International legal instruments for the protection of women s rights

Transcription

1 International legal instruments for the protection of women s rights Prof. Dr. Christa Tobler, LL.M. Europa Institutes of the Universities of Basel (Switzerland) and Leiden (The Netherlands) Formation continue en droits de l homme, été juin 2009, Genève Prof. Dr. Christa TOBLER, LL.M. Universities of Basel (Switzerland) and Leiden (The Netherlands) Prof. christa.tobler@unibas.ch Dr. Christa TOBLER, LL.M., r.c.tobler@law.leidenuniv.nl Universities of Basel (Switzerland) and Leiden (The Netherlands)

2 Introduction (1) The starting point: facts Binion (1995): In a world, in which women perform two-thirds of the hourly labor and receive 10 percent of the income and hold barely 1 percent of the property, disempowerment is clearly economic. In a world, in which women are more than 51 percent of the population, fewer than 5 percent of the heads of government, and fewer than 10 percent of the (lower house) parliamentarians, disempowerment is clearly political. In a world, in which it is ; acceptable, inter alia, for women to be raped by their husbands; for female detainees to be raped by the police; for women to have no access to birth control or abortion; and for women to have no unilateral freedom of movement domestically or internationally, disempowerment is clearly social. To these indicia of social inequity might also be added the practices of dowry murder, the aborting of female fetuses, the murder of female babies, and nationality law that are male determinative. Unfortunately, not much difference today. 2

3 Introduction (2) Gendered societies Societies as gendered systems. Gender as a social construct (what it means to be a man or a women in a given society). Gender and the law - important questions: Where does the law fit within women s experience, what is its role in perpetuating these gendered systems, and how might law might be a vehicle for change? Regarding human rights law in particular: By which processes are human rights are defined, adjudicated, and enforced? What about the substance of what is thereby protected? 3

4 Introduction (3) The subject-matter of this lecture The overarching issue: What is the role of international law in preventing or addressing the situation of disempowerment of women? Is there relevant international law (global, regional)? What are its contents (substance of the law)? How is it law enforced? For purposes of illustration: A case study. 4

5 Relevant international law (1) Universal law (1): The UN 1945 Charter of the United Nations 1948 Universal Declaration of Human Rights 1966 International Convention on Economic, Social and Cultural Rights (ICESCR) 1966 International Convention on Civil and Political Rights (ICCPR) 1979 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), plus an Optional Protocol 1989 Convention on the Rights of the Child 5

6 Relevant international law (2) Universal law (2): Why a specific gender focus? Recognition that general instruments are not sufficient to protect women s human rights. Existing instruments were too vague. Disregard of women s situation and perspective in their application Declaration by the General Assembly on the Elimination of Discrimination against Women. World Conferences on Women as of 1975 (Mexico) Adoption of the CEDAW. Follow up: 1995 Beijing Women s Conference, with its Platform for Action (12 critical areas of concern). 6

7 Relevant international law (4) Universal law (4): Beijing Platform for Action - 12 critical areas for concern 1. Women and poverty 2. Education and training of women 3. Women and health 4. Violence against women 5. Women and armed conflict 6. Women and the economy 7. Women in power and decision making 8. Institutional mechanisms for advancement of women 9. Human rights of women 10. Women and the media 11. Women and the environment 12. The girl child 7

8 Relevant international law (5) Universal law (4): The ILO The ILO as an UN agency aiming at social justice, decent work for all. Important instruments: 1951 Equal Remuneration Convention 1952 Maternity Protection Convention (revised in 2000); plus a Recommendation on this issue, also revised in Declaration on Equality of Opportunity and Treatment for Women Workers 1981 Convention concerning Workers with Family Responsibilities 8

9 Relevant international law (6) Regional law (1): The Council of Europe 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR): Art. 14 on non-discrimination (accessory right) Protocol no. 12 of 2000 (free standing right) 1961 European Social Charter (for workers) 9

10 Relevant international law (7) Regional law (2): The EU and the EC European Union, Art. 6 EU: Human rights as a fundamental value; explicit reference to the ECHR. European Community: Primary law (EC Treaty): Art. 2 EC: Equality between men and women as an explicit aim of the European Community. Art. 3(2) EC: Mainstreaming. Art. 141 EC: Sex equality in employment (equal pay, positive action). Secondary law: A number of directives. 10

11 Relevant international law (8) Regional law (2): Secondary EC law Sex equality directives: Directive 2006/54/EC (Recast): Employment and occupation, incl. occupational social security. Directive 79/7/EEC: Statutory social security. Directive 86/613/EEC: Self-employment. Directive 2004/113/EC: Goods and Services. Other, related directives: On various issues, including e.g. health protection of women workers, parental leave, part-time work etc. 11

12 Analysis Two guiding questions Content: Which instrument is the most far-reaching in terms of substance (content, rights granted/obligations imposed)? Enforcement: Which instrument is the strongest in terms of enforcement (protection of rights)? To be answered in relation to: UN law, ILO law Council of Europe law EC law 12

