns and state of international human rights towards women. Once may wish to suggest that it is somewhat a poor start to a Convention in terms of how it creates a harrowing backdrop with little inspiration or empowerment towards women for a piece of international legislation which is in place to assist women in terms of their human rights and combating discrimination.

Article 1 of the Convention of the Elimination of Discrimination against Women defines discrimination against women as:

any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.

It is possibly fair to deduce that this definition is helpful and attempts to encompass as much as possible, and arguably seems to capture the appropriate actions. However, one may question why the words "or intention" were not included after, ‘effect or purpose’. Surely one does not have to produce an effect or purpose to be discriminating? Arguably the intention to do so, whilst it may not result in the effect of discrimination, would surely be discriminatory in its own light?

Article 2 of the Convention appears to act as an instructional tool and principles of best practice. Whilst the actions which should be undertaken are in the spirit of ensuring human rights for women, equality and lack of discrimination, unless nations take heed of these and make progress in implementing them, then arguably they are not hugely effective. Unfortunately there are issues concerning the amount of reservations to provisions of human rights treaties and this affects the CEDAW too. However according to the UN, CEDAW has received the highest number of reservations amongst all the human rights treaties. This is concerning as such action arguably demonstrate that the human rights of women are not thought highly of in terms of international human rights as a whole. CEDAW takes the approach that states which have made reservations may still join even when objections have been made to these. It will only not let them if the reservations go against the purpose and object of the CEDAW. However there is no dedicated committee to decide on how legitimate reservations are or is there any objective test to determine this. The Vienna Convention on the Law of Treaties 1969 at Article 2(d) details what a reservation to a Treaty is, describing it as a statement modifying or excluding specific provisions of a treaty in terms of their legal effect. CEDAW adopts at Article 28 (2) the impermissibility principle where reservations are not allowed where they are not compatible with the purpose and object of the Convention. This is adopted from the Vienna Convention on the Law of Treaties. It has been cited that Article 2 and 16 of CEDAW are considered by the Commission as the main principles in the Convention, and that the Committee is concerned at the number of reservations to these Articles. What is somewhat concerning is that it has been openly admitted that the Convention does not prohibit such reservations which are clearly challenging the principal of the Convention, but instead expects other states to do so. Surely if these are not allowed they should not be in existence and the fact that the Convention does not prohibit them arguably weakens the stance it takes in support of women’s human rights and combating discrimination.

It has been argued that an achievement of the CEDAW is the advancement in the area of women’s status and rights in conflict, which it has been argued was considered a silent area in women’s human rights prior to this. The CEDAW achieved this through the adoption of the General Recommendation Number 30 (GR30) on the rights of women in conflict prevention, conflict and post-conflict situations.

Article 17 of the CEDAW establishes the Committee on the Elimination of Discrimination Against Women (Committee) which consists of 23 experts of ‘high moral standing and competence in the field of the Convention’. Their role predominantly appears to be concerned with considering reports submitted by sates regarding measures that are been put in place to establish the suggestions of the Convention. The latter is detailed at Article 18.

Whilst the Convention appears overall thorough in terms of asserting a range of women’s human rights it seems to focus predominantly on state roles and what could be termed the public role. It appears silent on gender based violence.

The public and private divide and gender based violence towards women

It has been argued that there is distinguishment in all international human rights laws between public and private spheres in terms of suggesting that legal and political activity takes place in the public sphere yet there is no need for regulating within the private sphere. It has been argued that international human rights law is targeted towards non violation of human rights by the state in terms of public bodies and government rather than on focusing on the violation by individuals. This can be seen in the CEDAW where many articles focus on rights provided by public bodies such as education and where many of the articles begin with, ‘State parties shall take all appropriate measures to ensure…’ This is arguably a worry as it has been pointed out that private life can include domestic life thus meaning many issues are unseen and less likely to change. It has been pointed out that abuse against women has been documented and that such abuse which would normally be captured within the traditional human rights law. It has been argued that violence against women prevents women from enjoying the human right of freedom which is right enjoyable by both men and women. However, despite the lack of focus of much of international human rights law on the violation of human rights by individuals, it has been argued that the nature of the law does not only prevent states from violating them, it lays an onus on them to ensure human rights are not violated. Such application of the law on individuals is known as positive or horizontal application of the law. Whilst it has been pointed out that violence against women in both a private and official sense is beginning to be viewed as a human rights issue, domestic violence is not as far recognised. The latter type of violence has been described as a form of torture.

