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Making human rights for women a reality

There has been a critical shift from CEDAW being an aspirational international document, to its gender equality standards becoming entrenched in national constitutions, laws and policies around the world. Lee Waldorf reflects on how and why this has happened.
Lee Waldorf
18 December 2009

On the thirtieth anniversary of the United Nations General Assembly’s adoption of the Convention on the Elimination of all forms of Discrimination Against Women – often referred to as a global bill of rights for women - the UN held commemorative events focusing on the successes in implementing the Convention. It did so, not simply because 2009 is an anniversary year, but as Navi Pillay, the UN High Commissioner for Human Rights noted recently, the phase of standard setting has largely been accomplished, and a robust normative framework is now in place. The task now is to try to ensure these standards will actually be implemented. However, for CEDAW perhaps more than for any other international human rights treaty, this implementation process is already well under way. UN agencies around the world, working in on-going partnerships with governments and civil society organizations have seen a critical shift, from CEDAW being an aspirational international document, to its gender equality standards becoming entrenched in national constitutions, laws, policies and judicial systems around the world. In recognition of this transformation and in an attempt to raise awareness of what has been achieved, the UN gathered stories to spread the word

The Indian Supreme Court’s 1999 decision in the Vishaka case relied on CEDAW to impose sexual harassment guidelines for the whole country, compensating for the complete absence of legislation in this area.  Motivated by the gang rape of a social worker by her own colleagues in a village in Rajasthan, and the failure of local officials to investigate, NGOs petitioned the Court to draft a law to compensate for the Indian Parliament’s inaction. Relying on provisions of the Indian Constitution and CEDAW, the court drew up a set of guidelines and norms, including detailed requirements for processing sexual harassment complaints, which will continue to bind private and public employers until the Government passes suitable legislation. The Vishaka decision was cited in 2009, along with CEDAW, by the Bangladesh High Court to similarly impose guidelines across the country.  In both cases the courts were clear that their national constitutions and CEDAW could and should be read together to establish the needed legal protection for women’s human rights.

Comparable use of CEDAW can also be seen in the Kenyan courts. Kenya’s Court of Appeal made an important decision in 2005 that directly addressed the conflict between discrimination against women built into customary laws on inheriting family property, and the guarantee of gender equality in Kenya’s Constitution, the African Charter, and CEDAW. In Rono vs. Rono the sons claimed a greater share of their deceased father’s property than their sisters and their father’s widow. They argued that “according to Keiyo traditions, girls have no right to inheritance of their father’s estate” and that customary law supported their claim. But the court found that, where discrimination is at stake, the Constitution and human rights standards must prevail. This challenge was addressed again in 2008 by the Kenyan High Court in the Ntutu decision, where it was argued that Masai customary law did not recognize a daughter’s right to inherit from her father’s estate. The Court relied on the Rono vs. Rono decision, noting in particular the need to respect the requirements of CEDAW and international law, and recognized women’s inheritance rights.

In Morocco, the introduction of a new Family Code in 2004 gave women greater equality and protection of their human rights within marriage and divorce, and enshrined the principle of shared family responsibilities between the spouses. It was the product of extensive public discussion of challenges women faced under the previous law, as well as analysis of the implications of human rights standards and religious texts. To help ensure effective implementation of the new rights that have been guaranteed, the legislative changes were also accompanied by the creation of dedicated Family Courts, and the Ministry of Justice is enhancing the provision of support services and training for judges and court officials. Introduction of the new Family Code has been part of a broader wave of important reforms within the country, including changes to the Nationality Code , changes to the Penal Code to criminalize spousal violence, changes to the Nationality Code (2007) to give women and men equal rights to transmit nationality to their children as required by the Convention’s Article 9 and changes to the Penal Code, which introduced a “national list” that reserved 30 parliamentary seats for women (2002). In light of these extensive changes to the nation’s legal framework to protect women’s human rights, the Government has announced its intention to remove Morocco’s reservations to the Convention.

