PROJECT ON A MECHANISM TO ADDRESS LAWS THAT DISCRIMINATE AGAINST WOMEN Commissioned by: Office of the High Commissioner for Human Rights – Women’s Rights and Gender Unit Consultant: Dr. Fareda Banda Release date: 6 March 2008 ACKNOWLEDGEMENTS I would like to thank Madeleine Rees, Dutima Bhagwandin, Vanessa Gorzcyka and all of the Women’s Rights and Gender Unit for their help. I should also like to acknowledge Jane Connors. They have been a pleasure to work with and I am very grateful to them for their time and many kindnesses. Having seen first hand just how busy UN personnel are, I am deeply grateful to those who agreed to be interviewed for this project. I thank them for their time, useful insights and the onward transmission of reports and materials which have proved useful. My thanks also go to the UN translations unit. The focus of the report was on laws that discriminate against women. It would not have been possible to have written this report without the help of those who responded to the questionnaire. I am very grateful to them for taking the time to respond, often in some detail, to the questions. Without you, this report would not have been possible. Finally I would like to thank Thoko Kaime for research assistance and Craig Liddle for support. I take full responsibility for the content of this report, including any mistakes, which I am happy to correct. ii TABLE OF CONTENTS ACKNOWLEDGEMENTS EXECUTIVE SUMMARY 1 INTRODUCTION 5 PART A: NON-DISCRIMINATION AND EQUALITY 14 Intersectionality 18 Reservations 23 PART B: REGIONAL HUMAN RIGHTS INITIATIVES 23 The European Convention on Human Rights 25 The Inter-American System 29 The African System 36 The Arab Charter 40 PART C: MAINSTREAMING WITHIN THE U.N. 41 Treaty Bodies 42 CEDAW 50 Special Procedures 56 PART D: LAWS THAT DISCRIMINATE AGAINST WOMEN 63 Age of marriage 73 Nationality/citizenship discrimination 83 Obedience laws – husband’s marital power 85 Non-consensual sex in marriage 89 Crimes in the name of “honour” 89 Discrimination in procedural and sentencing laws iii 91 Polygyny 95 Grounds for divorce 98 Post divorce property settlement 103 Succession and inheritance 107 Discrimination in employment 109 Night work and mine work 111 Barriers to employment-the requirement for family or spousal consent 113 Maternity policy –hampering women’s ability to participate in the labour market 114 Entitlement to Pension and other Benefits 115 Summary 117 PART E: IS THERE NEED FOR A SPECIAL RAPPORTEUR ON LAWS THAT DISCRIMINATE AGAINST WOMEN? 117 Arguments against the appointment of a Special Rapporteur on laws that discriminate against women 122 Engaging the arguments against-arguments in favour of the appointment of a Special Rapporteur on laws that discriminate against women 129 Other arguments in favour of the appointment of a Special Rapporteur on laws that discriminate against women 132 Possible mandate of a Special Rapporteur on laws that discriminate against women 134 To have or not to have a Special Rapporteur on laws that discriminate against women? 138 PART F: CONCLUSION AND RECOMMENDATIONS 141 APPENDICES iv 141 Appendix A – Consultant’s Terms of Reference 144 Appendix B – Methodology 148 Appendix C – Cover Letter and Questionnaire 152 Appendix D – Questionnaire Recipients v Executive Summary The aim of the project was to examine the advisability of creating a new mechanism to address laws that discriminate against women. The terms of reference specified two key objectives. The first was to overview existing UN mechanisms to ascertain the extent to which they addressed the issue of discriminatory laws. This involved interviewing UN human rights and agency officials working in both Geneva and New York1 and also reviewing the reports and jurisprudence of human rights committees and special procedure mechanisms. The second was to try to get national data on laws that discriminate against women. This was to be done by means of a questionnaire. On the basis of the data gathered, the consultant was required to advise on whether a special mechanism addressing discriminatory laws was needed. Divided into six parts, the report begins with a consideration of the concept of equality. It is now accepted that a formal model of equality based on “reversing the sexes and comparing them” will no longer suffice. Instead there needs to be a substantive approach. The Committee on the Elimination of all forms of Discrimination against Women (CEDAW) has noted that this requires States to monitor through measurable indicators, the impact of laws, policies and action plans and to evaluate progress achieved towards the practical realization of women’s substantive equality with men. In order to achieve this, it may be necessary for States to consider putting into place temporary special measures. These have been used to increase women’s participation in decision making bodies. Also considered in the report is the importance of adopting an intersectional approach that recognises the experiences of those who face multiple forms of discrimination