Women and Gender: International Human Rights

International Human Rights, Women and Gender

International Human Rights: Women and Gender

Women are the most assaulted segment of the human society. A shocking statistic reveals that a majority of the females are subjected to violence and sexual violence by the time they reach their late teens (Fergus, 2012).

Definitions of Violence against women, constitutes the mental and physical torture they are subjected to by way of restricting their right to freedom in the broader sense of the term. The crimes and exploitation against younger girls implies, by definition, violence based on gender discrimination. It has been observed that this act of violence is fallout of the negligence shown towards equality of the female child and womenfolk in general (Fergus, 2012).

The act of violence exposes the women and specifically the younger female child to isolation, loss of identity, unhealthy overall development, psychological and social stigma (WHO, 2006) and hence cause HIV and/or AIDS, causing further exposure to life threatening abuse and abhorrence (Fergus, 2012).

In studies carried out addressing the issues of atrocities against women and female children, it has come to light that 25 to 33% of them are subjected to sexual abuse either in the school, or on the way to school, forcing them to abandon studies or change the routes (UN Women, n.d.). Gender inequality and discrimination make girls vulnerable and can result in death from extreme violence (Fergus, 2012; Word Health Organization, 2006).

The socio-economic costs of discrimination and acts of violence against women are huge and far-reaching, those of diminishing human capital and also productivity and thereby social justice which in turn causes social and political imbalance and instability (UN General Assembly, 2006). Even though the main costs are borne by the individual and the immediate family and society of the individual, the state also loses by way of diminished human capital, imbalance of the sexes and hence strains the public services as a consequence (Fergus, 2012).

This paper critically discusses how the principles of equality and non-discrimination are approached within the UN human rights framework with reference to the work of at least two treaty-monitoring bodies, including the UN Committee on the Elimination of Discrimination against Women (CEDAW). But before we discuss the approach by these international bodies, it is critical we analyze exactly how these international bodies characterize equality and nondiscrimination.

Equality in human context is equality in treatment, in values without prejudice to sex, color, socio-economic conditions, or physical abilities. What is specific in the context of this work is that of gender-based equality and non-discrimination against women. There are far too many forms that arise in this construct and require the support of the entire societies to remove the imbalances in physical forms, psychological and mental posturing of superiority and inferiority and ensure expression of right to freedom to women in the society (Arbour, 2007).

Equality is defined by state apparatus as equal opportunities to all, however that is impossible to realize by those with, for example disabilities. Hence, special and preferential provisions need to be made for such inadequacies. Equality to opportunity is another way of looking at equality. The societal role in approaching this discrimination that may be based on gender, caste creed, color, regional or cultural segregation and similar factors needs to change and the state has a large role to play in it, in addition to the international community at large. In combining these two approaches, it will be seen that equality means equality in spite of not having the ability to contribute equally for any reason whatsoever (Arbour, 2007).

It would be easiest to understand the discrimination as is seen in the corporate world or even the more rigorous sports field where lesser number of women are seen occupying the most elite echelons by way of positions as well as the returns (financial or otherwise). Such a comprehension leads by implication to the meaning of the coining of 'non-discrimination, awarded against the same tasks or activities performed by both the genders. The very same discrimination is seen in case of people with disabilities, physical or mental and psychological. Thus, even if the regulations proclaim equality and non-discrimination, all sections of the society are unable to enjoy the full benefits accrued by them and require the intervention of 'preferential' treatment for them to enjoy equal opportunities in a tangible way (Arbour, 2007).

In this paper, we will thus focus on how two specific UN treaty monitoring bodies approach the issue of quality and nondiscrimination and how they then tackle the issue of violence against women within the context of equality and nondiscrimination as they are understood in the introduction above.

Section 2: Analyzing CEDAW's approach to preventing violence against women in light of nondiscrimination and equality principles

Introduction to the approach

The main aim according to the CEDAW proposals are to construct legally bound, executable international human rights treaties and constitutional provisions to penalize as well as take preventive action against discriminatory action or intent as well as violence against women in public and private lives. In this first article 1 itself, it explains that all spheres of life, social, cultural, public and private should be addressed under such agreements and treaties (Kazuko, 1995).

It is pertinent to note that the approach of CEDAW is not direct in that domestic violence is not explicitly stated, instead, interpretative conclusions are sought to be understood when it talks about 'gender-based' violence. The proceedings and legal implications therein are applicable at times of war as well as peace and all nation members of the UN come under the ambit of its provisions (Kazuko, 1995).

Classification of equality and nondiscrimination

Although in article 1 discrimination is being defined and classified against women, an explicit and clear distinction by way of definition, explaining meaningful, specific and relevant terms like 'violence against women' and violence based on gender or even that of gender are conspicuous by their absence. Surprisingly, what ought to be considered as 'marriage by force', socially inspired or otherwise, is also not defined and only a reference of this important causal discrimination against the female child can be found (Kazuko, 1995).

