Advancing the Human Rights of Women: Using International Human Rights Standards in Domestic Litigation - (Papers and Statements from the Asia/South Pacific Regional Judicial Colloquium, Hong Kong, 20-22 May 1996)

The Hon Justice Desiree Bernard, CCH,
Court of Appeal, Guyana*

In November 1979 when the General Assembly of the United Nations adopted the Convention on the Elimination of All Forms of Discrimination against Women (the Women's Convention),¹ the Convention became the springboard which catapulted women's rights into the rarefied atmosphere of human rights guaranteed to all human beings under the Universal Declaration of Human Rights (the Universal Declaration),² and which affirms everyone's entitlement to all rights and freedoms without distinction of any kind including distinction based on sex.

In order to monitor progress made by States parties in the implementation of the Women's Convention, a Committee on the Elimination of Discrimination against Women (CEDAW) was established in 1982 comprising twenty-three experts of "high moral standing and competence in the fields covered by the Convention", and elected by States parties to serve in their personal capacities, consideration being given to equitable geographical distribution.³ The Women's Convention requires States parties to submit reports periodically to CEDAW indicating measures adopted to give effect to the provisions of the Convention— an initial report within one year after ratification or accession and thereafter every four years or whenever CEDAW so requests.⁴

In carrying out its mandate under the Women's Convention, CEDAW endeavours to enter into constructive dialogue with States parties when considering their reports. The formula used is one of posing questions to a State party's representative or making comments, in order to elicit answers which may clarify or elucidate information contained in the report or supplement the presentation of the representative in introducing the report. Members of CEDAW encourage States parties to be frank and open in their reports and presentations, and very often commend States parties whose reports seek to present the true position

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of the status of women in their countries, rather than paint a glowing picture which is very often misleading.

The main thrust of the Women's Convention is aimed at eliminating all forms of discrimination encountered by women in all areas affecting their lives, and a perusal of the relevant articles attests to this. It urges States parties to embody the principle of equality in their national constitutions or other instruments and to adopt appropriate legislative measures prohibiting discrimination against women, and even special temporary measures if necessary, to ensure their full development and advancement in all areas.⁵ States parties are also enjoined to modify social and cultural patterns of conduct with a view to eliminating prejudices and customary practices based on stereotyped roles for men and women as well as to take appropriate measures to suppress all forms of traffic in women including exploitation of prostitution.⁶ The involvement of women in the political and public life of their countries is also addressed, including their right to vote and participate in national elections and represent their governments at the international level.⁷ Certain specific aspects of life are highlighted, e.g., equal rights to acquire, change or retain their nationality and that of their children; equal rights to all forms of education; equal rights in the field of employment, including equal remuneration in respect of work of equal value, the provision of social support services and benefits; equal rights to health care and access to family planning services; equal rights before the law and in respect of all matters relating to marriage and the family including the same rights to ownership of matrimonial property.⁸ The rights of rural women are given special attention in order to ensure to them equal development with other women.⁹

Although reservations can be made by States parties to any of the articles of Women's Convention, a reservation which is incompatible with "the object and purpose of the Convention" is not permitted.¹⁰ Over the years, CEDAW has consistently urged States parties to withdraw reservations which effectively destroy the whole basis of the Convention, and in some instances reservations have been withdrawn.

The focus of this paper is on the issues of nationality, custom, culture and the rights of the girl-child and ways in which the Women's Convention can be used to address them. I shall address each issue separately by examining the relevant article of the Convention and its implications.

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In its simplest form the nationality of a person is determined by his or her place of birth. If one is born within the boundaries of a particular country, one ought to be regarded as a citizen or national of that country. One's nationality can also be determined by the nationality of one's parents, either of them, or by choice. However acquired, it is an inalienable human right to which everyone is entitled. It is guaranteed under the Universal Declaration.¹¹ No one ought to be stateless, and every legal means must be pursued to safeguard this right. Further, States must ensure to every citizen protection from arbitrary withdrawal of his or her nationality within their legal framework. This is also guaranteed under the Universal Declaration.¹²

The Women's Convention accords to women equal rights with men in respect of their nationality and that of their children. Article 9 provides as follows:

Experience has shown that equal treatment is not always accorded women in the conferring of their nationality on foreigners whom they marry. The nationality laws of many countries do not permit the foreign husbands of female nationals to acquire their nationality in the same way as the foreign wives of male nationals. Similarly, even though all children born during a marriage automatically acquire the nationality of their fathers, in some countries children born to a foreign mother do not acquire her nationality. In some countries, laws governing change of nationality are also different for males and females.

