WOM/1461
22 July 2004
Women’s Anti-Discrimination Committee Opens Discussion on Strengthening “Legal Backbone” of Women’s Convention with General Recommendation on Implementation
Civil Society, UN Agencies Weigh in with Proposals to Ensure Women’s Reproductive Rights, Protection in Armed Conflict
NEW YORK, 21 July (UN Headquarters) -- As the monitoring body of the Women’s Anti-Discrimination Convention this morning discussed article 2 of the women’s rights Treaty -- the “legal backbone” of the Convention -- representatives of civil society and United Nations agencies urged it to focus on women in armed conflict, women’s reproductive rights and the Convention’s status in domestic law.
Acting in their personal capacities, the Committee’s 23 expert members monitor compliance with the Convention, often referred to as an “international bill of rights for women”. Today’s discussion focused on a general recommendation to States Parties on implementing article 2, which deals with policies and measures to eliminate discrimination against women.
Addressing women in armed conflict, Madhu Mehra of International Women’s Action Watch of the Asia-Pacific said the Convention was the only body that could address such wartime violence as prostitution, trafficking, and sexual assault. The cultural stereotyping of women not only made them targets of war, but stigmatized the victims, making reparation and integration tenuous. The Committee should develop a framework of States’ obligations in cases of internal conflict, and monitor gross violations of women’s human rights.
Furthering that theme, Deepika Udagama, of the same organization, noted that women and children often formed the largest group of internally displaced persons, and their plight was particularly problematic. Moreover, women did not participate in resettlement and peace processes, even when they had been combatants in the conflict. Accessing goods and services was more difficult during times of conflict, and, thus, specific attention should be given to providing women with basic needs, credit, land and housing in resettlement processes.
Turning to women’s reproductive rights, Pardiss Kebriaei of the Center for Reproductive Rights of the United States highlighted forms of discrimination against women in pursuing their reproductive rights. Those included: passive or ineffective governmental response to widespread discrimination against women; the failure of States to provide high-quality reproductive health care; and the lack of aggressive HIV/AIDS prevention policies. Other discriminative practices included State barriers to family planning and safe abortion services, government inaction in eliminating female circumcision/female genital mutilation, and punishment for illegal abortions, or stillbirths, resulting from such prenatal practices as drug use.
On the Convention and domestic law, Oleksandra Rudneva, of the Kharkiv Centre for Women’s Studies of Ukraine stressed the need to include the Convention’s concept of equality and definition of discrimination into national constitutions or gender equality laws. States must be made to understand that ratification made it possible to invoke the Convention before national courts. Despite the large number of countries where treaties formed national law, the Women’s Convention had been invoked in only a few cases.
Summarizing the discussion, Committee Chairperson and expert from Turkey, Ayse Feride Acar, noted that speakers had pointed to the primary responsibility of States parties in implementing the Convention and the need to adopt a wide-ranging approach that would address all issues covered by the treaty. Others stressed that the Convention applied to both citizens and non-citizens, and that it covered girls, and not just adult women. Some speakers had suggested that the general recommendation should underline that the Convention’s guarantee of gender equality must be realized within the cultural and religious context.
Responding to some of the issues raised, Committee members noted that today’s discussion, which marked the first phase in the general recommendation process, had provided broad elements to be considered in its drafting. Experts agreed that article 2 had placed the Convention in the forefront of other human rights instruments. In drafting the recommendation, the Committee should not try to go beyond the Convention’s terms, one expert said, adding that the interpretation of article 2 should not broaden the content and purpose of the Convention’s remaining articles.
Outlining possible parameters of the recommendation, which would be the twenty-sixth to be adopted by the Committee, several experts said it should address federalism and international law, which had been a recurring theme in States Parties’ reporting. Experts also highlighted the need to use the Convention’s comprehensive applicability to cover all forms of discrimination. They described the Convention’s impact not only on domestic legislation, but also on the broader international legal framework. They also discussed the extent to which the recommendation should cover the relationship between article 2 and other articles of the Convention, or other areas of discrimination not covered by it.
Also participating in today’s discussion were: Lee Waldorf, the United Nations Development Fund for Women (UNIFEM), speaking also on behalf of United Nations Children's Fund (UNICEF), the World Health Organization (WHO), and the United Nations Population Fund (UNFPA); Rita Raj, International Women’s Rights Action Watch, Asia-Pacific; and Catherine MacKinnon, Equality Now, United States.
