Different Voices in Women Human Rights:

CEDAW and European Union Gender Equality Law

Helena Pereira de Melo

Teresa Pizarro Beleza

1. Introduction

Do women and their rights have different voices in different international or

supranational legal texts?

All European Union Member States are bound both by CEDAW and by EU law.

How do these systems compare in what concerns women’s rights?

Both sets of rules are concerned with equality and non discrimination on the

grounds of sex or gender. But while EU legislation tends to use a neutral language,

CEDAW’s purpose is expressly – in fact, most emphatically - stated not as to eliminate

sex discrimination in general (i.e. discrimination against women or men) but only

discrimination against women. Some of the women protected by CEDAW live in

Member States of the European Union (hereinafter “EU”), and will therefore be

protected both by CEDAW, and EU law; and of course domestic law in sex/gender

related issues.

We try and evaluate how similar or different the CEDAW and EU law systems

are in what concerns sex or gender equality and women’s rights. In both systems these

rights tend to be understood mainly or exclusively as a question of equality between

men and women. Although the equality paradigm may be perceived as largely

insufficient and problematic, it is still by far the dominant perspective both in

International and European Law1.

Professor of Constitutional and Health Law and Bioethics. Faculty of Law, New University of Lisbon. Professor of Criminal and Equality Law. Faculty of Law, New University of Lisbon.1 About this paradigm see SUNSTEIN, Cass R., “Gender, Caste and Law” in Women, Culture and Development A Study of Human Capabilities (edited by Martha C. Nussbaum and Jonathan Glover), Oxford: Clarendon Press, 1995, pp. 332 ff.

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The various national experiences seem to point to a pattern of prevalence of EU

legal rules implementation over compliance to CEDAW demands; the different

enforcement mechanisms of these two systems will certainly explain at least a part of

this prevalence. Political expediency probably accounts for the rest.

2. European Union’s Member States as CEDAW State Parties

According to article 25 of the Convention on the Elimination of All Forms of

Discrimination against Women (hereinafter “CEDAW”) the present Convention is

opened for signature or to accession by all States of the United Nations. Therefore, this

Convention is not opened for signature by the EU itself. Nevertheless, currently all its

twenty-seven countries – one hundred percent of its members, which are, as well,

members of the United Nations – are party to the CEDAW. They have all ratified this

treaty (as can be seen in Box I) and therefore are bound to put its provisions into

practice.

BOX 1

Country Date of signature Date of receipt of the

instrument of ratification,

accession or succession

Austria 17 July 1980 31 March 1982

Belgium 17 July 1980 10 July 1985

Bulgaria 17 July 1980 8 February 1982

Cyprus - 23 July 1985

Czech Republic - 22 February 1993

Denmark 17 July 1980 21 April 1983

Estonia - 21 October 1991

Finland 17 July 1980 4 September 1986

France 17 July 1980 14 December 1983

Germany 17 July 1980 10 July 1985

Greece 2 March 1982 7 June 1983

Hungary 6 June 1980 22 December 1980

Ireland - 23 December 1985

Italy 17 July 1980 10 June 1985

Latvia - 14 April 1992

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Lithuania - 18 January 1994

Luxembourg 17 July 1980 2 February 1989

Malta - 8 March 1991

Netherlands 17 July 1980 23 July 1991

Poland 29 May 1980 30 July 1980

Portugal 29 April 1980 30 July 1980

Romania 4 September 1980 7 January 1982

Slovakia - 28 May 1993

Slovenia - 6 July 1992

Spain 17 July 1980 5 January 1984

Sweden 7 March 1980 2 July 1980

United Kingdom of Great Britain

& Northern Ireland

21 July 1981 7 April 1986

Source: http://www.un.org/womenwatch/daw/cedaw/states.htm

On 18 February 1994 (the 30th day after the date of the deposit of the instrument

of accession with the Secretary-General of the United Nations by the Lithuanian State),

CEDAW has entered into force on the territory of the latest European Union Member

State to become bound by the Convention. This means that the legislation and the

policies of all the twenty seven EU Member States have to be in accordance with the

CEDAW’s objectives. And the same happens with the EU’s policies and law, if we

consider article 6 (1) of the Treaty on European Union2.

The CEDAW nowadays applies to the whole of European Union’s territory. But

not all of CEDAW’s text, since any State may, when signing the Convention or when

depositing the instrument of ratification, acceptance, approval or accession, make a

reservation in respect to any particular provisions of the Convention that do not belong

to its core provisions3, to the extent that any law then in force in its territory is not in

conformity with the provision, or that they are not congruent with national tradition,

religion or culture.

2 According to this article “the Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States”.3 According to article 28, n. 2 of CEDAW, “a reservation incompatible with the object and purpose of the present Convention shall not be permitted”. This article adopts the impermissibility principle contained in article 19, c), of the Vienna Convention on the Law of Treaties opened for signature on 23 May 1969. About this article see RIDDLE, Jennifer, “Making CEDAW Universal: A Critique of CEDAW’s Reservation Regime Under Article 28 and the Effectiveness of the Reporting Process”, The George Washington International Law Review, 1 January 2002. About the early years of the Convention and some of the difficulties it faced in its efforts to become an effective voice for women's rights see, in the same journal, EVATT, Elizabeth, “Finding a Voice for Women’s Rights: The Early Days of CEDAW”, The George Washington International Law Review, 1 January 2002.

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The Committee on the Elimination of Discrimination against Women

(hereinafter “Committee”) considers incompatible with the object and purpose of

CEDAW, and therefore not to be permitted, reservations to article 2 and to article 16.

The Committee considers these articles to be the core provisions of the Convention and

so, the State Parties which have entered reservations to them are invited to withdraw or

modify their reservation, which does not always happen. Have the EU’s States entered

reservations to these articles? If they have, have them maintained their reservations or

withdrawn them4?

BOX 2

Country Articles for which

reservations have been

made

Articles for which

reservations have been

withdrawn

Articles for which

reservations remain

France 16, n. 1 (c), (d), (g) and

(h)

16, n. 1 (c), (d) and (h) 16, n. 1 (g)

Ireland 16, n. 1 (d) and (f) - 16, n. 1 (d) and (f)

Luxembourg 16, n. 1 (g) - 16, n. 1 (g)

Malta 16, n. 1 (e) - 16, n. 1 (e)

United Kingdom of

Great Britain &

Northern Ireland

16, n. 1 (f) - 16, n. 1 (f)

Considering the specific reservations by country, we reach the conclusion that

only five of the twenty seven EU member states have entered impermissible

reservations relating to the CEDAW and still maintain them. Equality of rights for

women may not be assured in these countries in what concerns:

a) The same rights and responsibilities as parents irrespective of their marital

status, in matters relating to their children (France and Luxembourg);

b) The same rights to decide freely and responsibly on the number and spacing

of their children (Malta);

4 We consider the data published in UNITED NATIONS (2006), Meeting of State Parties to the Convention on the Elimination of All Forms of Discrimination against Women, 14th meeting, New York, 23 June 2006.

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c) The same rights and responsibilities with regard to guardianship, ward,

trusteeship and adoption of children (Ireland and United Kingdom of Great

Britain & Northern Ireland);

d) The same personal rights as husband and wife (France and Luxembourg).

But we may as well conclude that all EU’s member states are legally bound to

strive towards the full respect of the principle of equality of rights for women, in what

concerns the set of rights laid down in article 2, and article 16 n. 1 (a), (b), (c) and (h),

and n. 2.

If we consider the status of declarations, reservations, objections and

notifications of withdrawal of reservations to other CEDAW’s provisions by State

Parties that are members of the EU related to the remaining articles of the CEDAW, as

of 1 April 20065, we have the following data:

BOX 3

Country Articles for which reservations remain

Austria 11, n. 1

Belgium -

Bulgaria -

Cyprus -

Czech Republic -

Denmark -

Estonia -

Finland -

France 14, n. 2 (c) and (h)

29, n. 1

Germany General declaration

Greece -

Hungary -

Ireland 11, n. 1

13, § (a)

Italy -

Latvia -

Lithuania -

Luxembourg 7

Malta 11, n. 1

5 UNITED NATIONS, Meeting of State Parties to the Convention on the Elimination of All Forms of Discrimination against Women, 14th meeting, New York, 23 June 2006.