13 Enforcement (1) Universal law UN Conventions - relatively weak: Reporting system: Dialogue between the Committee in charge of the Convention and the relevant Signatory State; recommendations by the Committee. In the specific case of the CEDAW: Optional Protocol on individual communications. ILO Conventions - relatively weak: Similar to the UN Conventions (reporting system). 13

14 Enforcement (2) Regional law ECHR - comparatively strong: Individual complaints to the Court of Human Rights (Strasbourg) after exhaustion of means under national law. EC law - very sophisticated, e.g.: Indirect effect (EC conform interpretation). Direct effect of EC law, both vertical and horizontal (except in the case of directives). Right to an effective, proportionate and dissuasive remedy. Right to damages from the Member State or the EC for infringements of EC law. Enforcement actions by the European Commission. 14

15 Substance: overview Very different substantive reach Broadest: CEDAW - all areas of life, broad conception of discrimination (but: possibility of reservations). Very broad: ECHR, if used with the Optional Protocol - free standing non-discrimination right (less broad conception). Limited: EC law - employment, employment-related social security, goods and services. Very limited: ILO - employment only. 15

16 CEDAW (1) Special approach Asymmetric: Specifically about women. Substantive equality approach: Equality in practice, rather than assumed neutrality. Levels addressed: Equality/non-discrimination in national law as well as changes in society. 16

17 CEDAW (2) Six parts of the Convention Arts. 1-6: Discrimination and equality Arts. 7-9: Political and public life Arts : Economic and social life, rural women Arts : Equality before the law Arts : Monitoring, implementation Arts : Various final provisions 17

18 CEDAW (3) The concept of discrimination See text of Art. 1 CEDAW: Much more than mere equal treatment! Addresses various forms of discrimination. Direct discrimination Indirect discrimination Structural discrimination. Thus: Sophisticated concept of discrimination. Art. 4(1) - very important: Temporary special measures are not discrimination. See General Recommendation no

19 CEDAW (4) General obligations of the Signatory States Art. 2 CEDAW: To condemn discrimination in all its forms, to pursue a policy of eliminating discrimination. Art. 3 CEDAW: To take all appropriate measures, also beyond law. Art. 5 CEDAW: To engage in social engineering (modifying social and cultural patterns). Art. 6 CEDAW: To suppress trafficking in women and exploitation of prostitution. 19

20 CEDAW (5) Specific obligations in specific fields Arts. 7-9: Political and public life. Arts : Economic and social life (notably regarding education, employment, health care), rural women. Arts : Equality before the law = equal treatment of men and women, notably regarding civil matters, movement of persons, marriage and family relations. 20

21 EC law (1) The concept of discrimination General principle of equality/non-discrimination with an Aristotelian meaning, based on case law (decisions by the European Court of Justice): To treat likes alike and unlikes unalike. Specific non-discrimination provisions: Strong focus on equal treatment in the context of specific criteria (e.g. nationality, sex, sexual orientation, disability, race or ethnic origin, religion or belief, age). Different treatment usually construed as an exception to the right to equal treatment (derogation, strict interpretation, proportionality). Different forms of discrimination. 21

22 EC law (2) Forms of discrimination: Overview EC Treaty does not define discrimination, does not distinguish between different forms. ECJ case law: Distinction between direct and indirect discrimination. Most recent generation of secondary law - four forms of discrimination: Direct discrimination Indirect discrimination Harassment harassment (in the case of sex also sexual harassment) Instruction to discriminate. 22

23 EC law (3) Direct and indirect discrimination Direct discrimination, Art. 2(1)(a) Recast Directive - the obvious case: where one person is treated less favourably on grounds of sex than another is, has been or would be treated in a comparable situation. Indirect discrimination, Art. 2(1)(b) Recast Directive - the less obvious case: where an apparently neutral provision, criterion or practice would put persons of one sex at a particular disadvantage compared with persons of the other sex, unless that provision, criterion or practice is objectively justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary. 23

24 EC law (4) Harassment and sexual harassment - new discrimination concepts Harassment, Art. 2(1)(c) Recast Directive: where unwanted conduct related to the sex of a person occurs with the purpose or effect of violating the dignity of a person, and of creating an intimidating, hostile, degrading, humiliating or offensive environment. Sexual harassment, Art. 2(1)(d) Recast Directive: where any form of unwanted verbal, non-verbal or physical conduct of a sexual nature occurs, with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating or offensive environment. 24

25 EC law (5) Positive action Main provision since the Treaty revision of Amsterdam: Art. 141(4) EC - see text. [Previously: Art. 2(4) of Directive 76/207/EEC.] Important case law, though so far only on employment and vocational training: Access to employment: No automatic preference, importance of qualifications and of proportionality (Badeck, Abrahamsson). Working conditions: Importance of proportionality (Lommers). Access to vocational training: Strict quotas are possible (Badeck). 25

26 Case study Protection of women in practice Case study, based on a fictitious case. To be examined in the light of different international legal instruments. Focus on two substantive issues: Health protection of women. Women in employment (access to employment, equal pay). Plus elements of enforcement. Main aim of the exercise: Issue spotting. 26

27 Thank you for your attention! For further information Basel: Website: Leiden: Website: ropainstituut 27