The reality

Following the discussion on international human rights law, specifically in terms of what is available to women in terms of human rights and tackling discrimination, it is helpful to briefly turn to case laws and views of the The Committee on the Elimination of Discrimination against Women to examine how the legislation and efforts in place to protect the human rights of women and combat discrimination against them are viewed and acted upon by states. This can be seen for example through the views of the Committee on the Elimination of Discrimination against Women regarding Jallow v Bulgaria. This case concerns alleged violations of many articles of the CEDAW by Bulgaria against a woman and her daughter in terms of discriminatory treatment and a failure of the state to protect her from domestic violence. The case concerned domestic abuse by her husband towards herself and her daughter. Despite many cries for help and attempts to move her and her daughter to safety the authorities were not overtly helpful. However, when her husband later decided to allege that she had been the abuser he was eventually able to get a court order against her and take the child. It would appear that the state had taken a wholly different approach to a man than to a woman for similar allegations made by both about the other. The Committee found in relation to this case that Bulgaria had violated parts of Article 2, 5 and 15 of the Conventions and amongst its recommendations it stated that to take measures to ensure that women victims of domestic violence, in particular migrant women, have effective access to services related to protection against domestic violence and to justice

Arguably breaches of the European Convention on Human Rights 1950 and any other domestic legislation on human rights in terms of not upholding women’s human rights are examples of a weakness in international human rights for women. In Eremia v Moldova it was found that Moldova had breached obligations in terms of the European Convention on Human Rights 1950, namely Article 3 and 14 as it had failed to protect a woman from further domestic violence from her husband. In A v Croatia it was found that Croatia also breached Article 3 of the European Convention on Human Rights 1950 as it had failed to protect her from further domestic abuse.

Conclusion

This research has analysed international women’s human rights, including how these assist in combating discrimination towards woman by discussing the context of international human rights law in general, as well as looking specifically at international law regarding women’s human rights in terms of what exists and how this works in reality. As the research has moved on conclusions have been deduced towards answering the extent to which international human rights law protect women’s human rights, including combating discrimination towards women. This conclusion therefore provides a summary of the findings with regards to this question as well as makes some recommendations and suggestions towards furthering the protection of women’s international human rights and combating discrimination towards them.

In summary it would appear that from the early days of international human rights efforts were made to voice a distinct message that part of international human rights is about equality, and that no type of person, including distinguishing by sex, should enjoy more or less human rights than another. Clearly this has not been the case yet efforts have been made to maintain that message. For women this has been demonstrated specifically through the CEDAW. However, it would appear that this convention does not go far enough. This is partly in terms of what it prescribes and how it does so where there appears to be a focus on state responsibilities which lean towards the public in the public and private divide, and partly in terms of how it is set within the wider remit of international law with regards to the approach it adopts in terms of reservations. A piece of legislation which allows those it covers to effectively weaken and undermine it is arguably a weak piece of legislation which is not functioning according to its purpose. A further factor in terms of the extent to which international human rights law protect women’s human rights, including combating discrimination towards women is the apparent lack of recognition of the diversity of potential discrimination towards women which is arguably prevalent towards them and not necessarily towards others. For example gender based violence, namely that of domestic violence. Where a potential discrimination has not necessarily existed heavily in other areas it may not have been a focus and therefore there is an argument that human rights for women needs to be tailored specifically towards where the problems occur which then result in discrimination and a lack of human rights.

Finally, it is interesting to note what has been pointed out in terms of reservations towards the CEDAW, which for the purposes of this research could be considered resistance to human rights for women. It has been pointed out that Muslim states have made the most reservations in terms of contractions in the CEDAW to Sharia law. Further examples of reservations are from India on the basis of interference in personal affairs, religion and customs. France has made reservations on the basis that it will not allow an automatic eligibility to social security for all women, and New Zealand entered reservations based upon not wanting to change it domestic code regarding armed forces. This arguably furthers the point that international human rights for women should be tailor focused and in light of this, by bearing in mind differences in cultures and religions. One could argue that it is potentially fruitless to compose an international law for human rights for women, as well as other sectors, to blanket cover all when there are so many diversities amongst cultures and religions. Arguably creating law which will give obvious rise to resistance is not productive in terms of the purpose of the law. It is arguable that international human rights law protects women’s human rights, including combating discrimination towards women to a moderate extent but does not go far enough, particularly in terms of gender based violence and the private side of the public private divide.

Bibliography

Primary Sources

Legislation

Charter of the United Nations 1945

Universal Declaration of Human Rights 1948

Vienna Convention on the Law of Treaties 1969

Convention of the Elimination of All Forms of Discrimination Against Women 1979

Secondary Sources

Books

Alston P and Goodman R, International Human Rights (OUP Oxford, 2013)

Cook R.J (ed), Human Rights of Women: National and International Perspectives (University of Pennsylvania Press, Illustrated, 1994)

Edwards A, Violence under International Human Rights (Cambridge University Press, 2010)

Rehman J, International Human Rights Law (Pearson Education, 2010)

Journals and Case Comments

Jallow v Bulgaria CEDAW/C/52/D/32/2011 (Commission views, 28 August 2012)

M Masud, ‘Tackling gender inequality: the challenges facing the universal application of CEDAW across ratifying states’ (2016) Coventry Law Journal, 21(2), 30-40

C O’Rourke and A Swaine, ‘CEDAW and the Security Council: enhancing women’s rights in conflict’ (2018) International and Comparative Law Quarterly, 67(1), 167-199

Westlaw, A v Croatia [2011] 1 F.L.R. 407(case analysis)

Westlaw, Eremia v Moldova (3564/11) (2014) 58 E.H.R.R. 2 (case analysis)

Online Sources

United Nations, ‘Reservations to CEDAW’ <http://www.un.org/womenwatch/daw/cedaw/reservations.htm>accessed 29 June 2018

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