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13

15

Netherlands General declaration

Poland -

Portugal -

Romania -

Slovakia -

Slovenia -

Spain Declaration

Sweden -

United Kingdom of Great

Britain & Northern Ireland

Declarations

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11, n. 1 and 2

15, n. 3

In eighteen EU Member States all the articles of the Convention are applicable, which

means that all these States have to fully respect internationally and internally this

binding instrument that aims at eliminating discrimination against women. In the

remaining nine EU Member States, almost all the provisions the CEDAW are applicable

as well. Reading the information provided in Box 3, we may conclude, a contrario

sensu, that all the CEDAW’s State Parties that are as well members of the EU shall take

appropriate measures, including legislation, to comply with the following provisions of

the text of the Convention: articles 2; 3; 4; 5; 6; 8; 10; 11 n. 3; 12; 14 n. 1 and n. 2 (a),

(b), (d), (e), (f) and (g); 16, n. 1 (a), (b), (c) and (h), and n. 2; 17; 18; 19; 20; 21; 22; 23;

24; 25; 26; 27; 28; 29, n. 2 and n. 3 and article 30.

If we consider the Optional Protocol to the CEDAW, adopted by the United

Nations’ General Assembly on 6 October 1999, that allows individuals or groups of

individuals, under the jurisdiction of a CEDAW State Party, claiming to be victims of a

violation of the rights set forth in the CEDAW, to submit a communication to the

Committee on the Elimination of Discrimination against Women, we shall reach the

conclusion that twenty four EU member states have signed, ratified or acceded it6.

6 On 5 January 2011 only Estonia, Latvia and Malta had not yet ratified or acceded to this treaty that was adopted by resolution A/RES/54/4 of 6 October 1999 at the fifty-fourth session of the General Assembly of the United Nations. Source: http://www.un.org/womenwatch/daw/cedaw/protocol/sigop.htm

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3. The elimination of discrimination of women in CEDAW

The CEDAW’s purpose is “to eliminate all forms of discrimination against women”.

Discrimination against women is understood as, for its purposes, “any distinction,

exclusion or restriction made on the basis of sex which has the effect or purpose of

impairing or nullifying the recognition, enjoyment or exercise by women, irrespective

of their marital status, on a basis of equality of men and women, of human rights and

fundamental freedoms in the political, economic, social, cultural, civil or any other

field”7.

Its purpose is not to eliminate sex discrimination in general (i.e. discrimination

against women or men) but specifically discrimination against women. The text of the

Convention is based on the dominance approach, in the sense that it acknowledges that

power relations exist between men and women – that the difference between women

and men is “different” also in the sense that the relations between sexes are

asymmetric8. The Convention aims at a substantive and not only formal approach to

equality: aims at achieving not only de iure but also de facto equality between men and

women.

Besides from protecting women as a group and not men, by reading article 1 of the

Convention we also reach the conclusion that it aims at protecting women not only from

unfair negative discrimination in general, but also from discrimination in the

recognition and exercise of women’s humans rights and fundamental freedoms.

If we consider the following articles, State Parties have negative and positive

obligations towards women. They have an obligation to prevent them from being

discriminated against: they have the duty to take “all appropriate measures to eliminate

discrimination against women by any person, organization or enterprise” and to “modify

or abolish existing laws, regulations, customs and practices which constitute

discrimination against women”9. Formal equal rights between men and women have to

be ensured by each State Party in public and private life. The glass ceilings that still

7 Article 1 of CEDAW. About the history of the Convention see GAER, Felice, “Women, International Law and International Institutions: The Case of the United Nations”, Women’s Studies International Forum, n.º 32, 2009, pp. 60 – 66.8 See BELEZA, Teresa Pizarro, Mulheres, Direito, Crime ou A Perplexidade de Cassandra, Associação Académica da Faculdade de Direito de Lisboa, Lisboa, 1993, pp. 129 ff., and BELEZA, Teresa Pizarro, Direito das Mulheres e da Igualdade Social A Construção Jurídica das Relações de Género , Coimbra: Almedina, 2010, pp. 73 ff.9 Article 2 (e) and (f) of CEDAW.

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remain and exclude women from certain jobs and spheres of activity (such as politics)

must be broken.

But something more than the enjoyment of human rights on a basis of equality with

men has to be achieved, since the realization of women’s equality does not only depend

on the existence of appropriate legal norms. State Parties also have to adopt policies to

“modify the social and cultural patterns of conduct of men and women” in order to

abolish the prejudices based on the “idea of the inferiority or the superiority of either of

the sexes or on the stereotyped roles for men or women”10. Stereotyped ideas, attitudes

and perceptions about the different roles of men and women that lead to social structural

discrimination have to be eliminated. Work on the legal framework has to be completed

by a strategy that puts special emphasis on addressing the causes of women’s inequality

and that shifts the focus from the drafting of human rights to the enjoyment of those

rights. Thus, State Parties shall take all appropriate measures (law and other policy

measures) in order to ban fixed gender stereotypes from the mass media and from

advertising. School teaching materials should also be revised allowing each child to

chose what it means for her/him to be a person who belongs to a certain sex (male,

female). To break with traditional understandings of what a male or a female is means

to achieve cultural and social changes.

As these changes tend to be slow and women are a historically disadvantaged group,

measures of affirmative action are allowed by article 4 of the CEDAW. These special

measures may, according to the Committee’s General Recommendation n. 25, have two

different purposes. The first purpose is to “accelerate the improvement of the position of

women to achieve their de facto or substantive equality with men and to effect the

structural, social and cultural changes necessary to correct past and current forms of

discrimination against women, as well to provide them with compensation”. The second

purpose is to provide “for non-identical treatment of women and men due to their

biological differences”11. To achieve the first purpose State Parties shall adopt

temporary measures. To achieve the second, they shall adopt permanent measures.

4. The elimination of discrimination of women in other International Treaties

10 Article 5 (a) of CEDAW. About the stereotyped roles for men or women see NUSSBAUM, Martha C. (1999), Sex and Social Justice, Oxford: Oxford University Press, pp. 51 ff.11 COMMITTEE ON THE ELIMINATION OF DISCRIMINATION AGAINST WOMEN, General Recommendation No. 2, on article 4, paragraph 1, of the Convention on the Elimination of All Forms of Discrimination against Women, on temporary special measures, 2004, p. 4.

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Although the CEDAW is the first comprehensive and binding instrument adopted by

the United Nations to eliminate discrimination against women in general, we must not

forget that the State Parties to the Convention already had the contractual obligation to

protect and promote the human rights of women under a series of international treaties

of some relevance for women. We only have to recall the Preamble to the Charter of the

United Nations12, article 2 of the Universal Declaration of Human Rights13, and article

2, n. 2 of the International Convent on Economic, Social and Cultural Rights14 and

article 2 of International Convent on Civil and Political Rights15.

All the State Parties of the CEDAW are also contracting parties of both International

Covenants on Human Rights16. They have also ratified the two main International

Labour Organization conventions on the elimination of discrimination in respect of

employment and occupation: the Equal Remuneration Convention, adopted in 1951, and

the Discrimination (Employment and Occupation) Convention, adopted in 195817.

