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May 16, 2004

Protection of women under international instruments

Barrister Hassan Faruk Al Imran

UN Secretary General Kofi Annan says "violence against women is perhaps the most shameful human rights violation, and it is perhaps the most pervasive. It knows no boundaries of geography, culture or wealth. As long as it is continues, we cannot claim to be making real progress towards equality, development, and peace." According to Amnesty International at least one out of every three women has been beaten, coerced into sex, or abused in her lifetime. More than 60 million women are 'missing' from the world to day as a result of sex-selective abortions and female infanticide. Every year, millions of women are raped by parents, relatives, friends and strangers, by employers and colleagues, soldiers and members of armed groups (Amnesty International magazine, Issue 124, 2004). For these reasons the international community has been increasingly concerned about the situation of women. Several instruments have been promulgated for advancement and protection of the rights of women in many areas, such as employment (Convention Concerning Equal Remuneration for Men and Women Workers for Work of Equal Value), education (Convention Against Discrimination in Education) and political participation (Convention on the Political Rights of Women). Discrimination on the basis of sex has been observed (Declaration on the Elimination of Discrimination Against Woman) and condemned (e.g., in CEDAW, Article 2 provides: 'States Parties condemn discrimination against women in all its forms, [and] aggress to pursue … a policy of eliminating discrimination against women….'). Nonetheless, while these instruments recognised women's human rights, they have not been interpreted and enforced in a manner consistent with the vigorous protection of women that they mandate. Reanda, a feminist scholar, says "Although the principle of equality between the sexes has been enshrined in the basic human rights instruments, in practice the interpretation and implementation of these instruments has fallen far short of ensuring their full applicability to women as an oppressed and vulnerable social group." Despite the aspirations of current instruments, the development of remedies for women subjected to sex-based human rights violations is incomplete.

The international concern for protecting women against discrimination has its modern rights in the Charter of the United Nations and the Universal Declaration of Human Rights (UDHR). The U.N. Charter lists among its purposes the achievement of "international co-operation in … promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion": [Article 1(3)]. This language is repeated in Article 55, under which the United Nations is obliged to promote universal respect for non-discrimination, and relied upon in Article 56, which expressly obligates members to act in furtherance of the purposes of the Article 55. The UDHR in kind accords certain rights to men and women equally: "Everyone is entitled to all the rights and freedoms set forth in this declaration, without distinction of any kind, such as race, colour, sex…." (Article 2). Article 5 provides: No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. The Declaration further proclaims that "all are entitled equal protection of the law" (Article 7). This non-discrimination and the requirement of the equality propounded in the UDHR are staunchly supported and repeated in subsequent human rights documents, e.g., the International Convention on Civil and Political Rights.

Significantly, the UDHR not only urges the recognition of human rights but expects nations to provide a remedy when those rights have been denied. When an individual is victim of human rights violations, that person has a "right to an effective remedy by the competent national tribunals" responsible for protecting those rights (Article 8). The UDHR likewise requires access to foreign courts when domestic conditions merit it- i.e., when the individual is unable to avail himself or herself of governmental protection- by asserting that every individual is entitled to seek legal remedy, without qualification as Article 6 provides: Everyone has the right to recognition everywhere as a person before the law . Once it happens that an individual suffering human rights violations has no legal recourse in her or his own country, that person has the right "to seek and enjoy" asylum elsewhere ( Article 14(1)).

The problem of sex discrimination was recognised by these instruments, and the first major instrument to focus exclusively on the issue- the Declaration on Elimination of Discrimination against Women (DEDAW) - was built upon their foundation. Drawing from basic principles generated by the U.N. Charter, the UDHR, and other human rights instruments, DEDAW calls for "all appropriate measures" to be taken "to abolish existing laws, customs, regulations and practices which are discriminatory against women, and to establish adequate legal protection for equal rights of men and women." (Article 2). Guarantees of equal legal capacity, equal civil rights, and women's suffrage, among others, are prescribed ( Article 4, and 6 ).

Since DEDAW was non-binding and as such could not require nations to provide remedies to human rights violations against women, the Convention on the Elimination of All Forms of Discrimination Against Women ( CEDAW) was enacted to put into effect the measure necessary to extirpate sex discrimination. CEDAW not only provides for women's legal equality (Article 15(2)), but also requires states "to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women" (Article 2, and 5). CEDAW also requires that states "establish legal protection of the rights of women and ensure through competent national tribunals and other tribunals and other public institutions the effective protection of women against any act of discrimination" (Article 2).

CEDAW, like the UDHR that inspires it, mandates access to remedies in foreign courts and provides for a right to asylum. CEDAW defines sex discrimination as any sex-based distinction" which has the effect or purposes" of detracting from women's "human rights and fundamental freedoms." The full definition of sex discrimination in CEDAW encompasses "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 of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field": Article 1. Persecution of women, which by definition involves "a threat to [their] life or freedom" obviously detracts from women's human rights and fundamental freedoms. Persecution of women is therefore sex discrimination within the meaning of CEDAW and is accordingly prohibited. Discrimination against women and the persecution of women-are kindred human rights violations; the victims of sex- based persecution should be entitled to seek asylum under international law as expressed in these agreements.

Moreover, the Rome Statute of International Criminal Court (1998) states that the following acts are war crimes: rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation and certain other forms of sexual violence of comparable severity. If these acts are knowingly committed as a part of a widespread or systematic attack on a civilian population, they constitutes crimes against humanity (Article 7). In 2000 The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the UN Convention against Transitional Organised Crime, require states to protect the victims of trafficking.

In practice women are discriminated and persecuted because of women, because of their sex and gender. Moreover, women are not only discriminated within family, they are also discriminated by the State and society as well. In Pakistan if adultery allegation could be proved against women then according to 'Sharia Law' the punishment would be 'stone to death'. As a result in 'Islam and Shah' case the House of Lords of UK held that women in Pakistan, against whom the false adultery allegation was give, were discriminated and unprotected by the State, and as a result their human rights has been violated, i.e. life to live, not to be tortured. In Iran, during Khomeini's rule women were punished if they denied wearing 'Hejab'. Most recently, in Afghanistan, during the rule of Taliban, women were asked not to work. These all are examples of discrimination against women.

International Instrument's main aim is- the signatory state party should take all appropriates measures to ensure the full application of the International Human Rights Conventions and Declaration. But from the experience, we have seen in many occasions, states its-self breaches the Human Rights Conventions. Therefore, press, media and all of us should work as 'watch dog' for the full effectiveness of the International Human Rights Instruments.

Barrister Hassan Faruk Al Imran is currently studying LLM in International Law, UK.