The Committee will meet again at a date and time to be announced in the Journal.
Background
The Committee on the Elimination of Discrimination against Women met this morning to discuss a general recommendation on article 2 of the Convention, which deals with policies and measures that States should implement to eliminate discrimination against women.
Statements
LEE WALDORF, of the United Nations Development Fund for Women (UNIFEM), spoke on behalf of UNIFEM, the United Nations Children's Fund (UNICEF), the United Nations Population Fund (UNFPA), and the World Health Organization (WHO). Stressing the importance of underlining that portion of article 2 that identified a State’s obligation to implement a policy to end discrimination against women, she said that national women’s machineries were vital in that regard. There was also a need to underscore the fact that all appropriate measures and other phrases in the article were not limited to legislation, but should be accompanied by other measures to make those laws truly effective. The Committee should make clear to States what some of those measures could be. It would also be helpful to draw the attention of States to the need to ensure that sufficient budgetary allocations were made to guarantee the effective implementation of any measures undertaken to comply with the Convention.
Continuing, she said that States’ obligations under article 2 extended to citizens as well as non-citizens, which the article did not specify, and that the Convention also applied to girls, not just to adult women. Regarding culture, the general recommendation should underline that cultural or religious differences were not a justification for failing to implement the Convention, but rather that the Convention’s guarantee of gender equality must be realized within every cultural and religious context. She also noted that poverty reduction frameworks, debt servicing requirements and trade agreements had not been designed or implemented with proper consideration of their potential impact on women’s human rights. Also, national capacity to implement the Convention could be significantly hampered. The general recommendation should advise States parties that they should seek to ensure that the trade and lending policies of international financial and trade institutions did not have a discriminatory impact on women. The Committee should also reiterate, in its general recommendation, the impermissibility of reservations to article 2 and call on States that had entered such reservations to engage in constructive dialogue with the Committee with the aim of removing them.
RITA RAJ, of the International Women’s Rights Action Watch (IWRAW Asia-Pacific), said obligations under the Convention did not recognize domestic law as an excuse for non-compliance. The question was who was responsible within the country for implementing the Convention. Obligations under the Treaty were binding on all organs of the State party. Although the State might work with non-governmental organizations and other entities, the primary responsibility for implementing the Convention belonged to the State party. By demanding the realization of rights, the Convention promoted a substantive model of equality, including equality of results. Several organizations in each government had their own interpretation of equality and those sometimes took a protectionist approach.
She said that, in eliminating discrimination, the State party must discuss discrimination in all spheres of life. Article 2 mandated the elimination of discrimination in all its forms. That undertaking required a clear understanding of discrimination. The Convention applied to all women, regardless of nationality. Regarding specific components of State’s obligations, the State party, when ratifying the Convention, undertook an obligation of means and results. The State was obligated to put special temporary measures in place to help erase the effects of past discrimination. The State must ensure that measures also focused on women in disadvantaged groups. Article 2 also required the State party to eliminate discrimination without delay. A lack of resources was not an excuse to delay obligations under the Convention. The obligation to protect required the State Party to prevent violations of rights by third parties.
Continuing, she said that the State party was also obligated to remove impediments to women’s equality based on cultural or traditional processes. The legal framework to implement the Convention was critical, and it was imperative that the Convention be incorporated in the State’s domestic legal framework. If that required enacting enabling legislation, the State was required to do so. The State party also had to ensure that mechanisms were in place to prevent and redress women’s human rights violations. Governments had to refrain from entering into discriminatory agreements with other States and had to be attentive to certain circumstances, such as armed conflicts. The State often pleaded helplessness in fulfilling its obligations. The recommendation should spell out the rationale for reporting. It must also spell out the responsibility of the State to create an environment where non-governmental organization (NGO) activism could freely take place.
MADHU MEHRA, IWRAW Asia-Pacific, India, noted that internal conflict led to prostitution, trafficking, and sexual assault, and that the Committee had made interventions in certain countries in the past. Due to an absence of legal measures to address the problem, the Convention was the only body that could address such violence and its consequences. The cultural stereotyping of women victims of violence not only made them targets of war, but stigmatized them within the community, making reparation and integration tenuous. Unfortunately, no appropriate legislation or measures within the existing penal codes and municipal systems addressed that problem.