Almost all State Parties to the CEDAW have also signed and ratified the Convention on

the Nationality of Married Women, which entered into force on the 11th August 195818,

and the Convention on Consent to Marriage, Minimum Age for Marriage and

12 One the United Nation’s central goals is according to the Preamble of the Charter signed on 26 June 1945, in San Francisco, is the reaffirmation of “faith in fundamental human rights, in the dignity and worth of the human person, in equal rights of women and men (…)”.13 According to article of the Declaration, adopted and proclaimed by the General Assembly resolution 217 A (II) of 10 December 1948, “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”. Articles 3 and 26 are also important to avoid discrimination against women. About CEDAW as an international instrument that seeks to advance women’s rights protection by applying a gender perspective to principles enunciated in the Universal Declaration see DAUER, Sheila, “Indivisible or Invisible Women’s Human Rights in the Public and Private Sphere” in Women, Gender, and Human Rights A Global Perspective (editor: Marjorie Agosín), Rutgers University Press, London, 2002, pp. 67 ff.14 According to this paragraph of this Convent adopted by General Assembly resolution 2200A (XXI) of 16 December 1996, “the States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as of race, color, sex (…)”. Articles 3, 7 and 10 also promote equality of rights for women. 15 According to this paragraph of this Covenant adopted by General Assembly resolution 2200A (XXI) of 16 December 1996, “the States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as of race, color, sex (…)”. Articles 3, 7 and 10 also promote equality of rights for women. About the case law of the Human Rights Committee on equality of women and men under this Covenant, see NOWAK, Manfred, “The Prohibition of Gender-specific Discrimination under the International Covenant on Civil and Political Rights” in Human Rights of Women: International Instruments and African Experiences (ed.: Wolfgang Benedek, Esther M. Kisaakye and Gerd Oberleitner), London: Zed Books, 2002, pp. 105 – 118.16 Source: http://treaties.un.org (5 January 2011).17 Source: http://www.ilo.org/ilolex/english/docs/declword.htm (5 January 2011)18 This Convention was opened for signature pursuant the resolution 1040 (XI) adopted by the General Assembly of the United Nations on 29 January 1957. Estonia, France, Greece, Italy, Lithuania and Spain are not participating in this international treaty.

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Registration of Marriages, which entered into force six years later19. To promote gender

equality some of them have also signed the Convention on the Political Rights of

Women that entered into force in 7 July 1954. Under this Convention, State Parties

commit themselves to grant women, without discrimination and on equal terms with

men, the right to hold public service, to vote and to stand for election. Also important

was the Convention against Discrimination in Education, adopted by the General

Conference in Paris, on the 14th December 196020. With respect to the suppression of the

traffic of women and children, they have, as well, signed the International Convention

for the Suppression of the Traffic in Women and Children, concluded at Geneva on 30

September 1921, as amended by the Protocol signed at Lake Success, New York, on 12

November 194721, and the Optional Protocol to the Convention on the Rights of the

Child on the Sale of Children, Child Prostitution and Child Pornography22.

All the Member States of the European Union are, as well, member states of the

Council of Europe. They have all signed and ratified the Convention for the Protection

of Human Rights and Fundamental Freedoms, a treaty opened for signature by the

Member States of the Council of Europe in Rome, in November 195023. According to

article 6 (2) of the Treaty of the European Union, the Union shall respect fundamental

19 This Convention was opened for signature and ratification by General Assembly resolution 1763 A (XVII) of 7 November 1962 and has not yet been signed nor ratified by Belgium, Bulgaria, Estonia, Ireland, Latvia, Lithuania, Luxembourg, Malta, Portugal and Slovenia. All rules are, in a certain sense, linked: Paragraph 36 of the General Recommendation no. 21 adopted by the Committee in the Elimination of Discrimination against Women (13th session, 1994) establishes the minimum age for marriage for both sexes at eighteen years of age. Paragraph 23 of the Human Rights Committee General Comment no. 28 on Equality of Rights between Men and Women requires that the minimum age for marriage should be set by states on the basis of equal criteria for women and men. And Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification, determines (article 4 § 5) that Member States may require “in order to ensure better integration and to prevent forced marriages” that “the sponsor and his/her spouse” are of a “minimum age” before the spouse is able to join him/her. 20 This Convention has been accepted by Bulgaria, Cyprus, the Czech Republic, Denmark, Finland, France, Germany, Hungary, Italy, Latvia, Luxembourg, Netherlands, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden and the United Kingdom of Great Britain and Northern Ireland.21 This Convention has been signed or ratified by Austria, Belgium, the Czech Republic, Denmark, Estonia, Finland, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, Romania, Slovakia and Sweden. 22 This Protocol was adopted by resolution A/res/54/263 of 25 May 2000 of the General Assembly of the United Nations. All EU member states have signed it. Of these, the Czech Republic, Finland, Ireland and Luxembourg have not yet ratified it.23 Source: http://conventions.coe.int/treaty/Commun According to article 14 of this Treaty, “the enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex (…)”. About the significance of the prohibition of discrimination and the question of the existence of a hierarchy of grounds in this international treaty, see SCHUTTER, O. de, The Prohibition of Discrimination under European Human Rights Law Relevance for EU and Employment Equality Directives, Luxembourg: Office for Official Publications of the European Communities, 2005, pp. 11 ff.

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rights as guaranteed by this International Treaty. Most of the EU Member States have

signed Protocol n. 12 to this Convention24.

All the EU member States have signed and ratified the European Social Charter

opened for signature by the Member States of the Council of Europe in Turin on 18

October 196125. Nevertheless all the EU Member States have signed, but not ratified the

European Social Charter (revised) opened for signature by the Member States of the

Council of Europe in Strasbourg, in 3 May 199626. This means that almost all the EU

Member States accept, as contracting parties of the first of the European Social Charter

that employed women have the right to protection and consider that the enjoyment of

social rights shall be secured without discrimination on the grounds of sex (preamble)27.

And all the EU Member States in the Revised Charter that was designed to

progressively take the place of the European Social Charter have agreed on the

following rights and principles: “employed women, in case of maternity, have the right

to a special protection”28; and that “all workers have the right to equal opportunities and

equal treatment in matters of employment and occupation without discrimination on the

grounds of sex”29. They also accept that the enjoyment of the rights set forth in the

Revised Charter will be secured without discrimination on any ground such as sex30.

Another important Council of Europe’s convention to guarantee gender equality

is the Convention on Action against Trafficking in Human Beings, open to signature in

Warsaw, on 16 May 2005. Twenty EU Member States have signed and ratified it31.24 Austria, Belgium, Cyprus, the Czech Republic, Estonia, Finland, Germany, Greece, Hungary, Ireland, Italy, Latvia, Luxembourg, Netherlands, Portugal, Romania, Slovakia, Slovenia and Spain have signed this treaty open for signature by the member States of Council of Europe signatories to the Convention for the Protection of Human Rights and Fundamental Freedoms in Rome on 4 November 2000. But only seven of these countries have already ratified this Protocol, which entered into force on 1 April 2005. According to article 1 of this European Treaty “the enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex (…)” and anyone shall “be discriminated against by any public authority” on the same ground. Source: http://conventions.coe.int/treaty/commun/ (5 January 2011).25 Source: www.coe.int/social charter (5 January 2011).26 This treaty has entered into force in Belgium, Bulgaria, Cyprus, Estonia, Finland, France, Ireland, Italy, Lithuania, Malta, Netherlands, Portugal, Romania, Slovenia and Sweden. It has not entered into force in Austria, Czech Republic, Denmark, Germany, Greece, Latvia, Luxembourg, Poland, Spain, and in the United Kingdom. The non-discrimination principle is ensured in article 3 of the Convention. Source: http://conventions.coe.int (5 January 2011). About the importance of the collective complaint mechanism to fight discrimination in the enjoyment of the rights set forth in this Charter, see BELL, Mark, “Combating Discrimination through Collective Complaints under the European Social Charter”, European Anti-Discrimination Law Review, n.º 3, April 2006, pp. 13 ff.27 Preamble and article 8 of the European Social Charter.28 Principle 8 and article 8 of the European Social Charter.29 Principle 20 and article 20 of the European Social Charter.30 Article E of Part V of the European Social Charter (revised).31 These countries are: Austria, Belgium, Bulgaria, Cyprus, Denmark, France, Ireland, Italy, Latvia, Luxemburg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden and the

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To achieve gender equality as a prerequisite for economic development, the

Ministers of the States participating in the 6th European Ministerial Conference on

Equality between Women and Men, held in Stockholm in June 2006, recalled the

CEDAW and invited Governments to “ratify all relevant legal instruments concerning

gender equality”32.

In what concerns the rights and responsibilities with regard to adoption of children it

is also important to recall that a significant part of the CEDAW State Parties have

signed the European Convention on the Adoption of Children, opened for signature in

Strasbourg, on the 24th April 196733.

