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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 39
October 6, 2007

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Star Law Analysis
Human Rights Advocacy
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Ensuring equal rights of women

An analysis of CEDAW

Khan Ferdousour Rahman

The UN has been very much vocal since its inception for protection of women's rights, as women are among the first victims of discrimination. They are most vulnerable and least empowered in many societies. Women's rights are included at various places in the UN Charter -- Preamble, Articles 1, 55 and 56. During the pre-UN development, the political right of women was first established in New Zealand in 1917. The International Conference of American States at Santiago voiced its concern about legal inequality of women in 1923; the next Conference in Havana in 1928 established an International Women Commission; and it was declared that women have equal political right as men and recommendation made to adopt urgent appropriate legislation by the governments in next Conference in Lima in 1938.

During post UN development period, the international community has created specific standards by adopting quite a few international instruments, i.e. UN Commission on Status of Women by ECOSOC on June 21, 1946; Convention for Suppression of Trafficking and Exploitation of Prostitution in 1950; Convention on the Political Rights of Women in 1952 (came into force in 1954); Convention on Nationality of Married Women in 1957; Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriage in 1962; Declaration on the Elimination of Discrimination Against Women in 1967; Declaration of the Protection of Women and Children in Emergency in Armed Conflict in 1974; and Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) in 1979 (came into effect in 1981).

In this connection the first world women conference was held in Mexico City in 1975, the second and third such conferences were held in Copenhagen in 1980 and in Nairobi in 1985 respectively; and the fourth conference was held in Beijing in 1995. The Beijing 5+ review conference was held in 2000 and the Beijing 10+ review conference was held in 2005 in New York. By the institutional buildup in addition of UNHCR, Commission on Status of Women at Geneva and CEDAW Committee with 23 independent experts play their role.

Historically women's right was always neglected. Their right was domestic in nature before the formation of the UN. The Preamble of the UN Charter first said about women's equal right like men. In the first draft of the UDHR, women were also ignored which was corrected afterwards. The Beijing Conference 1995 did not include women's rights, only included Programme of Action. The UN took a few steps to protect women's right. Its policy gives equal right for women in UN job vacancies, it initiates women's empowerment process throughout the world, takes action to improve the education of women, and every year March 08 has been observed as world women day under the supervision of the UN.

The declaration that 1975 was the international women year started a new era for improvement of women's status in every sphere of their life. The Nairobi Forward Looking Strategies (NFLS) for advancement of women was adopted by the third world conference on women. Due to the extensive discrimination against women, CEDAW was adopted on December 18, 1979 that came into force on September 03, 1981. The Convention purports to guarantee equal rights for women and prohibit discrimination against them. It obligates the State Parties to take all the appropriate measures to ensure quality of men and women in all matters relating to marriage and family ties.

In order to facilitate the process of undertaking human rights obligations, governments can reserve the right not to apply a specific part of a treaty and have to declare so when ratifying a treaty by submitting reservation. This procedure is designed to enhance the realisation of human rights by providing for exceptions to those guarantees, which governments cannot immediately and fully undertake at the time of ratification. It is not intended to enable governments to behave in a self-contradictory manner: to ratify a human rights treaty and thus express their commitment to it, but to reserve their right not to apply the crucial human rights safeguards which such a treaty requires. Much controversy has been created regarding the CEDAW, because reservations in many cases appear to be contrary to the very aim of the Convention.

UK has the reservation regarding the very definition of discrimination (Article 1); regarding Article 2 (commitment to eradicate discrimination) reservation has been given by Bangladesh, Cook Islands, Egypt, Libya (submitted reservation upon signature), Malawi, Tunisia and UK; on Article 4 (measures to accelerate de facto equality) by Malawi (submitted reservation upon signature); Article 5 (measures to eliminate prejudices and stereotyping) by Cook Islands, France and India (submitted reservation upon signature); Article 7 (elimination of discrimination in political and public life) by Austria, Belgium, Germany, Luxembourg, Spain and Thailand; Article 9 (equal citizenship rights) by Cyprus, Egypt, France, Iraq, Jamaica, Jordan, Korea, Thailand, Tunisia, Turkey (submitted reservation upon signature) and UK; Article 10 (elimination of discrimination in education) by Thailand and UK; Article 11 (elimination of discrimination in employment) by Malta, Mauritius, New Zealand, Thailand and UK; Article 12 (equal labor rights) by Australia, Austria, Ireland, New Zealand, Thailand and UK; Article 13 (equal access to financial credits) by Bangladesh, Ireland, Malta and UK; Article 15 (full legal capacity) by Austria, Brazil, Ireland, Libya (submitted reservation upon signature), Jordan, Malta, Thailand, Tunisia, Turkey and UK; and finally on Article 16 (elimination of discrimination in marriage and family) by Bangladesh, Brazil, Egypt, France, India (submitted reservation upon signature), Iraq, Ireland, Jordan, Libya (submitted reservation upon signature), Luxembourg, Malta, Mauritius, Korea, Thailand, Tunisia, Turkey and UK.

Reservations have been raised as they relate to specific provisions of the Convention, starting from the general principle of non-discrimination. These are important because they indicate the unwillingness of the governments to undertake a commitment to eradicate discrimination against women in all its forms, which is the aim of the Convention in order to show the degree of agreement and disagreement with respect to non-discrimination in family law and citizenship, and with respect to the legal capacity of women. Countries, which apply Shari'a law, submitted reservations concerning the very obligation to eliminate discrimination. Some reservations reflect the exclusively male heritage in the exercise of royal powers (Belgium, Luxembourg, Spain), others exclude women from employment in armed forces or from access to combat duties (Germany, New Zealand, Thailand); others restrict employment of women in night work or at jobs deemed hazardous to their health (Malta and UK). However, most of them retain restrictions on equal rights regarding personal status (e.g. marriage, family, citizenship and legal capacity of women).

While reservations made possible the ratification of Women's Convention by virtually all countries because they can opt out of some of its requirements, they also jeopardized the integral and effective application of the Convention as a whole. In other words, the problem is that formal adherence to the Women's Convention is not accompanied by full commitment to the Convention. This problem led to the repeated calls upon the UN to secure an authoritative determination of the permissibility of reservations, which apparently undermine the commitment to the core human rights obligations towards women. The ratification of the Convention means to accept international norms for equality between men and women, but it might not coincide with national norms. Thus the Convention would have been much more adaptable if it would have considered the major systems or concepts of the world.

The writer is a freelancer and presently working with a multilateral donor agency.


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