This discrimination is not confined only to countries where women are subjugated to an inferior status in all aspects of life, but is also evident in countries which are committed to eliminating discrimination against women. Reports of States parties examined by CEDAW consistently reflect discrimination in the conferring of nationality on foreign spouses and children by male and female nationals. Concerns are expressed repeatedly by CEDAW when States parties report on article 9.

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Some States have, upon ratification or accession to the Women's Convention, entered reservations to article 9. In a few instances, they expressed the intention to withdraw the reservation upon amendment of their relevant domestic law;¹³ in others the State party was of the view that article 9 contravened the express provisions of its domestic law on nationality. Under the nationality laws of some States, a female national can transmit her nationality to her children only if the father's nationality is unknown, if he is stateless, or if the paternity of the child or children has not been established.¹⁴ Under the laws of other States, the alien husband of a female national can only acquire her nationality through naturalisation, but the alien wife of a male national may acquire his nationality by benefit of law, by submitting an application in due form and establishing residence for a specified period of time.¹⁵

It has been contended justifiably that a reservation entered to any of the articles of the Women's Convention which seek to remove discrimination suffered by women is incompatible with article 2 and renders ratification or accession nugatory, as upon such ratification or accession, States parties undertake to adopt appropriate legislative measures to eliminate all forms of discrimination against women and to modify or abolish existing laws which constitute such discrimination. I submit that article 2 is the core of Women's Convention around which all obligations of States parties are centred, and non-compliance with article 2 flies in the teeth of the whole spirit of the Convention. It is hoped that all reservations entered to articles of Women's Convention will be withdrawn in the immediate future. The States parties that have already done so must be commended.

At its thirteenth session in 1994, CEDAW adopted General recommendation No 21 in respect of articles 9, 15 and 16, having regard to the fact that 1994 was designated by the General Assembly as International Year of the Family and that those articles have special significance for the status of women in the family.¹⁶ I set out hereunder the comment made by CEDAW on article 9:

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The recommendation following the above comment was that in their reports, States parties should "set out whether their laws comply with the principles of articles 9, 15 and 16 and where, by reason of religious or private law or custom, compliance with the law or with the Convention is impeded."¹⁸ It was also recommended that States parties, in order to comply with these articles of the Convention, should enact and enforce legislation. ¹⁹

Recommendations are made by CEDAW in accordance with article 21 of Women's Convention. They are based on the assessment and evaluation of reports considered by CEDAW. It is hoped that they are regarded as being made constructively and not critically, and that States parties will see it fit to implement these recommendations in the interest of improving the status of the women in their countries.

In many countries of the developed and developing worlds, traditional customs, deep-rooted cultural mores, and religious beliefs influence and inhibit women's full integration into the mainstream of development and their advancement in all fields of endeavour, even when all legislative measures have been put in place to eliminate discrimination. Articles 2(f) and 5(a) of Women's Convention expressly mandate States parties as follows:

Social norms based on customary, cultural and religious beliefs are not changed or eradicated easily, being rooted in centuries of tradition and

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an inherited value system. The mores of a nation can be traced, in some instances to the beginning of its civilisation and handed down from generation to generation. Reversing these customs and beliefs can be traumatic, and cannot be achieved overnight or in the short term. Change has to be gradual and brought about by reeducation and acceptance of new values, while preserving the positive aspects of a nation's culture.

An often cited example of a traditional practice which is regarded as being prejudicial and injurious to a woman's health, apart from emphasising her inferiority to men, is female genital mutilation. Generally children and young girls are the victims of this practice, the objective being to preserve virginity and suppress sexuality, thereby ensuring fidelity to their male partners. In carrying out the practice, certain parts of the female genitalia are excised, resulting in excruciating pain and consequential complications, such as infections and haemorrhages. Women as children and adolescents throughout history have been victims of this practice, mainly in the countries of Africa, Middle East and Asia, and have accepted it without flinching as part of the process of becoming a woman. Custom and culture dictate that they submit to the excision without question. Similarly, women have also suffered as a result of the traditional practice of the payment of dowry, which if inadequate may lead to the death of a young bride.