Although the approach reflected by these United Nations and Council of Europe

instruments is fragmentary in what concerns the protection and promotion of women’s

human’s rights and fundamental freedoms, they are useful to deal with discrimination

against women and to combat the effects of such discrimination in the EU countries

where the CEDAW’s text is not fully applied. The reservations to the CEDAW’s text

that still remain therefore do not tend to seriously undermine the effectiveness of the

treaty in the EU territory.

5. Effective protection of women’s rights

Individuals or groups of individuals who claim to be victims of a violation of any

of the rights set forth in the CEDAW and who are under the jurisdiction of a State Party

to the Optional Protocol to the CEDAW, may submit a communication to the

Committee on the Elimination of Discrimination against Women, on their own or on

behalf of someone else. Nevertheless there are many situations where discrimination

against women will not be condemned, because the Committee shall not consider the

communication or declare it inadmissible under article 4 of the Optional Protocol to the

United Kingdom. Source: http://conventions.coe.int/treaty/commun/ (5 January 2011).32 Appendix to the referred Resolution that is published in Human Rights and Economic Challenges in Europe – Gender Equality 6th European Ministerial Conference on Equality between Women and Men Stockholm, 8-9 June 2006 Proceedings, Council of Europe Publishing, Strasbourg, pp. 9 ff. 33 Austria, the Czech Republic, Denmark, France, Germany, Greece, Ireland, Italy, Latvia, Luxembourg, Malta, Poland, Portugal, Romania, Sweden and the United Kingdom of Great Britain and Northern Ireland have signed and/or ratified it. Source: http://conventions.coe.int/treaty/commun/ (5 January 2011).

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CEDAW34. This happened, for instance, in the case B.-J. v. Germany35. In this case the

Committee decided that the communication made in August 2002 by Ms. B.- J., a

German citizen that claimed to be a victim of violations by Germany of articles 1, 2, 3,

5, 15 and 16 of the CEDAW, was inadmissible for the author’s failure to exhaust

domestic remedies and because the disputed facts had occurred prior to the entry into

force of the Optional Protocol for Germany and did not continue after that date.

In other situations, although the State Parties to the CEDAW have the obligation

to take all appropriate measures to eliminate discrimination against women in order to

ensure to them equal rights with men in several fields that does not always happen, in

practice36. An example of this can be found in the case B.A.T. v. Hungary: the

Committee noted that the legal and institutional arrangements in the State Party were

not ready to ensure internationally expected, coordinated, comprehensive and effective

protection and support for victims of domestic violence and that domestic violence

cases as such did not enjoy high priority in the Hungarian court proceedings. Therefore,

it urged the State Party to “assure victims of domestic violence the maximum protection

of the law by acting with due diligence to prevent and respond to such violence against

women”37.

We may also consider the inquiry procedure that allows the Committee, if it

receives “reliable information indicating grave or, systematic violations by a State

Party” of rights set forth on the CEDAW, to “cooperate in the examination of the

information and to this end to submit observations with regard to the information

concerned”38. This procedure is, as Felipe Gomez Isa writes, “a protection mechanism

34 About the Committee’s approach to questions of admissibility, that has been quite consistent with the practice of other United Nations human rights treaty bodies, see BRYNES, Andrew, and BATH, Eleanor, “Violence against Women, the Obligation of Due Diligence, and the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women”, Human Rights Law Review, 2008, vol. 8, n.º 3, p. 531, and MACKINNON, Catherine, “CEDAW,’S Optional Protocol Procedures”, Interights Bulletin, vol. 14, n.º 4, 2004, pp. 173 – 174.35 Communication No.: 1/2003, Ms. B.- J. v. Germany (Decision adopted on 14 July 2004). About this case see SOKHI-BULLEY, Bal, “The Optional Protocol to CEDAW: First Steps”, Human Rights Law Review, 2006, vol. 6, n.º 1, p. 144.36 As Catherine MacKinnon states, “domestic laws against CEDAW violations often exist but are not effectively enforced, such as those againt domestic violence; some are largely ineffectual by their design, such as laws against pornography”. MACKINNON, Catherine A., Are Women Human? And Other International Dialogues, Cambridge: The Belknap Press of Harvard University Press, 2006, p. 65.37 Communication No.: 2/2003, Ms. A. T. v Hungary (views adopted on 26 January 2005). The author of the communication, Ms. A.T., claimed to be a victim of a violation by Hungary of articles 2, 5 and 16 of the CEDAW. She had been subjected, for four years, to regular severe domestic violence and to serious threats by her husband, L.F., for four years. About this case see SOKHI-BULLEY, Bal, “The Optional Protocol to CEDAW: first steps”, Human Rights Law Review, 6(1), 2006, pp. 147 – 148.38 Article 8 of the Optional Protocol to the CEDAW.

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for the rights of women that demands cooperation and transparency from the States”39.

But this cooperation may not always exist, since an opt out clause exists in the sense

that each State, at the moment of acceding to the Optional Protocol, may declare that it

does not recognize the competence of the Committee provided for in articles 8 and 9.

None of the EU Member States has, until now, declared that it does not recognize the

referred competence of the Committee. But the Protocol has not yet been signed by

three EU Member States: Estonia, Latvia and Malta.

Article 29 of the CEDAW is an optional clause providing that disputes between

two or more State Parties concerning its interpretation or application may be referred to

the International Court of Justice. Reservations to this article are permitted, since it does

not belong to the Convention’s core provisions. Of the EU Member States only France

does not consider itself bound by this article.

Other mechanisms for enforcing and monitoring women’s rights that exist within

the United Nations system might as well be important when the procedures foreseen in

the Optional Protocol are not a useful tool to face grave and systematic violations of

women’s rights. For instance, the Commission on the Status of Women established by

the United Nations Economic and Social resolution 11(II) of 21 June 1946, is a global

policy making body that through its agreed conclusions on priority themes set for each

year, makes recommendations to the governments to be implemented at the national

level. Another entity dedicated to gender equality and advancement and protection of

women is the Special Rapporteur on violence against women and its causes and

consequences. Having been appointed by the United Nation’s resolution 1994/45,

adopted on 4 March 1994, he/she is requested to receive and seek information on

violence against women, to recommend measures (namely at the national level) to

eliminate it and to remedy its consequences. According to his/her mandate the Special

Rapporteur also has to transmit urgent appeals to the United Nations State Parties

regarding alleged cases of violence against women40.

A Gender entity was also created for the support of gender equality and the

empowerment of women as a composite entity that reports directly to the Secretary-

General by a Resolution adopted by the General Assembly of 20 October 2009. This

39 ISA, Felipe Gomez, “The Optional Protocol for the Convention on the Elimination of all Forms of Discrimination against Women: Strengthening the Protection Mechanisms, Arizona Journal of International and Comparative Law, vol. 20, n.º 1, 2003, pp. 291 ff.40 About the cases of violence against women ruled by international human rights bodies see EMERTON, R., ADAMS, K., BYRNES, A., and CONNORS, J., International Women’s Rights Cases, European Human Rights Law Review, 2006, 2, pp. 237 ff.

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Resolution supports the consolidation of several United Nations Offices in the field of

gender issues41.

Other communication procedures might, as well, be useful to assist the Committee

on the Elimination of Discrimination against Women’s on the identification of global

gender patterns of discrimination, although they are not specifically directed towards

gender issues. For instance, a State Party to the Convention against Torture and Other

Cruel, Inhuman or Degrading Treatment and Punishment, adopted in New York, on the

10th December 1984, may recognize the competence of the Committee against Torture

to receive communications from or on behalf of women subject to its jurisdiction who

claim to have been victims of violence42. The Committee shall receive these

communications and bring them to the attention of the State Party which is alleged to be

violating the referred Convention. Within six months, according to its article 22 (3), the

receiving State shall “submit to the Committee written explanations or statements

clarifying the matter and the remedy, if any, that may have been taken by that State”.

The Committee has also adopted General Comment n. 2, in January 2008, on the

implementation by the State Parties of the principles that undergird the Convention’s

absolute and non-derrogable prohibition against torture. In it the Committee emphasizes

that State reports should give specific and sufficient information the implementation of

the Convention in what concerns women43.