In the CIS, more women are now successfully claiming their right to own land, due to comprehensive changes to the land reform processes in Kyrgyzstan and Tajikistan. The processes first put in place — involving de-collectivization and privatization of ownership — were not intended to discriminate against women. However, the standards set out in the Convention, and other international human rights treaties, were not met, and the actual impact of the processes left many women without any hope of land ownership. Once the true extent of the problem was recognized, both Kyrgyzstan and Tajikistan embarked on substantial overhauls of their initial approaches. The Land Code in Tajikistan  and the Law of Land Management in Kyrgyzstan were brought into line with the Convention’s Article 16 and other human rights standards. Government institutions responsible for land reform began to systematically integrate women’s needs into planning and budgeting. Awareness was raised with local officials about the link between protecting women’s rights and improving the effectiveness of services, and rural women and local governments partnered to support women’s cooperatives and village-level projects. Individual women were provided with legal advice and practical support to make their land claims. The media also became involved, widely broadcasting the message, “Land in the Right Hands!,” to support women’s equal rights. While improvements are still continuing, there is significant evidence that the process is now on a better track: between 2002 and 2008, the proportion of women owning family farms in Tajikistan rose from 2 percent to 14 percent. 

Mexico embarked upon a major transformation of its response to violence against women, with the 2007 passage of the Mexican General Law on Women’s Access to a Life Free of Violence  The law provides a comprehensive vision of government responsibility for preventing and eradicating violence against women, based on recognition of it as an extreme form of discrimination and violation of women’s human rights. Drawing strongly on CEDAW and its General Recommendation 19 as well as on the regional women’s rights treaty, the Convention Belém do Pará, the General Law defines different forms of violence against women, including femicide, and identifies the main spheres in which women are subjected to violence — the family, the workplace, education, the community and institutions. The necessary framework for ensuring proper government responses to the violence is also clarified, including directions for the revision of penal codes, the development of government policies, and establishing multi-sectoral institutional arrangements. The General Law designates a coordinating and monitoring role to the Mexican national women’s machinery and gives it responsibility for elaborating regulations to support the law’s full implementation. Changing an entire government’s approach is a huge undertaking, and cannot be accomplished overnight, especially in countries such as Mexico, which operate with a federal structure of government. But there has been significant progress: in 2009 all 32 States had adopted the law, making it fully enforceable across the country.

Two things struck me as we were working to support CEDAW’s 30th anniversary.  First, I don’t think we’ve yet grasped the full extent of the transformation that is taking place. In addition to the cases already mentioned, comparable stories can, for example, be told about the impact of Committee’s Optional Protocol decisions in Austria and in Hungary elimination of harmful traditional practices in the Cameroon, protection of reproductive health rights in Colombia, the removal of reservations to the Convention by Egypt and Jordan, local housing rights activism in Jamaica, the adoption of the Philippines Magna Carta for Women, new laws to protect women’s marriage, divorce and inheritance rights in Sierra Leone, reform to the law of evidence in the Solomon islands, and the inclusion of strong gender equality provisions in the new Thai constitution.  In fact, the list seems to extend as far as one is willing to invest in the effort of research and writing.  Which raises the fairly pressing question of when and how a more comprehensive mapping and assessment of these changes can be conducted.

Second, there has been a lot of interaction with the press around the anniversary.  And in many, though not all, cases, journalists tended to push aside descriptions of what was changing in different countries, to try to get at what they felt would be the real story – e.g. “But what’s not working? International treaties can’t really be enforced can they?  What about all those reservations? What about the fact that the United States hasn’t ratified?”  Which I found a bit strange. There’s been a great deal of reflection over the years on the difficulties in implementing CEDAW, and human rights treaties more generally.  That challenges continue to exist would seem to fall into the “dog bites man” category.  What is less expected and worth remarking upon – more in the “man bites dog” category – is that, despite it all, CEDAW appears to have been so effective in so many countries in stimulating urgently needed reforms.  Why is this happening?

Much of the answer lies in the fact that women’s rights activists around the world have been determined to take CEDAW far more seriously than their governments probably ever did when they adopted and ratified the Convention. These women have made the long-term commitment to ensure that what started out as “just a bunch of words on paper” – and what was perhaps intended by many simply to remain words on paper -- actually fulfils its promise. Jacques Ranciere’s observation in Hatred of Democracy about the power that is actually embodied in constitutional guarantees would seem to be right on the mark for understanding what has been happening with CEDAW:

“These freedoms were not the gifts of oligarchs. They were won through democratic action and are only ever guaranteed through such action. The ‘rights of man and of the citizen’ are the rights of those who make them a reality.”

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