She emphasized that the Committee should develop a framework of States’ obligations in cases of internal conflict. Gross violations of women’s human rights must be integrated into a constant review to guide States in taking measures and becoming accountable internationally. The concept of violence against women in times of conflict presented definitional challenges, which needed to be corrected. Prosecuting entire sequence of crimes, of which rape was but one, under a law regarding rape, was highly inadequate. Crimes committed in conflict situations went beyond personal injury, and attacked the spirit and dignity of an entire community.
The lack of reproductive health services in times of conflict, as well as treatment for trauma, was noteworthy, she said. In addition, many women lost their male partners and became instant breadwinners, whether they were prepared for that or not. Reparations were inadequate, she stressed, and were an area that urgently needed attention.
DEEPIKA UDAGAMA, IWRAW Asia-Pacific, Sri Lanka, said the principle of non-discrimination was one of the first casualties of armed conflict. Religion was often superimposed on ethnicity. Gender-based violence took extreme forms, including forced impregnations, sexual slavery and trafficking for forced prostitution. Those targeted were often women from the “other side”. Women suffered not only at the hands of the enemy, but also at the hands of their ‘own kind’. Women and children generally constituted the largest number of internally displaced persons, and their plight was particularly problematic. While the spectre of sexual assault loomed large in the context of armed conflict, equally large was the lack of access to basic civil and political rights. As accessing goods and services was more difficult during times of conflict, specific attention must be given to protecting women in the provision of basic needs, credit, land and housing in resettlement processes.
While some conflicts included women combatants, women did not enjoy the right to participate in resettlement and peace processes, she said. That recognition had paved the way for the landmark Security Council resolution 1325 (2000) on the role of women in peace processes. While international war crimes tribunals had made inroads into impunity, not all States fell within their jurisprudence. In that regard, she stressed the need to effectively deal with the issue of impunity. Measures should include the enactment of laws criminalizing sexual violence during conflicts. Military courts should include the recognition and punishment of such crimes. States parties had to ensure that adequate juridical mechanisms were in place to punish those for whom reasonable suspicion existed. States parties must provide training and education to armed forces and should be obliged to assist international tribunals to try persons charged with such crimes. The Committee had a supervisory role in ensuring that the obligation to protect women’s economic and social rights was carried out without sex- or gender-based discrimination.
CATHERINE MACKINNON, Equality Now, United States, noted that the Convention had a concrete focus, taking up women as a group, and specifically targeting all forms of discrimination in real life. Article 2, as an implementation provision of the Convention, provided guidance on appropriate steps to take to implement it. The focus of the general recommendation should be to critically analyze the results of implementation, which could immeasurably strengthen the Committee’s dialogue with governments. The Committee could lay out concrete means of implementation and then determine whether they were effective through ongoing constructive oversight. Implementation could fall short without any follow-up, and the Committee now had an opportunity to remedy that shortfall. The Convention was the right instrument with the right focus, and now was the right time to specify how human rights could be delivered to women.
OLEKSANDRA RUDNEVA, Kharkiv Center for Women’s Studies, Ukraine, said the Convention’s legal obligations were not limited to article 2. Almost all of the Convention’s articles contained general as well as particular States parties’ obligations. The Convention’s obligations under article 2 were binding on every State as a whole. Under article 2, the States parties were obliged to include the Convention’s concept of equality into national constitutions and to ensure, through the law, the practical realization of that principle. The definition of discrimination should be incorporated in States’ constitutions or gender equality laws.
She said that States parties’ judiciaries, including through the Convention’s direct applicability, must effectively ensure the enjoyment of women’s rights under the Convention. The State party had to understand that ratification made it possible to invoke the Convention before national courts. In many countries, ratified conventions formed parts of national law and could override conflicting ones. Despite the great number of countries in which treaties formed national law, there were few cases in which the Women’s Convention had been invoked. For example, while Ukraine had ratified the convention in 1981, that instrument had never been invoked in its national courts. The views of treaty bodies, such as the Committee, must be defined in domestic legislation to ensure the effectiveness of women’s human rights mechanisms.
