The human rights of women and of the girl-child are an inalienable, integral and indivisible part of universal human rights. The full and equal participation of women in political, civil, economic, social and cultural life, at the national, regional and international levels, and the eradication of all forms of discrimination on grounds of sex are priority objectives of the international community.
VIENNA DECLARATION AND PROGRAMME OF ACTION, (part I, para. 18)adopted by the World Conference on Human Rights, Vienna,25 June 1993 (A/CONF. 157/24 (Part I), chap. III)
Introduction
Equality is the cornerstone of every democratic society which aspires to social justice and human rights. In virtually all societies and spheres of activity women are subject to inequalities in law and in fact. This situation is both caused and exacerbated by the existence of discrimination in the family, in the community and in the workplace. While causes and consequences may vary from country to country, discrimination against women is widespread. It is perpetuated by the survival of stereotypes and of traditional cultural and religious practices and beliefs detrimental to women.
The UN Convention on the elimination of all forms of discrimination against women is the principal and most comprehensive international legal instrument to advance the equal recognition, enjoyment and exercise of all human rights of women in the political, economic, social, cultural, civil and domestic fields. Furthermore, the sustainable, dynamic and non-exclusionary nature of CEDAW is emphasized as one of its most important notions, whereby its applicability is also related to forms of discrimination not explicitly identified at the time of its drafting and is consequently being continually updated to include new insights and new issues that are brought to the attention of the CEDAW Committee. The CEDAW Optional Protocol and the CEDAW Committee are identified as specific instruments, which carry extensive weight in establishing States Parties’ responsibilities for complying with obligations to which they agreed by ratifying or acceding to the Convention.
Female child marriage is a violation of child rights and explicit breaches of CRC and CEDAW, where CEDAW has clearly given protection against child marriage and sexual exploitation of female gender. There are other treaties and declarations that are relevant and these will be considered as required. It is noted at the outset that, though CEDAW expressly prohibits ‘child marriage’ at Article 16(2), the CRC does not make any such express reference to it. This does not render the protection it offers to children against child marriage any less as stated protection under Art 3, Art 19, Art 24, Art 36. CRC must be viewed as a product of its time. It was signed 20 years prior to CEDAW and its provisions are clearly more orientated to giving general rights to children as opposed to addressing specific issues such as child marriage or child soldiering. CEDAW and CRC therefore work in harmony over this issue.
Despite the fact that international treaty International Covenant on Economic, Social and Cultural Right (here after ICESCR), Article 3 states, it is upon the State parties to balance the gender equality with the right to enjoy all the economic, social and cultural rights, although it has been widely expatiated but very less seems to have been implemented within government policy which has made socio-economic rights unsustainable with the need of inhabitants to end the grave issue of poverty and inequality world wide. Non-Discrimination and Equality against women has been both protected under ICESCR, art 2(2), 3; CEDAW art 2, 3, 4, 5).
What is gender?
Gender has nothing to do with the biological differences between the sexes. It is about the socially constructed differences between the sexes, men and women. As it is socially constructed, it can be changed over time.
Situation of women
One in five women are victim of violence by the hands of their partner irrespective of caste, creed, religion etc. Almost any indicator you chose, women are statistically are at disadvantage. Women do not seem to be equal to men. Umber of boys going to school is more than girls. The blind spot of international human rights is that it does not solve problems of human rights. They remain in poverty, lack of access to food, malnutrition. There are state sponsored attempt to slow generation growth such as China and India etc. desire to have son leads to small number of girls in the world. If inequality is removed at political level then there will be more women in parliament. If men and women are equally represented in public and private sector then decision will be made by both genders rather by men only. Gender inequality is the result of practices such as man is breadwinner and woman is homemaker.
The early marriage of a female child puts them at many disadvantages of physical, intellectual, psychological and emotional impact. It also takes away the benefit of educational opportunities and chances of personal growth. Further in particularly among girls it means premature pregnancy and child bearing and will most likely to a live a life of domestic and sexual subservience over which they have no control. It has been addressed that early marriage increases a woman’s reproductive span thus an increase of family size especially if the concept of contraception is most likely to be present.
It has further informed of the risks factor of younger girls becoming pregnant while their own bodies being not fully mature can cause harm to both mother and child’s health and survival. According to (UNFA 2003) there is an increase of 100,000 girls per year who would suffer with the disability of fistulas and above 2 million girls are presently suffering the disability of fistulas leaving them with less chance of leading a normal life and bearing children. Pregnancies among younger girls also put them on the risk of being under nutrition and malnourishment. Another major factor among young girls with early marriage is the deprivation to obtain education either due to financial burden or lack of schooling facilities thus a clear violation of the rights of the child in CRC and CEDAW.
CEDAW
The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), adopted in 1979 by the UN General Assembly, is often described as an international bill of rights for women. Consisting of a preamble and 30 articles, it defines what constitutes discrimination against women and sets up an agenda for national action to end such discrimination.
The Convention 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.”
