I. The international legal framework for gender justice

Transcription

1 I. The international legal framework for gender justice (a) The 2eneral human ri2hts framework Treaties United Nations Charter, 1945 Universal Declaration of Human Rights, 1948 International Covenant on Economic, Social and Cultural Rights, 1966 International Covenant on Civil and Political Rights, 1966 Other human rights treaties Non-conventional human ri2hts mechanisms Commission on Human Rights Special procedures mandate holders (b) Women-snecific human ri2hts framework Commission on the Status of Women, created in 1946, to consider and make policy recommendations to improve the status of women Convention on the Political Rights of Women, 1952 Convention on the Nationality of Married Women, 1957 Convention on Consent to MaITiage, Minimum Age for Marriage and Registration of Marriages, 1962 Declaration on the Elimination of Discrimination against Women, 1967 Convention on the Elimination of All Forms of Discrimination against Women, 1979 Declaration on the Elimination of Violence against Women, 1993 Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women, 1999 Mandate of Special Rapporteur of the Commission on Human Rights on Violence against Women, its causes and consequences, created in 1994 II. The substance of the Convention..; Part I: Articles 1 to 6.. Articles 1 t~"6 ~f- C~nvention provide a definition of discriinination, and identify the obligations of States parties to eliminate discrimination. These include constitutional, legislative and other measures, including temporary special measures, such as affirmative action, modification of social and cultural patterns of conduct of men and women based on sex role stereotyping. and suppression of traffic in women and the exploitation of prostitution. ; ~art II: Articles 7 to 9 States parties undertake to protect women's rights in public and political life, and to grant women equal rights with men with respecto their nationality and that of their children.

2 Part III: Articles 10 to 14 States parties make commitments to eliminate discrimination in education, employment, health, economic, social and cultural rights. States also undertake obligations to eliminate discrimination against rural women. Part IV: Articles 15 and 16 States parties agree to accord women equality with men before the law, in the exercise oflega! rights and in marriage and family law. III. Gender-based violence in intemationallaw General Recommendation 19 of the Committee on the Elimination of Discrimination against Women, 1992 Declaration on the Elimination of Violence against Women, 1993 Vienna Declaration and Programme of Action, 1993 The Beijing Declaration and Platfonn for Action, 1995 The Rome Statute of the International Criminal Court, 1998 The Palenno Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, 2000 IV. Progress so far Report of Ms. Radhika Coomeraswamy, Special Rapporteur on violence against women, its causes and consequences, on developments in the area of violence against women since 1994 (FlCN.4/2003nS): 'Despite these successes in awareness-raising and standard-setting, very little has changed in the lives of most women. A few women have benefited from these changes, but for the vast majority violence against women remains a taboo issue, invisible in society and a shameful fact of life. Statistics continue to show high rates of violence and abuse. Most cases of violence against women result in impunity for the perpetrators, which fuels the perpetuation of this grave violation. More must be done to provide equal access to effective judicial protection and guarantees.' v. Tools for change. The reoortin2 orocedure: article 18 of the Convention States parties undertake to submit reports on implementation of the Convention within one year after its entry into force for the State concerned, and thereafter every four years and further when the Committee requests Reports should indicate the legislative, judicial, administrative or other measures that they have adopted to give effect to the provisions of the Convention, describe progress made and identify factors and difficulties affecting the extent to which the Convention's obligations have been met. The key purpose of reporting is to promote compliance by States parties with the Convention.

3 Drafting of the report provides an opportunity for the State party to clarify its obligations under the Convention and take stock of the current situation of women and identify areas that require reform to ensure full compliance with the Convention. Y" Consultations required within government structures and between Government and civil society in order to prepare a good report can in1prove understanding of the Convention and the objectives of human rights generally;./publicity surrounding the preparation of a report draws attention to the level of the State's compliance with its obligations and the ways individuals and groups can further contribute to their implementation;./ Consideration of the report by the Committee allows for dialogue between the State party and a group of impartial and highly experienced experts during which areas where further implementation is required can be identified, and suggestions for improvement proposed; ~Reporting highlights good practices and lessons learned which may be drawn on by other States as they seek to implement the treaty; ""The outcome of the procedure, the Committee's concluding comments constitute an authoritative guide for future legislation, policies and programmes. Although directed at the State party, they can be used by other stakeholders to encourage accelerated implementation and a culture of human rights in the State party.. ~e communications DroceQ~ The Optional Protocol to the Convention entitles individuals or groups of individuals to submit claims of violations of violations of any of the rights in the Convention to the Committee. Communications may also be submitted on behalf of complainants, with their consent, or witho~t consent where the author of the communication can justify acting ".. without consent. '" Communications may only be brought against States which are party to the Convention and the Optional Protocol; '" All available domestic remedies must be exhausted. The Committee may request the State party to implement interim measures to avoid irreparable ham to the complaint. Interim measures do not prejudge the admissibility or merits of the claim. Following consideration of admissible communications, the Committee adopts 'views.' The Optional Protocol outlines various procedures for follow-up to views.

4 There has been limited use of communications procedures to vindicate claims in the area of gender-based violence: see however AS v Sweden (CAT/C/D/149/1999) where the Committee against Torture concluded that a State party has an obligation to refrain forcibly returning a woman to her country of origin where she was likely to face torture for the crime of adultery.. InQUirv Drocedur~ The Committee may inquire of its own motion into reliable information indicating grave or systematic violations of the rights in the Convention in the State party in cases where the State concerned has accepted" the Convention and the Optional Protocol. States parties may 'opt-out' of the inquiry procedure when accepting the Optional Protocol. Two States have chosen this option. It should be noted that CEDA W has conducted one inquiry which concerned gender-based violence in the Juarez region of Mexico. VI. Impact of international procedures on violence against women. In 1997, in Vishaka and others v the State of Rajasthan in case of alleged gang-rape of a Government social worker who had been campaigning against child marriage, and the failure of officials to investigate her complaint, the Supreme Court of India recalled that India had ratified the Convention and that it was obliged to take all appropriate measures to eliminate discrimination against women in the field of employment and adopt all necessary measures at the national level aimed at achieving the full realization of the rights in the Convention. The Court drew on the provisions of the Convention and general recommendation 19 to establish guidelines and norms to be observed in all workplaces to prevent and address sexual harassment.. In Turkey domestic violence legislation was introduced shortly after CEDA W's consideration of Turkey's report in In 1999, the Supreme Court of Canada, in R v Ewanchuk, drew on this Convention. and the Committee's general recommendation 19 on violence against. women to conclude that violence against women is as much a matter.of equality as it is an offence against human dignity and a violation of'" human rights, and that stereotypical attitudes about the nature of sexual assault have created the myth that women are sexually available unless they resist.. In 1ne State v Geoffrey Baloyi decided in 1999, the Constitutional Court of South Africa considered the constitutionality of section 3(5) of the 1993 Prevention of Family Violence Act which provided that a person charged with breaching a family violence interdict was required to prove his innocence. Drawing on the Universal Declaration of Human Rights, the Declaration on the Elimination Violence against Women and the Convention, which it noted imposed positive obligations on States to pursue policies of eliminating discrimination against women by, inter alia, adopting legislation and other means which prohibit discrimination, the Court held that the provision was

5 constitutional as was necessary to ensure the right to equality and nondiscrimination in a context of the gross denial of human rights resulting from previous domestic violence. VII. Strategies for change. Capacity building for national actors: OHCHR's training workshops on strengthening the implementation of human rights treaty body recommendations through the enhancement of national protection mechanisms. Action 2. Judicial capacity building: the model of the judicial colloquium