A similar solution can be found in the International Convention on the Elimination

of All Forms of Racial Discrimination adopted by General Assembly resolution 2106

(XX) of 21 December 1965. Women or groups of women within the jurisdiction of a

State Party to this Convention, claiming to be victims by that State Party of racial

discrimination, may complain to the Committee on the Elimination of Racial

Discrimination, a body of independent experts that monitors implementation of this

Convention. Within three months that State “shall submit to the Committee written

explanations or statements clarifying the mater and the remedy, if any, which may have 41 The offices are: the Special Adviser on Gender Issues and Advancement of Women, the Division for the Advancement of Women, the United Nations’ Development Fund for Women and the United Nations International Research and Training Institute for the Advancement of Women. 42 All the Member States of the European Union that are, as well State Parties to the CEDAW, have signed or ratified this Convention, and none has made a reservation to article 22, according to the information available at: http://treaties.un.org/pages/viewDetails (acceded on 5 January 2011).43 It considers that gender is a key factor, since:

“ Being female intersects with other identifying characteristics or status of the person such as race, nationality, religion, sexual orientation, age, immigrant status, etc., to determine the ways that women and girls are subject to or at risk of torture or ill-treatment and the consequences thereof. The contexts in which females are at risk include deprivation of liberty, medical treatment, particularly involving reproductive decisions, and violence by private actors in communities and homes.”

15

been taken by that State”44. The Committee adopted on March 2000 a General

Comment, General Comment n. XXV on gender related dimensions of racial

discrimination. Noting that racial discrimination does not always affect men and women

equally and that many times it is difficult to detect specially where there is no explicit

recognition of the different life experiences of men and women45, the Committee

decided to enhance its efforts to integrate gender perspectives, namely in its session

working methods an urgent action procedures.

A woman that is within the jurisdiction of a State Party to the Optional Protocol to

the International Covenant on Civil and Political Rights and that has been denied equal

protection of the law, and effective protection against discrimination on the grounds of

sex, may also submit a written communication to the Human Rights Committee. As in

some of the other referred situations, the Committee shall only consider the

communication if the women have exhausted all available domestic remedies and if the

same matter is not being examined under another procedure of international

investigation. If the Committee considers the communication admissible it shall be

brought to the attention of the State Party alleged to be violating the International

Covenant on Civil and Political Rights. Within six months that State shall “submit to the

Committee written explanations or statements clarifying the matter and the remedy, if

any”46 that it may have taken. But, as Manfred Nowak states, “the practice of individual

and inter-State communications before the UN treaty bodies is indeed not very

encouraging”47.

Sometimes it is difficult for a woman victim of a violation by a State Party of a right

set forth in the Covenant to exhaust all available remedies because, for instance, the 44 Article 14 of the International Convention on the Elimination of All Forms of Racial Discrimination. This Convention was signed or ratified by all European Union Member States.45 The Committee acknowledges, for instance, in this General Recommendation, that:

“Certain forms of racial discrimination may be directed towards women specifically because of their gender, such as sexual violence committed against women members of particular racial or ethnic groups in detention or during armed conflict; the coerced sterilization of indigenous women; abuse of women workers in the informal sector or domestic workers employed abroad by their employers. Racial discrimination may have consequences that affect primarily or only women, such as pregnancy resulting from racial bias-motivated rape; in some societies women victims of such rape may also be ostracized. Women may also be further hindered by a lack of access to remedies and complaint mechanisms for racial discrimination because of gender-related impediments, such as gender bias in the legal system and discrimination against women in private spheres of life.”46 Article 4 (2) of the Optional Protocol to the International Covenant on Civil and Political Rights adopted and opened for signature, ratification and accession by General Assembly resolution 2200 (XXI) of 16 December 1966. This international treaty has been signed or ratified by all European Union Member States, except for the United Kingdom of Great Britain and Northern Ireland.47 Within almost thirty years and in relation to more than 100 State Parties, these bodies have issued about 500 non-binding final decisions. NOWAK, Manfred, “The Need for a World Court of Human Rights”, Human Rights Law Review, vol. 7, n.º 1, 2007, p. 251.

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procedure following her application is unreasonably prolonged. As gender inequalities

may exist in accessing justice, and the High Commissioner for Human Rights

considered important to develop a gender sensitive administration of justice, a new unit

was created in 2006: the Women’s Human Rights and Gender Unit. The approach

adopted by this unit is to examine the formal justice mechanisms from a women’s

perspective, to see if they reflect the different experiences of women’s and men’s lives.

It has, for instance, commissioned a report on the prosecution of sexual violations in

conflict situations and of the economic and social rights whose enjoyment in those

situations is fundamental 48.

In case of war crimes or of crimes against humanity practised against women, if the

information made available to the Prosecutor provides a reasonable basis to believe that

a crime within the jurisdiction of the International Court has been committed, the Rome

Statute may be applied. For the purpose of this Statute “rape, sexual slavery, enforced

prostitution, forced pregnancy, enforced sterilization, or other form of sexual violence

of comparable gravity”49 are considered to be crimes against humanity. The

International Criminal Court that has the power to exercise its jurisdiction over persons

for the most serious crimes of international concern has already persecuted these gender

specific crimes. An example is that of Jean-Pierre Bemba, Vice-president of Democratic

Republic of Congo, who was arrested on May 2008, by the Belgium authorities, and

surrendered to the International Criminal Court on July 2008. He was accused of being

criminally responsible, for having effectively acted as a military commander, for war

crimes and crimes against humanity, namely of rape, which were committed during the

armed conflict that took place in the Central African Republic from 2002 to 200350.

48 SELLERS, Patricia Viseur, The Prosecution of Sexual Violence in Conflict: the Importance of Human Rights as a Means of Interpretation, available at: http://www2.ohchr.org/english/issues/women/ (5 January 2011).49 Article 7 (1) of the Rome Statute of the International Criminal Court that entered into force on 1 July 2002. All EU member States have signed or ratified it. About the use of the term “gender” in the Rome Statute, see OOSTERVELD, Valerie, “A Definition of ‘Gender’ in the Rome Statute of the International Criminal Court: a Step Forward or a Step Back for International Criminal Justice?”, Harvard Human Rights Journal, vol. 12, Spring 2005, pp. 56 ff. About crimes against women in the International Criminal Court see KOENINIG, Dorean M. and ASKIN, Kelly D., “International Criminal Law and the International Criminal Court Statute: Crimes Against Women” in Women and International Human Rights Law, vol. 2, (edited by Kelly D. Askin and Dorean M. Koenig), Transnational Publishers, New York, 2000, pp. 3 ff.50 As Jennifer Hyndman writes, about this issue, “people’s bodies are constructed as territory and become the sites of public violence on which symbolic constructions of the nation and its boundaries take place. The ruling that rape is a weapon of war, however, is significant because it publicizes sexual violence as a weapon of war.”. HYNDMAN, Jennifer, “Genocide and Ethnic Cleansing” in A Companion to Gender Studies (edited by Philomena Essed, David Theo Goldberg and Audrey Kobayashi), Oxford: Blackwell Publishing, 2005, p. 209.

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Women victims of inhuman or degrading treatment or of sex discrimination in the

enjoyment of the rights and freedoms set out in the European Convention on Human

Rights may as well apply directly to the European Court of Human Rights. Several

individual applications alleging violations of those rights and of the principal of sex

equality have been made by women during the last decades. The Court has decided, in

what concerns sex discrimination, in the case Abdulaziz, Cabales and Balkandali v. UK,

that equality of sexes is “one of the major goals in the Member States of the Council of

Europe” and that “very weighty reasons would have to be advanced before the

difference of treatment on the ground of sex could be regarded as compatible with the

Convention”51. The judgements of the Court are binding on the countries concerned and

may, as well, lead governments to alter their legislation and practices in the field of

sex/gender discrimination.

And although CEDAW covers more areas in what concerns gender equality (for

example, issues relating to family and to marriage) than, at least, the EU regulation

adopted before the entry into force of the Lisbon Treaty, the violation of the rights and

freedoms set force in it, can also be persecuted by the Court of Justice of the European

Union originally set up under the Treaty establishing the European Coal and Steel

Community in 1952.

6. Sex and gender equality in the EU

Achieving equality between women and men is also a specific purpose of the

EU, which has adopted, during the last fifty years, several instruments that ensure the

progressive implementation of the principle of equal treatment for both sexes.