CEDAW has chosen to eliminate all such causes in the state apparatuses like provisions in the constitution of the state itself that biases and discriminates against women in all forms (article 2). CEDAW makes some very specific and far-reaching demands on the governments of various nations by requiring them to declare equality as well as make clear statements of equality of man and woman in the constitution. The main aim of this measure is to enable changes in practical implementation of removal of bias, violence, and discrimination against women. It makes its point clear by asking countries to provide for penal actions in instances of discriminations and violence against women while also removing all such provisions that are biased against the women (Freeman, 2009).

Recent efforts towards implementing equality and nondiscrimination standards

In a significant endeavor to remove discrimination against social and cultural bias CEDAW has taken the view that nations need to bring about a change in the overall view of the society and place equal emphasis on both sexes in the familial construct. In article 5(a), it stresses on the fact that special attention needs to be paid at the domestic level to imbibe the virtue of equality (Freeman, 2009). Whereas in article 10 (c) the same is sought to be achieved at all places of educational institutions and such provisions outside the home, too. The emphasis is on achieving equality by removing all conventional, traditional, and stereotyped roles that discriminate against the women (Forster and Jivan, 2010).

Attitudinal changes are needed in the whole society to bring about equality of the sexes. This view is emphasized by CEDAW in article 12 (1) that seeks removal of all traces of social customs and traditions that spell prejudice and bias against women or show them in poor light in any fashion. The boys and males should be taught to ensure practice of shunning violence of all forms against women in order to bring down discrimination as well as violence against women is another important viewpoint emphasized by CEDAW in article 12 (Forster and Jivan, 2010).

In the 'Definitions' chapter CEDAW has in its opening Paragraph equated 'Gender-Based Violence' with 'discrimination' of the sexes and specifically those that go against the women (UN Back-Grounder, 2007). Further, in the Paragraph 6 it can be found that the view of the CEDAW is that gender-based violence is the one instituted against women in the societal forms that affect the women specifically, physically, mentally or sexually. These may be acts of threat, perception of threat, forced or even extortion that impedes free expression of the women. In this way, CEDAW takes the view that the past conventions may be considered to have been overlooked even if such discriminations are not described as acts of violence (United Nations, 2003).

In furtherance of the eradication of violence and discrimination against women, in Paragraph 8, CEDAW requires state instruments to show continued adherence to the cause by even penalizing the elite and those holding responsible and high positions in public, social and private institutions wherever found discriminating against women or even found acting in contravention of the international human rights laws. CEDAW has clearly stated that it is of the view that its conventions will be deemed to have been breached if the state fails to examine and penalize those found guilty of violence against women. It has gone further to state that all such victims have to be provided compensation, and enacted by provisions made by state authorities (Jabiri, 2014).

CEDAW's approach to tackling Violence against Women

The CEDAW has delved into the social construct to find out the underlying reasons that may prove conducive to perpetrating violence against women, even if not explicitly stated. The societal structure that lays specific stress on stereotyping sexes with the kind of roles in day-to-day behavior where women are depicted as lesser and dependent and at the best, assisting roles promote a feeling of inferiority and a tendency amongst men to subject them to dominance and violence ( Paragraph 11). Hence, CEDAW holds the view that exhibitionism of women and commercial exploitation is also causative to violence and crimes against women (Freeman, Rudolf and Chinkin, 2012).

The provisions that discrimination against women do not define actual acts that comes under its purview. Although it recognizes that trafficking and prostitution and such acts put the women to risk of sexual violence, CEDAW has not categorically defined acts of violence that take place in the society. Its most clear stand is that of domestic and family violence where again the term, gender-based violence has been used (Paragraph 23) (CEDAW, n.d.). In defining 'Sexual harassment" CEDAW limits itself to specific acts in the workplace. CEDAW however lays emphasis on the fact that the women living in far-off places should be provided special protection and attention as they are amongst the most vulnerable of groups that may be subject to violence and discrimination. The other groups that come under the same radar are those in escort service (sex tourism), Commercial sex Workers Paragraph 15) (CEDAW, n.d.), helping hands at residences or offices and even those in arranged (read forced) marriages (Paragraph 14) (Coy, 2013).

In Paragraph 7 that attends to eradication of discrimination CEDAW holds the view that there has to be a concerted bid to end prejudice against women in both public and private domains by provisions made in the state instruments (CEDAW, 2010). Towards achieving the same, the biological and current social parameters have to be taken into account (Paragraph 8). It has been stated here that certain specially designed accelerators for bridging the gap between men and women have to be put into place by the state machinery from time to time that seeks to promote equality between the two sexes. The continuation of traditional societal status of subjugation of women results not only in acts of violence perpetrated against them on an individual level, but also through discrimination against them through legal, institutionalized as well as societal construct.( Paragraph 7) (CEDAW, 2010).