simultaneously. The report assesses how reservations entered by States parties when ratifying human rights treaties have impacted upon the attainment of equality and specifically women’s ability to enjoy their rights. The fact that some reservations entrench legal discrimination against women calls into question the commitment of States parties to the principle of non-discrimination. Part B of the report is a consideration of regional human rights systems. In line with the United Nations human rights instruments, they all appear to uphold the principle of non-discrimination including on grounds of sex and also provide for equality before the law. However, there appears to be, in some jurisdictions, instances where international commitments are made subject to domestic laws. Part C focuses on the work of human rights treaty bodies and special procedures mechanisms. An assessment is made of treaty bodies’ jurisprudence as it pertains to laws that discriminate against women. It would appear that after the 1993 Vienna World Conference on Human Rights, greater attention has been paid to women’s rights in interaction with States parties and also in general comments produced by treaty bodies. Although most of the communications sent to those treaty bodies with a communication mechanism are sent by men, there is evidence to show that issues that impact directly upon women’s enjoyment of their rights have also been addressed, and that there is now greater use of the individual communications procedure of the Committee on the Elimination of Discrimination against Women. 1 In New York, interviews were also arranged with three not-for-profit organizations. vi Analyses of the work done by special procedure mandate holders shows that there has, over the years, been greater attention paid to issues affecting the enjoyment by women of their rights. This may reflect the fact that some mandates now specify that mandate holders look at issues pertaining to women/gender in their work. While some have identified (discriminatory) laws affecting women’s ability to enjoy their rights, many more have focused on the de facto situation of women painting a picture of exclusion. Nevertheless, it remains true to say that with some notable exceptions, a consistent focus on the rights of women has, at times been missing. Part D of the report is an analysis of the questionnaire responses focusing on the laws identified as discriminating against women. There is clear evidence that even those States whose constitutions guarantee equality before the law (the majority) have laws that discriminate against women. Personal status laws were identified as the most problematic. Discriminatory provisions were found in laws enshrining a lower age of marriage for girls than boys and, in some cases, sanctioning child marriage, paternal power vis-à-vis decisions concerning the child which was often linked to marital power over the wife, discrimination in nationality and citizenship laws, different grounds for divorce and discriminatory property division on death and divorce. Even procedural laws were sometimes found to be discriminatory privileging male witnesses over female ones. Discriminatory practices and provisions were also identified in employment law and criminal law. The penultimate part of the report (Part E) canvasses the arguments put forward by interviewees and questionnaire respondents for and against the appointment of a Special Rapporteur on laws that discriminate against women. From the questionnaire responses, the vast majority of those addressing the advisability of a Special Rapporteur on laws that discriminate against women were in favour of the creation of such a mechanism. Those who were opposed or sceptical about the need for the creation of new mechanism argued the following in outline: i) that the creation of new mechanism would result in duplication; ii) it would take away from the work of CEDAW; iii) other committees would stop focusing on women’s rights issues; iv) that there was already a Special Rapporteur dealing with violence against women; v) that a focus on de jure discrimination was not helpful. These arguments were considered in turn. Those in favour of the creation of a separate mechanism argued that CEDAW and a new Special Rapporteur on laws that discriminate against women should be seen as complementary mechanisms. The Special Rapporteur could assist CEDAW by following up on its (and indeed other committees) concluding observations vis-à-vis laws that discriminate against women. Indeed it was noted that CEDAW could issue instructions to the Special Rapporteur about States that needed following up and that the two would have a symbiotic, co- operative relationship. The Special Rapporteur could maintain an on going dialogue with States parties and undertake thematic surveys as well as sharing data on good practice. It was also noted that there were examples of other treaty bodies having “duplicated” special procedure mechanism, and that these operated without undue overlap.