The Treaty establishing the European Economic Community opened to signature in

Rome, in 25 March 1957, determined that the Community had, as its task, to promote

“(…) a harmonious development of economic activities, a continuous and balanced

expansion, an increase in stability, an accelerated raising of the standard of living and

closer relations between the States belonging to it”52. In order to achieve it the Member

51Case of Abdulaziz, Cabales and Balkandali v.The United Kingdom (Application no. 9214/80; 9473/81; 9474/81), judged in Strasbourg on 28 May 1985. About this case see RADACIC, Ivana, “Gender Equality Jurisprudence of the European Court of Human Rights”, The European Journal of International Law, Vol. 19, n.º 4, 2008, pp. 841 – 857.52 Article 2 of the Treaty.

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States agreed to cooperate in the social field, particularly in matters relating to labour

law and working conditions. To this end, Member States should endeavour to “ensure

and subsequently maintain the application of the principle that men and women should

receive equal pay for equal work”53. One Directive was adopted to implement this

principle: Council Directive 75/117/EEC of 10 February 1995 on the approximation of

the laws of the Member States relating to the application of the principle of equal pay

for men and women54. The following year another Directive was adopted in order to

achieve the principle of equal treatment for men and women, this time in respect of

access to employment and vocational training and promotion, and other working

conditions55. According to article 1, n. 2, of this Directive, the Council will adopt

provisions to ensure “the progressive implementation of the principle of equal treatment

in matters of social security”. This has been done through Council Directive 79/7/EEC

of 19 December 1978 on the progressive implementation of the principle of equal

treatment for men and women in matters of social security and through Council

Directive 86/613/EEC of 11 December 1986 on the application of the principle of equal

treatment between men and women engaged in an activity, including agriculture, in a

self-employed capacity, and on the protection of self-employed women during

pregnancy and motherhood. This principle was afterwards implemented in occupational

53 Article 119 of the Treaty. This article, which guarantees to woman and men the principle of equal pay for equal work, was included in the Treaty due to the economic necessity of maintaining uniform conditions of competition. With the Treaty of Amsterdam this article was replaced by article 141 of this treaty. With this new article, not only the principle of equal pay for male and female workers for equal work or work of equal value has to be applied in each Member State, but also any Member State shall not be prevented “from maintaining or adopting measures providing for specific advantages in order to make it easier for the under-represented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers”. To ensure full equality between male and female workers Member States can adopt policies of affirmative action. The European Court of Justice has ruled that national courts are required to interpret their national law as far as possible in the light of the wording and purpose of article 119 of the Treaty, for instance in Case C-50/96 (reference to the Court under Article 177 of the EC Treaty by Landesarbeitsgericht Hamburg, Germany, for a preliminary ruling in the proceedings pending before the Court between Deutsche Telekom AG and Lilli Schröder) and in Joined Cases C-270/97 and C-271/97 (references to the Court under article 177 of the EC Treaty by the Landesarbeitsgericht Niedersachsen, Germany, for a preliminary ruling in the proceedings pending before the court between Deutsche Post AG and Elisabeth Sievers and Brunhilde Schrage).54 The gender pay gap still persists 35 years later, being the risk of falling into poverty higher for women, specially when they are single parents or over 65 years old. COMMISSION OF THE EUROPEAN COMMUNITIES (2009), Report from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions Equality between Women and Man – 2009, Brussels, 27 February 2009. 55 Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions. This Directive was amended by Directive 2002/73/EC of the European Parliament and of the Council of 23 September 2002.

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social security schemes through Council Directive 86/378/EEC of 24 July 1986, this

Directive having been amended by Council Directive 96/97/EC of 20 December 1996.

Other directives also contribute to the effective implementation of the principle

of equal treatment for men and women, such as Council Directive 92/85/EEC of 19

October 1992 to encourage improvements in the safety and health at work of pregnant

workers and workers who have recently given birth or are breastfeeding56 and Council

Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal

treatment in employment and occupation57. Other measure developed to enable men and

women to reconcile their occupational and family obligations, and thus promoting equal

opportunities and treatment between both sexes, was the adoption of Council Directive

96/34/EC of 3 June 1996 on the framework agreement on parental leave concluded by

the general cross-industry organizations (UNICE, CEEP and ETUC)58.

To ensure that the measures taken by the Member States to implement this

principle are made more effective, other directives were adopted by the Council of the

European Union: Council Directive 97/80/EC of 15 December 1997 on the burden of

proof in cases of discrimination based on sex59, and Council Directive 2004/113/EC of

13 December 2004 implementing the principle of equal treatment between men and

women in the access to the supply of goods and services60.

The provisions of several of the above referred Directives were recast by the

bringing together in a single text of the main provisions existing in the field of the

implementation of the principle of equality for men and women as a fundamental

principal of European Union’s law. For this purpose Directive 2006/54/EC of the

European Parliament and of the Council on the implementation of the principle of equal

56 This Pregnant Workers Directive has, as Gillian More points out, a weakness: “(…) it seems to conceptualize pregnant women’s rights as special, exceptional rights, rather than represent them as an integral part of women’s equality”. See MORE, Gillian (1996), “Equality of Treatment in European Community Law: the Limits of Market Equality” in Feminist Perspectives on the Foundational Subjects of Law (edited by Anne Bottomley), London: Cavendish Publishing Limited, p. 270.57 The 4th recital in the preamble to this directive refers to the right of all persons to equality before the law and protection against discrimination as a universal right recognised, inter alia, in the CEDAW.58 This Directive was amended and extended to the United Kingdom of Great Britain and Northern Ireland by Council Directive 97/75/EC of 15 December 1997.59 This Directive was extended to the United Kingdom of Great Britain and Northern Ireland by Council Directive 98/52/EC of 13 July 1998. About the application of the mechanism for shifting the burden of proof in cases of discrimination see RORIVE, Isabelle (2006), “Situation Tests in Europe: Myths and Realities”, European Anti-Discrimination Law Review, n.º 3, April 2006, pp. 31 – 37.60 About this first Directive addressing gender equality issues outside the field of employment see BURRI, Susanne and PRECHAL, Sacha (2008), EU Gender Equality Law, Luxembourg: Office for Official Publications for the European Communities, pp. 13 – 14.

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opportunities and equal treatment of men and women in matters of employment and

occupation was adopted on 5 July 200661.

Meanwhile other texts were adopted in order to prevent any form of

discrimination on the grounds of sex: to protect the dignity of women and men at work,

the Council of the European Communities adopted a resolution, on 29 May 1990. The

European Parliament’s Resolution on the respect for human rights in the European

Union, adopted in 1995, considers that CEDAW “should be supplemented with an

optional protocol giving individuals and groups the right to bring complaints to court

(…)”62, and the Community Charter of the Fundamental Social Rights of Workers,

adopted in 1989, recognizes the importance of combating discrimination on grounds of

sex63.

In accordance with article 2 and article 3 (2) of the Treaty of Amsterdam amending

the Treaty on European Union, the Treaties establishing the European Communities and

certain related acts, as signed in Amsterdam, on 2 October 1997, equality between

women and man is a fundamental principle, proclaiming these Treaty provisions that it

is a “task” and an “aim” of the Community, that has a positive obligation to promote it

in all its activities. A new article, article 6 (a), inserted by this Treaty, allows the

Council to, under certain conditions, “take appropriate action to combat discrimination

based on sex (…)”. Equal opportunities and equal treatment of women and men in

matters of employment and occupation is specifically addressed by article 141 of this

Treaty. This article was replaced by article 13, amended by the Treaty of Nice, which

recognizes, as well, the Council’s competence to take appropriate action to combat sex

discrimination64.