However, in recent years, women in the countries where these practices are carried out have been raising their voices loudly and clearly in campaigns aimed at eradicating them. The effect has been that in some countries, legislation has been enacted prohibiting the practices with criminal sanctions. Education programmes have been launched to inform the public of the consequences of such practices.

Articles 2(f) and 5(a) of Women's Convention constitute a two-pronged attack on customs and practices which discriminate against women. Under article 2(f), States parties undertake "to take all appropriate measures, including legislation" to modify or abolish these practices. This involves the use of the legislative process as a means of eradicating traditional practices, and will apply to States that have no or no adequate legislation aimed at this objective. Of course, their efforts in this regard ought not to be confined to legislation, but should embrace all measures which will result in the abolition of customs and practices that discriminate against women.

The main thrust of article 5(a) is directed at "the social and cultural patterns of conduct of men and women", based on the inferiority of women and the superiority of men and which in turn result in stereotyped gender roles. This suggests that States parties should seek to change attitudes by the educational process, particularly in the context of the family, having regard to article 5(b) which emphasises family education and shared parental responsibility.

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The practice has developed within CEDAW, when examining reports, of seeking information from States parties on traditional practices under article 12, which addresses the health concerns of women, since the effects of a traditional practice such as genital mutilation affects adversely the health of girls, adolescents and women. At the ninth session of CEDAW in 1990, after noting the studies of the Special Rapporteur on Traditional Practices affecting the Health of Women and Children²⁰ and the Working Group on Traditional Practices,²¹ CEDAW, being gravely concerned "that there are continuing cultural, traditional and economic pressures which help to perpetuate harmful practices, such as female circumcision",²² adopted the following recommendation:

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The term "genital mutilation" is now used to include any traditional practice involving the genitalia of females, and therefore the General recommendation must be taken to include all forms of genital mutilation and not be confined only to female circumcision.

Reference is made in the recommendation to article 10 of Women's Convention, which addresses the educational needs of women, but more specifically to article 10(c) which exhorts States parties to take appropriate measures to eliminate any stereotyped concept of the roles of men and women at all levels and in all forms of education, and it is in this regard that General Recommendation No 14 recommends that States parties to include in their reports, under articles 10 and 12, information on measures taken to eliminate female circumcision.²³ This is a recognition by CEDAW that the eradication of harmful traditional practices based on customary and cultural norms which give rise to gender-role stereotyping can only be successfully achieved by a reformation of values, both in the formal and informal education system.

So far, discussion has centred mainly on the traditional practice of genital mutilation based on custom and culture, but it can also be classified as an act of violence and a breach of women's human rights. The Women's Convention does not specifically address the issue of violence in any of its articles, unlike the Convention on the Rights of the Child.²⁴ However, CEDAW, when examining States parties' reports, has consistently sought information on violence under articles 2, 3, 5, 6, 11, 12, 14 and 16.

Articles 2 and 3 are of a general nature and exhort States parties to adopt appropriate measures to eliminate all forms of discrimination encountered by women in all aspects of their lives. Consequently, violence of any kind suffered by women is a form of discrimination when perpetrated by men in pursuance of their stereotyped superior roles. Attention has already been directed to article 5. Article 6 addresses the problem of traffic in women and exploitation of prostitution, and it is a notoriously accepted fact that women involved in the world's oldest profession are easy targets of violence.

Article 11 seeks to eliminate discrimination against women in the field of employment, and recognises the right to work as an inalienable right of all human beings. Therefore, any act which seeks to interfere

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with or disrupt the enjoyment of this right can be regarded as discrimination against women if perpetrated by men in positions of authority or in positions where they can adversely affect a woman's advancement in the workplace. I am referring specifically to the ever-increasing problem of sexual harassment, which includes unwelcome physical contact and advances, or sexual acts or demands.