PARDISS KEBRIAEI, Centre for Reproductive Rights, highlighted six forms of discrimination against women in pursuing their reproductive rights. First, the passive or ineffective government response to widespread discrimination against women. States must recognize the physical demands and need for high-quality reproductive health care. They should take measures to ensure universal access to reproductive health care, and implement policies to reduce maternal mortality. Secondly, the lack of aggressive HIV/AIDS prevention policies caused greater harm to women and girls, amounting to discrimination. Governments should intensify efforts to raise public awareness about the risk and effects of the disease, and strengthen gender-sensitive policies and programmes on HIV/AIDS. Third, imposing or failing to remove barriers to women’s access to family planning and safe abortion services discriminated against women. Among other measures, States should enact laws allowing abortion without restriction, take other legal and policy measure to ensure the accessibility of high-quality abortion services and the full range of contraceptive methods. Fourth, she continued, government inaction in eliminating female circumcision/female genital mutilation deprived women and adolescent girls’ enjoyment of their human rights.
Governments should ensure that national legal instruments contained protection for the right of women and girls to be free from such practices, and undertake appropriate and effective education and outreach programmes to eliminate demand for the practice. Fifth, government failure to ensure reproductive health information and services for adolescents had a disproportionate, discriminatory effect on girls. States should create comprehensive, age-appropriate health programmes for adolescents to address the needs of married and unmarried adolescents, and include information and services addressing reproductive health, gender roles, sexuality and responsible use of contraceptives. Finally, punishing women who had illegal abortions, or suffered stillbirths resulting from prenatal practices such as drug use, was discriminatory. States should cease all criminal prosecutions of pregnant women for stillbirths, and repeal all penal laws punishing women on the basis of their reproductive capacity, including laws on abortion.
Summarizing the discussion, Committee Chairperson and expert from Turkey, AYSE FERIDE ACAR, highlighted the fact that speakers had agreed that the general recommendation should emphasize the primary responsibility of the States parties as whole in implementing the Convention. The need to understand discrimination against women and gender equality in substantive terms was also stressed. Speakers had also noted the term “without delay” contained in article 2, stressing the urgency of the issue. Many speakers had picked up on the need to adopt a wide-ranging approach to the general recommendation and have that address the spectrum of issues covered by all articles of the Convention. That would require an all embracing approach with reflections on laws, policies and measures, as well as on cultural traditions and religious elements. The need to understand the Convention as covering both citizens and non-citizens should also be addressed. Ensuring that the general recommendation addressed States’ responsibility to respond to women’s human rights violations in situations of armed conflict, including cases of internal conflict, had also been emphasized. Overall, the discussion had helped to define the parameters of the general recommendation on article 2, she said.
Experts’ Comments and Questions
HANNA BEATE SCHOPP-SCHILLING, expert from Germany, said the discussion had showed that the Committee’s decision to hold a meeting with NGOs when preparing a general recommendation had been the right one. The need to carefully scrutinize all components of article 2 had been emphasized, as had been the need to use the Convention’s comprehensive applicability to all forms of discrimination. Regarding States parties’ obligation to proceed without delay, it would be good for the recommendation to elucidate the tension between “without delay” in article 2 and the time frame incorporated into the Convention’s other articles. The general recommendation should also address the issue of federalism and international law, which had be a recurring theme in reporting by States parties. As there was some confusion on the issue, a common understanding was needed. Article 2 would be an important way to attain that.
CORNELIS FLINTERMAN, expert from the Netherlands, said the Committee had been provided with building elements for the article 2 recommendation. It now faced the problem of determining the actual nature of the general recommendation. For example, should it receive inspiration by the general recommendations of other sister treaty bodies, or should it focus on specific issues. He agreed that the Convention not only impacted the responsibility of States within their territories, but also the international relations of States. It was important that the women’s Convention retain its validity, even in times of armed conflict. He had been intrigued with the term “positive” equality. What exactly did that mean? He agreed that the general recommendation could be used to highlight the importance of equality versus equity.
NAELA GABR, expert from Egypt, agreed it was important to take up the question in a comprehensive manner. As States often evaded responsibility by invoking the federal system, emphasis should be placed on their responsibility for implementing the Convention, which should be part of national legislation. She stressed the issue of awareness raising campaigns to avoid gender-based discrimination. Other issues included health and violence against women. Violence due to internal conflict required special attention. Reference could also be made to Council resolution 1325. All of those issues warranted more careful consideration.
KRISZTINA MORVAI, expert from Hungary, asked to what extent the general recommendation should cover the relationship between article 2 and other articles of the Convention, or other areas of discrimination not covered by the Convention. Also, had any research been done on the gender realities of adolescent sexuality, such as abusive relationships between girls and older men? she asked. Such research could have a great impact on putting the issue of reproductive health and adolescent girls into context. In addition, had any research been done on human sexuality today, as it had been affected by the growing sex industry, and what has been the effect on women’s lives and the reproductive rights of women? she wondered.
