WOMEN'S HUMAN RIGHTS: LEADING INTERNATIONAL AND NATIONAL CASES

Transcription

1 A WOMEN'S HUMAN RIGHTS: LEADING INTERNATIONAL AND NATIONAL CASES Published by the Commonwealth Secretariat Prepared in collaboration with the Centre for Comparative and Public Law, University of Hong Kong Edited by Robyn Emerton, Kirstine Adams, Andrew Byrnes and Jane Connors April 2005 Cavendish Publishing Limited London Sydney Portland, Oregon

2 TABLE OF CONTENTS Foreword. Hi Copyright acknowledgments vii Table of Contents ix Introduction xiii Guide to On-line Resources xlv Table of Cases xlvii Table of National Legislation by Country Ixix Table of European Community Legislation Ixxxv Table of General Recommendations of the UN Treaty Bodies Ixxxvii Table of Treaties and Other International Instruments Ixxxix A USE OF INTERNATIONAL NORMS BY NATIONAL COURTS 1 INTERNATIONAL OBLIGATIONS AS A GUIDE TO CONSTITUTIONAL INTERPRETATION 1 Minister of Home Affairs and Another v Fisher and Another (Privy Council, 14 May 1979) 3 2 Vishaka and Others v State ofrajasthan and Others (Supreme Court of India, 13 August 1997) 11 3 Longwe v Intercontinental Hotels (High Court of Zambia, 4 November 1992) 20 INTERNATIONAL OBLIGATIONS AS A GUIDE TO STATUTORY INTERPRETATION 4 Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (High Court of Australia, 7 April 1995) 33 B STATE RESPONSIBILITY UNDER INTERNATIONAL LAW FOR VIOLATIONS OF THE HUMAN RIGHTS OF WOMEN 65 5 Aireyv Ireland (European Court of Human Rights, 9 October 1979) 67 6 XandYvThe Netherlands (European Court of Human Rights, 26 March 1985)81 7 Velasquez Rodriguez v State of Honduras (Inter-American Court of Human Rights, 29 July 1988) 91 C CONCEPTS OF DISCRIMINATION 119 GENERAL 8 Andrews v Law Society of British Columbia (Supreme Court of Canada, 2 February 1989) 121 AFFIRMATIVE ACTION/TEMPORARY SPECIAL MEASURES 9 Re Municipal Officers Association of Australia (Australian Industrial Relations Commission, 6 February 1991) Kalanke v Freie Hansestadt Bremen (European Court of Justice, 17 October 1995) 159 D RIGHTS RELATING TO MARRIAGE 177 RIGHT FREELY TO CHOOSE ONE'S SPOUSE 11 Ghaled v United Arab Emirates (United Nations Commission on Human Rights, Working Group on Arbitrary Detention, 11 July 1997) Humaira Mehmood v SHO PS North Cantt (High Court, Pakistan, 18 February 1999) A S v Sweden (United Nations Committee against Torture, 15 February 2001) 203

3 International Women's Human Rights RIGHT TO EQUALITY IN MARRIAGE AND THE FAMILY 14 Ato del Avellanal v Peru (United Nations Human Rights Committee, 28 October 1988) Morales de Sierra v Guatemala (Inter-American Commission on Human Rights, 19 January 2001) 222 RIGHT TO MAINTENANCE ON DIVORCE 16 Mohammad Ahmed Khan v Shah Bano (Supreme Court of India, 23 April 1985) 245 E RIGHTS AS A MEMBER OF A MINORITY Lovelace v Canada (United Nations Human Rights Committee, - 30 July 1981) 261 F RIGHT TO RESPECT FOR FAMILY LIFE Marckx v Belgium (European Court of Human Rights, 13 June 1979) Johnston and Others v Ireland (European Court of Human Rights, 18 December 1986) Kroon and Others v The Netherlands (European Court of Human Rights, 27 October 1994) Nawakwi v Attorney General of Zambia (High Court of Zambia, 24 June 1991) 340 G REPRODUCTIVE RIGHTS Paton v United Kingdom (European Commission of Human Rights, 13 May 1980) Briiggemann and Scheuten v Federal Republic of Germany (European Commission of Human Rights, 12 July 1977) Open Door Counselling Ltd and Dublin Well Woman Centre Ltd v Ireland (European Court of Human Rights, 29 October 1992) 375 H RIGHT TO EQUALITY AND NON-DISCRIMINATION IN EMPLOYMENT 411 ACCESS TO EMPLOYMENT 25 Kreil v Bundesrepublik Deutschland (European Court of Justice, 11 January 2000), 413 DISCRIMINATION ON THE BASIS OF PREGNANCY 26 Brown v Rentokil (European Court of Justice, 28 November 1996) 420 ENTITLEMENT TO BENEFITS 27 Brooks and Others v Canada Safeway Limited (Supreme Court of Canada, 4 May 1989) Abdoulaye and Others v Regie Nationale des Usines Renault SA (European Court of Justice, 16 September 1999) 446 SEXUAL HARASSMENT 29 Janzen and Govereau v Platy Enterprises Ltd (Supreme Court of Canada, 4 May 1989) H v E (Equal Opportunities Tribunal, New Zealand, 19 September 1985) 475