Drawn on article 13 of the European Community Treaty, article 21 (“Non-

discrimination”) and article 23 (“Equality between women and men”) of the Charter of

Fundamental Rights of the European Union, solemnly proclaimed by the European

Parliament, the Council and the Commission, on 7 December 2000, also prohibit any

61 This Directive repeals, with effect from 15 August 2009, Directives 75/117/EEC, 76/207/EEC, 86/378/EEC and 97/80/EC. About the false consistency of these Directives that are, in many respects, open to considerable interpretation, see McCRUDDEN, Christopher, “Thinking About the Discrimination Directives”, European Anti-Discrimination Law Review, n.º 1, April 2005, pp. 7 – 21.62 N. 127 of the Resolution on respect for human rights in the European Union (1995).63 Paragraph 16 of this Charter provides that “action should be intensified to ensure the implementation of the principle of equality for men and women as regards, in particular, access to employment, remuneration, working conditions, social protection, education, vocational training and career development”.64 About this article see ALLEN, Robin, “Article 13 and the Search for Equality in Europe: an Overview”, in Article 13 Conference Documentation 3/4 December 1998 Vienna, Europaforum, Wien, p. 15 ff.

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discrimination on grounds of sex and require equality between women and men to be

ensured in all areas. Since the first of these articles avoids the explicit sexing of the

subjects it opens space for including sexual minorities, and so the Charter might help to

construct a more inclusive European citizenship65.

Article 2 of the Treaty on European Union, as amended by the Treaty of Lisbon,

signed at Lisbon, on 13 December 2007, also emphasizes non-discrimination and

equality between men and women as values that are common to the EU Member States.

The Treaty on the Functioning of the European Union that organizes the functioning of

the Union and determines the areas of its competences, refers, as well, to combating

discrimination based on sex on article 19.

Having as well regard to article 13(2) of the Treaty establishing the European

Community, and in order to promote gender equality, including gender mainstreaming

in all Community policies and the resulting national policies, the European Parliament

and the Council of the European Union adopted, on 20 December 2006, a Regulation

establishing a European Institute for Gender Equality66. This Institute has its seat in

Vilnius, and the number of representatives of the Member States on its management

board is determined according to specific rules laid down in an addendum to the

Regulation that established it67.

Beyond these binding measures, the EU has also developed a body of soft-law,

which seeks to persuade the Member States to adopt the principle of equal treatment

within their legal systems. An important example is the Commission Recommendation

on the Protection of Dignity of Men and Women at Work68, the European Parliament

Resolutions of 17 June 2010 on Gender Aspects of the Economic Downturn and

Financial Crisis, and of 7 September 2010 on the Role of Women in an Ageing Society.

65 About the re-reading of the Charter from a gender-sensitive perspective see BAER, Susanne, “Citizenship in Europe and the Construction of Gender by Law in the European Charter of Fundamental Rights” in Gender and Human Rights (edited by Karen Knop), Oxford: Oxford University Press, 2004, pp. 83 – 112.66 Regulation (EC) n.º 1922/2006 of the European Parliament and of the Council of 20 December 2006 on establishing a European Institute for Gender Equality. To promote cooperation between the bodies which have special responsibility in the Member States for promoting equality of opportunities for women and men, the social partners and the Commission, an Advisory Committee on Equal Opportunities for Women and Men was first established by Commission Decision 82/43/ECC of 9 December 1981. This decision was amended by Decision 95/420/EC of 19 July 1995.67 Decision taken by common agreement between the representatives of the governments of member states of 11 December 2006 on the location of the seat of the European Institute for Gender Equality and Addendum to Regulation (EC) n.º 1922/2006 of the European Parliament and of the Council of 20 December 2006 on establishing a European Institute for Gender Equality (Official Journal of the European Union L 403 of 30 December 2006).68 Commission Recommendation 92/131/EEC of 27 November 1991 on the protection of the dignity of women and men at work.

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The adoption of gender-related actions in order to fight against gender

inequalities is also recommended, for instance, in the European Parliament’s

Resolutions on Gender Equality and Women’s Empowerment in Development

Cooperation and on the Particular Situation of Women in Prison and the Impact of the

Imprisonment of Parents on Social and Family Life, both adopted on 13 March 200869.

Several European Parliament resolutions expressly mention CEDAW as the

legal basis of the provisions that they recommend. This happens, for instance, in the

European Parliament Resolution on Preventing Trafficking in Human Beings and with

European Parliament Resolution on Equality between Women and Men in the European

Union – 2009, both adopted on 10 February 2010. European Parliament’s Resolution of

25 February 2010 on Beijing +15 also considers necessary, in order to advance women’s

empowerment, gender equality and gender mainstreaming in Europe, to have in mind

the values emphasized in the CEDAW.

7. EU Case Law on Sex Equality

Besides all the above referred Treaty provisions and European Union legislation,

the case law of the European Court of Justice has also played an essential role in the

field of equal treatment between women and men. The principle of sex equality is, as

mentioned above, one of the most important principles of European Union’s Law and is

a part of its social policy. The European Court of Justice has consistently fought gender

discrimination and tried to achieve gender equality (formal and substantive) in the

European Union’s territory, addressing it under several approaches: as equal treatment,

as positive action, and as gender mainstreaming. Case law has addressed a large number

of problems relating to the application of the principle of gender equality by the member

states of the European Union. We shall only consider how, when addressing

discrimination claims, the Court uses concepts that can also be found in CEDAW, and

how greater gender equality can be achieved through that use.

For instance, in the Case Bilka Kaufhaus GmbH v. Veber von Hartz70, the Court

found that an apparently neutral practice would put women at a particular disadvantage

69 About the problem of how the criminal justice system affects incarcerated women and their children, see SHARP, Susan F. and ERIKSEN, M. Elaine, “Imprisoned Mothers and Their Children” in Women in Prison Gender and Social Control (edited by Barbara H. Zaitzow and Jim Thomas), Boulder: Lynne Rienner Publishers, 2003, pp. 119 ff.70 Judgment of the Court of 13 May 1986. - Bilka - Kaufhaus GmbH v. Karin Weber von Hartz. Case 170/84.

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when compared with men: the policy to grant an occupational pension scheme only to

full-time workers was contrary to article 119 of the Treaty of Rome, since a lower

proportion of women work full-time and the measure could not be objectively justified

by a legitimate aim.

Having found, in this first case, indirect discrimination on the grounds of sex, as

a consequence of individual practices by employers, the Court in the case Seymour-

Smith laid down the criteria to which national statutory employment provisions have to

comply with, in order not to be considered as leading to an indirect sex discrimination

situation. If a national court determines that a rule adopted by a Member State amounts

to indirect sex discrimination for the purposes of the above said article of the Treaty of

Rome, there is this kind of discrimination, “unless the measure is justified by objective

factors unrelated to any discrimination based on sex”71. Therefore, the Member State

who adopted that rule has to show that “the said rule reflects a legitimate aim of its

social policy, that that aim is unrelated to any discrimination based on sex, and that it

could reasonably consider that the means chosen were suitable for attaining that aim”72.

In order to establish whether a rule adopted by a Member State has disparate effect

between men and women to a degree that amounts to indirect discrimination, the

European Court of Justice has established these tests to find if provision in these cases

“is objectively justified by a legitimate aim, and the means of achieving that aim are

appropriate and necessary”73.

Indirect discrimination based on gender has recently been discussed in what

concerns equal treatment for men and women in matters of social security in the case

Sarah Margaret Richards v. Secretary of State for Work and Pensions74. Sarah Margaret

Richards is a transsexual who has undergone male-to-female reassignment surgery and

that was refused a retirement pension at the age of 60 on the grounds that she had not

yet reached the age of 65. She would have been entitled to that pension at the age of

71 Judgment of the Court of 9 February 1999. Regina v. Secretary of State for Employment, ex parte Nicole Seymour-Smith and Laura Perez. Case C-167/97.72 Judgment of the Court of 9 February 1999. Regina v. Secretary of State for Employment, ex parte Nicole Seymour-Smith and Laura Perez. Case C-167/97.73 Article 2 (1) of Directive 2006/54/EC of the European Parliament and of the Council of July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast).74 Judgment of the Court (First Chamber) of 27 April 2006 (reference for a preliminary ruling from the Social Security Commissioner) - Sarah Margaret Richards v Secretary of State for Work and Pensions. (Case C-423/04). It has also been discussed in another similar case: Judgment of the Court of 7 January 2004 (reference for a preliminary ruling in the proceedings pending before the court between K.B. and National Health Service Pensions Agency and Secretary of State for Health) in Case C-117/01.