In a case involving Alyne-da Silva Pimentel Teixeira (deceased) vs. Hungary relating to social misconduct and act of domestic violence, the CEDAW castigated aspersions on the national government of Hungary in 2005 (Council of Europe, n.d.). CEDAW observed that the state had failed in its duties under the Committees' treaties, which it was bound by, to protect. It was bound to carry out investigative procedures against and penalize if found guilty, those responsible for causing discrimination against women, even if privately, within the confines of their house (Bhattacharya, 2013). Furthermore, in another case, the CEDAW Committee in its ruling in the case of Vertido held the Philippine government in violation of the treaty. The provisions it had violated were that of its failure to accord equality to genders in the court of law, and in doing so, it had been found guilty of ignoring many of the agreements. The ruling was that the legal process, as an arm of the national structure was bound to provide free and fair trial and trial conditions without any bias towards anyone with respect to their gender (Hellum and Aasen, 2013).

CEDAW and process for legal actions against reported incidents

It is noteworthy that all the member sates that come under the ambit of United Nations are bound by the ratifications and directives of CEDAW that aims to prevent and punish discrimination based on gender. The implications are however not very easy to carry out legally. The provisions to conform to the said treaty on Women Convention stipulates two basic premises- those of interstate coordination and the procedure laid down for reporting such transgressions (Council of Europe, n.d.).

The interstate reporting offers serious problems to implementations in view of the fact that the states are generally averse to sharing information with corresponding nations given the other complexities that they otherwise share and also because of the interpretations of the conventions. The stalemate thus ensued could drag the involved parties to the International Court of Justice which could then prove very costly for the state in question. The main premise is that home nations are strongly safeguarded by more dominant, other international conventions that other nations find difficult to breach. The resulting retaliation leads to prolonged stalemates. The CEDAW, in its Article 29 allows contentions on this ground and the standard of the Women Convention is rendered weak. This issue is further complicated by the fact that each state player has its own fallibilities in its compliance of safeguarding the women from discrimination and/or sexual abuse and hence exposes itself to attack from the world community if it seeks to put duress on any other state on the same counts. The CEDAW has allowed the nations to exercise their right to protect their structure of legal system on this count from international scrutiny, and thus weakened itself, making it difficult to implement its policies across nations with the required intensity (Bhattacharya, 2013).

Since Women Convention of the CEDAW is along the lines of, and at times akin to other human rights acts, the working and state reporting procedures are also drawn from the same larger canvass. The reporting required by the states is quadrennial as in other human right obligations. In article 18 of the act, it has been required that states present to the Committee the details of the incorporation of recommendation into its national instruments for prevention of discrimination against women and physical and sexual abuse. The CEDAW then examines and recommends further alterations according to the draft and provisions of the treaty and agreement to the reporting nation in full view and attendance of international community. However, that is the most it can do. Non-compliance of norms set by it cannot attract any reactive action or sanction against the defaulting state and hence, the reporting nation at best acts within its own moral obligations and interstate norms. Any conflicts or interpretational difficulties that arise within the state in implementing the convention directives are not a subject matter entertained by CEDAW (Bhattacharya, 2013).

Developments for furthering implementation of standards

A development that has however proved more useful in this context, of late, is the pressure groups' (Non-Governmental Organizations) rise, that takes the conventions seriously and often cause their own sates to apply the directives of the conventions and the treaties that they are a part of. The ratifications of the conventions place a lot of faith in the states' domain and allow alterations in its own rules to be suitably adjusted within norms of its own constitutional structure on the issue. This, in itself is weak compliance of the convention treaty. In addition, the CEDAW has no powers to enforce strict adherence on the states' part to implement the proclaimed norms to prevent and penalize acts of discrimination based on gender. So much so, that even the procedural ethics to be followed can't be forcefully made to comply with (Vandenhole, 2005; Bhattacharya, 2013).

Concluding Analysis

The Optional Protocol that was adopted by the CEDAW (which held the belief that general good would follow) adopted by the convention has rendered it toothless to bring about equality in gender and prevent discrimination on gender bias. Thus, it has been accused of laxity and is seen more as a symbolic asset at its best with no real effect to stem the menace of discrimination against the women. The larger interests of women protection and engendering equality that is sought to be attended to by the CEDAW, thus needs to re invent itself and seek more measures to translate the intentions into actions of effective measures (Vandenhole, 2005; Bhattacharya, 2013).