By accepting the Convention, States commit themselves to undertake a series of measures to end discrimination against women in all forms, including:
- to incorporate the principle of equality of men and women in their legal system, abolish all discriminatory laws and adopt appropriate ones prohibiting discrimination against women;
- to establish tribunals and other public institutions to ensure the effective protection of women against discrimination; and
- to ensure elimination of all acts of discrimination against women by persons, organizations or enterprises.
The Convention provides the basis for realizing equality between women and men through ensuring women’s equal access to, and equal opportunities in, political and public life — including the right to vote and to stand for election — as well as education, health and employment . States parties agree to take all appropriate measures, including legislation and temporary special measures, so that women can enjoy all their human rights and fundamental freedoms.
The Convention is the only human rights treaty which affirms the reproductive rights of women and targets culture and tradition as influential forces shaping gender roles and family relations. It affirms women’s rights to acquire, change or retain their nationality and the nationality of their children. States parties also agree to take appropriate measures against all forms of traffic in women and exploitation of women.
Countries that have ratified or acceded to the Convention are legally bound to put its provisions into practice. They are also committed to submit national reports, at least every four years, on measures they have taken to comply with their treaty obligations. US still has not ratified CEDAW.
Reservation
Several states have reservation regarding CEDAW such as Islamic states say that it is inconsistent with Sharia law i.e. Bangladesh. Reservation recognized valid if it does not defeat the purpose of treaty.
One of the earliest significant sets of reservations to CEDAW was entered by Bangladesh upon its accession in 1984. Bangladesh reserved Articles 13(a), (1)(c) and (f), 19 and Article 2, which requires examination of constitutions, laws, and policies and the enactment of a legislative and administrative framework to implement the Convention. Bangladesh withdrew the reservations to Articles 13(a) and 16 (1)(f) in 1997 but has not withdrawn the Article 2 or 16 (1) (c) reservation.
Positive action
One of the significant aspect of advancing women rights is connected with state obligation. To respect the rights of others and to create a mechanism for women right advancement. CEDAW has specific provision which says that state take positive action to eliminate historic inequality
Reproductive rights
Some argue that women should have access to abortion. They say that failure to abortion have assault on women right and leads to criminalization. But other are of the view that right to life apply to fetus. In France, women are allowed to have access to abortion services in some circumstances. CEDAW has not clearly provided about access to abortion services.
Optional protocol to the Convention on the Elimination of All Forms of Discrimination against Women
The Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women is a side-agreement to the Convention which allows its parties to recognise the competence of the Committee on the Elimination of Discrimination against Women to consider complaints from individuals.
Perhaps the most dramatic advance in establishing the States Parties’ responsibility for violation of human rights of women and states’ obligations under the so called Women’s Convention was the adoption of an Optional Protocol. The CEDAW Optional Protocol19 was adopted by the UN General Assembly in 1999, twenty years after the adoption of the Convention. It entered into force in December 2000. Currently it has 80 signatories and 104 parties.
Cases Laws
Vishaka V. State of Rajasthan
In this case, the Indian Supreme Court relied on constitutional gender equality norms interpreted in light of CEDAW General Recommendation no.19 to fashion a right to freedom from sexual harassment at work.
Jessica Lenahan v. United States
In this case, the Inter-American Commission on Human Rights held that the United States had failed to act with due diligence to protect Lenahan and her children from domestic violence and failed to provide equal protection before the law.
Opuz v. Turkey
The European Court of Human Rights held that the failure, stretching over a number of years, to take action against the applicant’s husband violated not only the right to life and the right to equal protection but also the right to be free from cruel and inhuman treatment.
Weakness
The rights of women are still being violated in the Arab countries of Middle East and North Africa (MENA), despite their ratification of the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW). This article addresses the challenges facing the attainment of gender equality in this region, arguing not only that culture plays a major role in determining this inferior status of women, but also that the ratification of CEDAW did not bring any qualitative change because of the weakness of this legal instrument per se, and because of the numerous reservations placed by the Arab (MENA) states on it.
The nature of the reservations suggests that some states currently do not accept all aspects of non-discrimination norms however they do not wish to remove themselves entirely from the conversation. The greater proportion of substantive reservation to CEDAW has been entered by State parties that cite Sharia (a) as a basis to all state law, (b) as regulating matters of personal status such as (marriage, divorce, custody, guardianship, adoption and inheritance.)
Conclusion
The Convention on the Elimination of All Forms of Discrimination Against Women is a treaty for all girls and women in this world. After 30 years it is still valid and necessary both in developed and in developing States. This image is clearly conveyed by the authors of this book, who represent a wide variety of national and cultural backgrounds, and who have put the implementation of the provisions in the Convention to the test both in modern and in traditional societies. In addition, some chapters pay attention to issues that are not contained in the treaty itself but that greatly impact the realization of women’s human rights, such as gender mainstreaming, gender-based violence, and corruption. The strengths and weaknesses, and the future potential of the Convention as well as the work of its monitoring body are critically analysed and compared to other human rights treaties and organs. It becomes clear that, irrespective of the existing flaws, the Convention is the best option for achieving women’s equality.