Reference has already been made to article 12, which addresses the health concerns of women. The problems faced by rural women are not dissimilar from those encountered by women generally, including being victims of violent behaviour. Although article 14 concerns itself primarily with enhancing the contributions rural women can make to their economic development and that of their communities, it also seeks to ensure that all of the provisions of Women's Convention are applicable to them.

The highest incidence of violence perpetrated against women occurs in the home and within the bosom of the family. Therefore, article 16 forms a convenient springboard to launch an attack on discrimination resulting from abuses committed against women within the family.

The concerns of CEDAW about the pervasive scourge of violence, after an examination of reports of States parties from all geographical regions over a period of ten years, were expressed first in General recommendation No 12 (adopted at its eighth session in 1989),²⁵ and in General recommendation No 19 (adopted at its eleventh session in 1992).²⁶ The CEDAW concluded that "not all the reports of States parties adequately reflected the close connection between discrimination against women, gender-based violence, and violations of human rights and fundamental freedoms."²⁷ After a detailed commentary on the specific articles mentioned earlier, a multi-faceted recommendation was adopted which inter alia urged States parties to identify in their reports the nature and extent of attitudes, customs and practices that perpetuate violence against women, and the measures taken to overcome violence, including all available data on the incidence of such violence.

To date, a few States parties have entered reservations to articles 2(f) and 5(a), and various reasons have been advanced for doing so. The reservation entered by the Government of the Cook Islands through the Government of New Zealand is based on the fact that customs governing inheritance of certain Cook Islands chief titles may be inconsistent with the Women's Convention.²⁸ The main concern here seems to be a

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question of inheritance based on custom and compliance with the relevant articles of the Convention may affect the titles of certain chiefs.The Arab Republic of Egypt entered a reservation to the whole of article 2, but the State party expressed willingness to comply with the content of the article, provided that such compliance does not run counter to the Islamic Shariah.²⁹

The Government of Iraq also entered a reservation to article 2,³⁰but it did not expressly base the reservation on an inconsistency with the Islamic Shariah.

The reservation of the government of the United Kingdom of Great Britain and Northern Ireland to article 2 was based on the fact that substantial progress had already been achieved in the United Kingdom in promoting the elimination of discrimination.³¹ It reserved the right to give effect to articles 2(f) and 2(g) by keeping under review such of its laws as may still embody significant differences in treatment between men and women. It also reserved the right to continue to apply its laws relating to sexual offences and prostitution.

As stated earlier, it is hoped that in the immediate future, the States parties will see fit to withdraw the reservations in order to ensure full development and advancement of women's rights.

One cannot conclude a discussion on the issue of violence against women without mentioning the United Nations Declaration on the Elimination of Violence against Women (the Violence Declaration, adopted by the General Assembly in December 1993.³² It urges States to condemn violence against women and not to invoke any custom, tradition or religious consideration to avoid their obligations with respect to its elimination, and inter alia to consider where they have not yet done so, ratifying or acceding to the Women's Convention or withdrawing reservations made to its articles.³³ The Declaration can be regarded as the most significant effort to combat violence against women, and one hopes that States will pay heed to its provisions even though they are merely declaratory.

There are no separate provisions in the Women's' Convention for girls. As a whole, it applies equally to all females regardless of age. Protection is also afforded to girls under the Convention on the Rights of the Child, which applies to all children up to the age of eighteen years.³⁴ However,

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in spite of these international treaties which are ratified and acceded to with alacrity by the member States of the United Nations, discrimination against children of the female sex persists. In some instances, the discrimination begins even before birth, and if one is fortunate enough to be born, the discrimination continues into adulthood.

Custom and culture in certain communities dictate that girls be relegated to a secondary role to boys. They are not regarded as an asset to the family. Hence, pregnant women seek ways of determining the sex of a foetus. If found to be a girl, the pregnancy is terminated. Upon birth, death is the inevitable consequence for a girl-baby. In the likely event that her life is spared, her future is grim. Her sole-perceived role in life is to reproduce and to minister to the needs of her male partner and family. In some societies, as mentioned earlier, she is prepared for womanhood by circumcision. Educating a girl is regarded as being unnecessary, and she may, if fortunate, be given only an elementary education. Inevitably, she drops out of school to care for younger siblings or to assist her parents with household chores. At an early adolescent age, a marriage is arranged for her, and she continues to minister to the needs of her own family. Her health is usually neglected, as a result of which her life expectancy is shortened, or she is beset with illnesses of a varied nature.