Section 3: Analyzing ICESCR's approach to preventing violence against women in light of nondiscrimination and equality principles

Introduction

The International Bill of Human Rights is the confluence of UDHR (Universal Declaration of Human Rights) and the ICESCR (International Covenant on Economic, Social and Cultural Rights) and the ICCPR (International Covenant on Civil and Political Rights) (Rajkhowa and Deka, 2013). The functioning of ICESCR (that looks to ensure all the basic and socio-cultural rights the world over, namely the right to employment and education, adequate standard of living and social security and health) is monitored by CESCR (Committee on Economic, Social and Cultural Rights) (Eide, n.d; Rights of Women, 2011).

The equality that ICESCR seeks to achieve on the global platform is specifically targeted towards the female sex as they have been discriminated against and refused equal share in the socio-economic and cultural Diaspora all over the world in varying degrees and forms (Eide, n.d). The most relevant issues sought to be addressed by the Convention are those of equality, the same status as that of male counterparts, employment opportunities, practical considerations at place of work, conditions that ensure decent living standards, right to education, health and unbiased and unhindered cultural participation, via articles 2 to 15 (Rajkhowa and Deka, 2013).

Viewpoint assumed and the effect thereof

The main focus of the CESCR is on the Violence against Women (VAW). The participant state authorities' actions need to be aligned to address such concerns diligently. The viewpoint carried by CESCR is that the conventions adopted by the CEDAW are of specific importance and VAW is a manifestation of injustice and discriminatory attitude shown towards women (Rajkhowa and Deka, 2013).

The imbalances in rights based on gender impede the cause of basic socio-cultural and economic rights of an individual and it is the concern of the state instruments and actors therein to take appropriate measures to address such violence. This point-of-view held by the CESCR is specifically concerned with the private actors and seek the states' proactive diligence in pursuing the redressal of such acts by way of mediation, investigation and penal awards as deem fit (Rajkhowa and Deka, 2013).

The immediate consequence of such a view held by the CESCR can insinuate the state for transgressions of non-compliance of the recommendations stated in VAW carried by state actors such as police or any authority in public domain or even its failure to penalize persons guilty of such acts (Rajkhowa and Deka, 2013).

CESCR is of the view that equality and discrimination against women can be addressed through the states' diligence of ensuring congenial, justified workplace environs and health rights. The rights of women are conjoined in article 2 with those of Human rights in article 3 that places the equality to men and women both in socio-economic paradigms (Peters and Wolper, 1995; Vandenhole, 2005).

ICESCR has held and proposed its viewpoints in many different provisions stated clearly in article 2 and article 3 (Peters and Wolper, 1995; Vandenhole, 2005).

Ideology and implementation of the viewpoint assumed

In article 2(2) the main premise of the ICESCR is that the women's right to both non-discrimination and equality can be addressed by linking it to work and health. In this context, it seeks to prohibit unequal treatment based on grounds of race, nationality, education, economic status, and upbringing and encompassing all that lies within these dimensions. In its all-encompassing form, discriminations based on sex and disabilities are also addressed (Peters and Wolper, 1995).

The view of the ICESCR is further extended even to the rights of women with questionable immigration status. Universal appeal of the provision in stating that the legal status of women cannot be used as an excuse to allow or propagate excesses against them and stifle their access to socio-cultural liberty and freedom (Peters and Wolper, 1995).

The equality proposed in article 3 are relevant to men and women both and hence only enhances and reinforces those detailed in the discrimination clause found in article 2 by extension to women (Peters and Wolper, 1995).

CESCR is of the view that it is by enacting in accordance to equality, non-discrimination will automatically follow, and hence emphasizes the role of the state in providing for equality in all socio-cultural and economic spheres (Decker et al., 2014). In addition to the permanent measures sought by state players by incorporating constitutional provisions, CESCR believes strongly in placing temporary accelerators that would be essential in specific biases that exist in favor of the women, that could engender equality and hence non-discrimination in the society (Decker et al., 2014).

CESCR further argues its viewpoint that confluence of discriminatory attitudes based on class, creed and culture currently prevalent in society is in furtherance of sexual discrimination and as such, has multiple negative impacts on the individual's psyche. These need to be addressed to actualize real and meaningful equality of women. Even though, in its draft, specific mention of violence against women does not appear, the overall equality stated for both men and women in its General comments is in pursuance of the objective and is to be regarded useful in inhibiting violence against women (Stamatopoulou, 2012).

Rights to Basic Utilities and Standard of Life

Women with physical deformities and disabilities are often deprived of their right to enjoy the process of motherhood, as it is perceived in general that they are incapable of executing the normal duties thereof. This discrimination has to be dutifully guarded against. As a specific mention termination of pregnancy without informing and seeking proper approval of the woman would be in gross violation of the woman's rights, this is attended to in article 10 (2) (Hui-Ling, 2012).