4 Table of Contents AGE OF RETIREMENT 31 Rina Bajracharya v HM Government Secretariat of the Council of Ministers and Others (Supreme Court of Nepal, 8 June 2000) 492 I J RIGHT TO EQUALITY IN THE ENJOYMENT OF OTHER ECONOMIC AND SOCIAL RIGHTS AND ACCESS TO ECONOMIC RESOURCES 499 SOCIAL SECURITY BENEFITS 32 Zwaan de Vries v The Netherlands (United Nations Human Rights Committee, 9 April 1987) Vos v The Netherlands (United Nations Human Rights Committee, 29 March 1988) Schuler-Zgraggen v Switzerland (European Court of Human Rights, 24 June 1993) 521 RIGHTS TO LAND AND INHERITANCE 35 Ephrahim v Pastory and Kaizilege (High Court of Tanzania, 22 February 1990) 538 EQUALITY AND NON-DISCRIMINATION IN RELATION TO CITIZENSHIP, NATIONALITY AND IMMIGRATION 551 NATIONALITY 36 Proposed Amendments to the Naturalization Provisions of the Constitution of Costa Rica (Inter-American Court of Human Rights, 19 January 1984) 553 TRANSMISSION OF CITIZENSHIP TO CHILDREN 37 Attorney General of Botswana v Dow (Court of Appeal, Botswana, 3 July 1992) 572 DISCRIMINATION BETWEEN MEN AND WOMEN IN RELATION TO THE IMMIGRATION STATUS OF SPOUSES AND PARTNERS 38 Aumeeruddy-Cziffra and Others v Mauritius (United Nations Human Rights Committee, 9 April 1981) Abdulaziz, Cabales and Balkandali v United Kingdom (European Court of Human Rights, 28 May 1985) Rattigan and Others v The Chief Immigration Officer and Others (Supreme Court of Zimbabwe, 13 June 1994) Salem v Chief Immigration Officer (Supreme Court of Zimbabwe, 8 November 1994) 659 RIGHT TO ASYLUM AND REFUGEE STATUS 42 Islam v Secretary of State for the Home Department; R v Immigration Appeal Tribunal and another, ex parte Shah (Consolidated Appeals) (House of Lords, 25 March 1999) 664 K RIGHT NOT TO BE SUBJECTED TO VIOLENCE 689 EQUALITY AND DISCRIMINATION IN RELATION TO CRIMINAL LAW AND PROCEDURE 43 RvR (Rape: Marital Exemption) (House of Lords, 23 October 1991) State vd and Another (High Court of Namibia, 4 October 1991) Sofia Bibi v State (Federal Shariat Court of Pakistan, 13 December 1983) 707

5 xii International Women's Human Rights VIOLENCE AGAINST WOMEN AS TORTURE, OR CRUEL, INHUMAN OR DEGRADING TREATMENT 46 Mejia v Peru (Inter-American Commission on Human Rights, 1 March 1996) 713 VIOLENCE BY PRIVATE ACTORS 47 Fernandes v Brazil (Inter-American Commission on Human Rights, 16 April 2001) 740 Subject-Matter Index 761