DUBRAVKA SIMONOVIC, expert from Croatia, noted that the general recommendation was a golden opportunity to develop the Convention as a leading human rights instrument. She asked whether article 2 (a) should contain a provision on gender equality, or whether the Committee should stick to the definition of gender equality as stipulated in the Convention.
AID GONZALEZ MARTINEZ, expert from Mexico, said that article 2 had originally been designed as the legal backbone of the Convention, and had placed the Convention in the forefront of other instruments when it had been adopted. However, the Committee should not try to go beyond the Convention’s terms. Interpretation of article 2 should not broaden the content and purpose of the Convention’s remaining articles.
HEISOO SHIN, expert from the Republic of Korea, could find only one mention of gender equity in the Convention, which had a different connotation than gender equality. Equity was not about equality, but stemmed from the new international economic order based on equity and justice. Would it be appropriate for the Committee to include the issue of equality and equity in the general recommendation, especially since some States used the term equity? she asked. Also, item (g) of article 2, on repealing national penal provisions that discriminated against women, should be expanded to include a reference to cases of women killing their abusive husbands.
MERIEM BELMIHOUB-ZERDANI, expert from Algeria stressed that the Convention must go beyond the national framework to an international one, and focus more on women in armed conflicts. The Committee must contribute to provisions of international law, especially as concerned the occupied territories in the Middle East, to ensure implementation of the Convention. The Committee could do much for women in situations of armed conflict.
MARIA REGINA TAVARES DA SILVA, expert from Portugal, said the Convention’s scope regarding gender equality was based not only on sex but also on gender factors. The content of article 2 went beyond its title. In drafting the recommendation, it was important to provide an explicit view of what the article already contained.
Follow-up Comments by NGOs and Agencies
Ms. MACKINNON, Equality Now, said the term “positive” equality had been chosen in an effort to find a phrase commensurate with the vision of equality in the Convention and rooted in the Committee’s jurisprudence.
Ms. RUDNEVA, Kharkiv Center for Women’s Studies, said the general recommendation should also include topics such as women’s reproductive rights in times of armed conflict. There was no doubt that article 2 was extremely important, juridically speaking, and that the recommendation should be written in detail, including legally correct wording that did not exclude any special topics. The Convention was an extremely progressive document. Her country’s draft law on gender equality said that women, as well as men, could make a claim to the Committee. That was an example of incorrect interpretation of the Convention’s jurisdiction; expanding the circle of rights covered by the Convention was not the right path to follow.
Ms. UDAGAMA, IWRAW Asia-Pacific, said that article 2 should be read in an all-encompassing manner. For example, State obligations during armed conflict should be incorporated into the recommendation.
Ms. WALDORF, UNIFEM, said a compromise between a certain level of extraction and a broader scope might be optimal in drafting the recommendation. Concrete examples were important in areas lacking conceptual clarity.
Ms. KISMODI of the World Health Organization (WHO) said her organization was increasingly working with governments and stakeholders in the Convention’s implementation. Providing governments with concrete examples would help them implement the Convention’s provisions. The WHO was conducting a study on violence against women, including adolescent violence, she added.
Ms. IMAM of the United Nations Population Fund (UNFPA) said that developed States were obliged to provide international assistance and cooperation in implementing the Convention, especially where they had influence, responsibility or control. Many States had also voluntarily undertaken commitments to provide various levels of aid, and should consider the form that assistance would take and under what conditions it would be applied.
Ms. KEBRIAEI said there was increasing documentation of adolescent sexuality, but the area needed more research. Government action was needed to stop adolescent abuse, as well as child marriage, and to acknowledge adolescent health-care needs. Governments should recognize adolescents’ capacity to make decisions about their reproductive health, which could have lifelong effects.
A representative of the Center for Reproductive Rights said that developed States were obliged to provide aid to less developed nations in implementing Convention.
SJAMSIAH ACHMAD, expert from Indonesia, said States should encourage non-State actors, such as the private sector, political parties, trade unions, academia and other major stakeholders, to take a more prominent role in implementing the Convention. She added that comprehensive studies were needed to identify specific ways of improving implementation, and to help everyone involved to properly understand the Convention.
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