There are instances world-wide where girls are sold into slavery, either to satisfy debts or to relieve the financial position of her family. This slavery can result in either sexual or economic exploitation or both. They are forced into prostitution or employed ostensibly as domestics in affluent households, with paltry wages for endless hours of work, in addition to being sexually abused by their male employers. Other forms of discrimination encountered by girls include deprivation of their rights to inherit and succeed to their parents' estate, abandonment if disabled or incapacitated, employment in family enterprises with no wages, and diminished food allocations.

Article 10 of the Women's Convention seeks to eliminate the discrimination suffered by girls in the field of education, from pre-school to university, by urging States parties to take all appropriate measures to ensure the same conditions for career and vocational guidance, equal access to all educational establishments and to the same curricula, teaching staff, school premises and equipment. An important exhortation to States parties is the elimination of any stereotyped concept of the roles of men and women at all levels of education, and the reduction of female student drop-out rates.

The health needs of girls are safeguarded under article 12 which urges States parties to eliminate discrimination against women in the field of health care, by ensuring equal access to health care services. This includes provision of adequate food and nutrition, immunisation, and sanitary living conditions.

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In relation to article 16, which addresses rights within the family, CEDAW adopted at its thirteenth session in 1994 General recommendation No 21 and suggested the following with regard to inheritance:

All that has been discussed earlier in relation to custom and culture as well as violence will apply equally to the girl-child to whose plight attention was specifically directed during the Fourth World Conference on Women held in Beijing, China, in September 1995. The Platform for Action stipulates actions to be taken by governments, international and non-governmental organisations in order to eliminate all forms of discrimination against the girl-child. This includes eliminating the injustice and obstacles in relation to inheritance and enacting legislation guaranteeing equal rights to succession; enacting and strictly enforcing laws to ensure that marriage is entered into freely and with full consent; developing and implementing comprehensive policies and programmes for the survival, protection, and advancement of the girl-child as well as protecting the full enjoyment of her human rights. Governments are also urged to take action to eliminate negative cultural attitudes and practices against girls, including the root causes of son preference which result in prenatal sex selection and female infanticide. Action should be taken to eliminate discrimination against girls in education, skills development and training and in health and nutrition, also to eliminate the economic exploitation of child labour and seek to protect young girls at work. In relation to the eradication of violence against girls, governments are

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urged to take effective action and enforce legislation protecting them from all forms of violence including sexual abuse, genital mutilation, sexual exploitation and prostitution as well as child pornography. The final objective in the Platform for Action is to strengthen the role of the family in improving the status of the girl-child.³⁶

The objectives of the Platform for Action reflect in large measure the provisions of and concerns which the Women's Convention seek to address. In order to ensure continuity and implementation of the Platform of Action, it invites States parties to include, in their reports submitted in accordance with their obligations under the Women's Convention, information on measures taken to implement the Platform for Action.³⁷ CEDAW is also requested, within its mandate, to take into account the Platform for Action when considering the reports of States parties.³⁸

Since its adoption in 1979, the Women's Convention has grown and come of age, with the number of States parties that have ratified or acceded to it increasing from twenty in 1981 to more than one hundred and fifty to date.³⁹ Concurrently, the number of reports submitted by States parties for consideration by CEDAW has risen steadily over the last fourteen years, with both initial and periodic reports being considered at present. The experience gained by CEDAW over the years is reflected in the range of general recommendations it has adopted, covering most of the articles of the Women's Convention.

There seems to be an upsurge of interest in promoting the rights of women, with countries hastening to ratify or accede to the Women's Convention even with reservations. This is an indication that women's rights are being recognised, and that they are in effect human rights which ought to be protected and enforced. Women have invaluable contributions to make in all spheres of the development of their countries and communities. This is exemplified by the following excerpt from the Vienna Declaration and Programme of Action:

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In pursuing the laudable objectives of the Vienna Declaration, one must not lose sight of the large number of women and young girls who are outside of the formal structure of society, whose rights are also universal and indivisible human rights which must be protected and safeguarded.

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