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sixty if she had been considered a woman, according to national law. The Court ruled

that article 4 (1) of the above referred Council Directive 79/7/EEC of 19 December

1978, has to be interpreted as precluding such national legislation.

This anti-discrimination approach allows European Citizens to fight against

indirect sex discrimination situations that are not clearly and expressly foreseen in the

CEDAW, although it prohibits “any distinction, exclusion or restriction made on the

basis of sex which has the effect or purpose of impairing or nullifying the recognition,

enjoyment or exercise by women (…) of human rights”75.

The provisions in European Union legislation in the field of gender-based

positive discrimination measures and the judgments of the European Court of Justice

rooted on a positive action approach are important as well in order to ensure a

comprehensive and effective protection against gender discrimination. This approach is

also accepted by the CEDAW.

The possibility of Member States to adopt positive measures on behalf of

women, recognized in Council Directive 76/207/EEC, of 9 February 1976, was

confirmed by the Court in the case Marshall76. Also in Case Georg Badeck and Others,

on the interpretation of the same directive, the Court ruled, as well, that it did not

preclude a national rule which “in sectors of the public service where women are under-

represented, gives priority, where male and female candidates have equal qualifications,

to female candidates where that proves necessary for ensuring compliance with the

objectives of the women's advancement plan, if no reasons of greater legal weight are

opposed, provided that that rule guarantees that candidatures are the subject of an

objective assessment which takes account of the specific personal situations of all

candidates”77. The Court also considered that the referred Directive did not preclude a 75 Article 1 of CEDAW.76 Judgment of the Court of 11 November 1997 - Hellmut Marschall v Land Nordrhein-Westfalen - Case C-409/95. The European Court of Justice stated in Marshall that in case of equally qualified male and female candidates, priority should be given to female candidates:

“(…) even where male and female candidates are equally qualified, male candidates tend to be promoted in preference to female candidates particularly because of prejudices and stereotypes concerning the role and capacities of women in working life, and the fear, for example, that women will interrupt their careers more frequently, that owing to household and family duties they will be less flexible in their working hours, or that they will be absent from work more frequently because of pregnancy, childbirth and breastfeeding. For these reasons, the mere fact that a male candidate and a female candidate are equally qualified does not mean that they have the same chances”.77 Judgment of the Court of 28 March 2000 In Case C-158/97 (reference to the Court under Article 177 of the EC Treaty (now Article 234 EC) by the Staatsgerichtshof des Landes Hessen, Germany, for a preliminary ruling in the proceedings for a review of legality on an application by Georg Badeck and Others). Interveners: Hessischer Ministerpräsident and Landesanwalt beim Staatsgerichtshof des Landes Hessen, on the interpretation of Article 2(1) and (4) of Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to

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national rule whose objective is to eliminate under-representation of women or to secure

an appointment to a candidate who belongs to the under-represented sex in the cases

Abrahamsson78 and Lommers79.

The positive action approach to promote full gender equality in practice between

men and women in working life is currently is currently allowed by the New Equal

Treatment Directive, Directive 2006/54/EC of 5 July 2006 in article 3 (“Positive

action”).

The gender mainstreaming approach introduced by the Treaty of Amsterdam in

199780 and defined in the Communication from the Commission on Incorporating Equal

Opportunities for Women and Men into all Community Policies and Activities81, means

that the gender approach is systematically integrated from the beginning and

horizontally in all general or specific policies adopted by the European Union.

This approach has not yet (as far as we know) been referred to the European

Court of Justice Judgments. The Court has used the opposite approach in Case

Österreichischer Gewerkschaftsbund, Gewerkschaft der Privatangestellten v

Wirtschaftskammer Österreich82. In this case, it considered that it was not possible to

compare workers performing military service with women workers who, after their

maternity leave, take parental leave the duration of which is not taken into account for

calculating a termination payment. Therefore it concluded that “article 141 EC and

employment, vocational training and promotion, and working conditions.78 Judgment of the Court of 6 July 2000 in Case C-407/98 (reference to the Court under Article 177 of the EC Treaty (now Article 234 EC) by the Överklagandenämnden för Högskolan (Sweden) for a preliminary ruling in the proceedings pending before that court between Katarina Abrahamsson, Leif Anderson and Elisabet Fogelqvist on the interpretation of Article 2(1) and (4) of Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions.79 Judgment of the Court of 19 March 2002 in Case C-476/99 (Reference for a preliminary ruling from registered in the Member State of use reside or have a place of the Centrale Raad van Beroep). H. Lommers v Minister business there, in so far as it obliges a leasing undertaking van Landbouw, Natuurbeheer en Visserij.80 Article 2 of this Treaty amended article 3 of the Treaty establishing the European Community, adding a new paragraph to it:

“ 2. In all the activities referred to in this Article, the Community shall aim to eliminate inequalities, and to promote equality, between men and women.”81 Com (96) 67 final. According to this Communication gender mainstreaming means:

“(…) to promote equality between women and men in all activities and policies at all levels. This is the principle of "mainstreaming", a policy adopted by the Community, and attention was drawn to its crucial importance at the Beijing Conference. This involves not restricting efforts to promote equality to the implementation of specific measures to help women, but mobilising all general policies and measures specifically for the purpose of achieving equality by actively and openly taking into account at the planning stage their possible effects on the respective situations of men and women (gender perspective).”

82 Judgment of the Court of 8 June 2004 in Case c-220/02 (reference for a preliminary ruling from the Oberster Gerichtshof): Österreichischer Gewerkschaftsbund, Gewerkschaft der Privatangestellten v Wirtschaftskammer Österreich.

26

Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of

the Member States relating to the application of the principle of equal pay for men and

women do not preclude the calculation of a termination payment from taking into

account, as length of service, the duration of periods of military service or the civilian

equivalent performed mainly by men but not of parental leave taken most often by

women”. The Court considered that the fulfilment of military service is in the general

interest of society, but parental leave is not, and so a difference in treatment between a

man who had left his job because of military service and a woman who had done the

same because of caring duties was justified. This seems to show that the public/private

divide is still firmly rooted in the Court’s beliefs and remains a most troublesome

impediment to the full enjoyment of women’s rights and real life equality between men

and women. It also reveals a short-sighted vision of the public interest and family-based

care duties fulfilment. Critical scrutiny of the Court’s assumption in this case should be

brought to bear on the understanding of the shortcomings of EU policies on gender

equality.

Although most of the gender mainstreaming measures that have been adopted so

far by the EU are soft law measures, they may be important to challenge the gendered

power relations that structure the daily lives of many women and to complete and make

more effective the protection against sex discrimination given by the CEDAW.

8. Discrimination approach: CEDAW versus EU Law

A joint reading of all the CEDAW’s substantive articles indicates that the State

Parties have three main obligations in order to eliminate discrimination against women.

The first is the obligation to protect women from direct and direct

indiscrimination committed by public authorities or private organizations in public and

private spheres. To achieve this purpose the States have to ensure that there is no

negative unfair discrimination against women in their own domestic laws.

The EU Member States have the same obligation, as we have seen. It was first

required that all laws and regulations in those States as far as the labour market and

social security were concerned were free from sex discrimination. After the signature of

the Treaty of Lisbon on 13 November 2007, there is no doubt that the EU

discrimination law is in accordance with this first aim of the CEDAW.

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Secondly, State Parties to this Convention have the obligation to achieve not only

formal, but also substantive equality between women and men, taking in account not

only the biological differences, but also the culturally and socially constructed

differences between women and men. The EU legislation has so far tended to use a

definition for gender equality rooted in a social affairs perspective. But after the Treaty

of Lisbon entered into force, on 1 December 2009, equality between women and men

must be ensured in all areas. The adoption of affirmative action measures is allowed but

not mandatory under the EU’s legislation. As we saw, Member States “may maintain or

adopt” specific measures in favor of one if the sexes. The CEDAW’s wording is more

imperative: “State Parties shall take all appropriate actions” to ensure to women equal

rights with men in the fields of education, economic and social life, access to health care

services... The EU legislation also allows the maintenance or adoption of positive

discrimination measures “in favour of the under-represented sex”83. Therefore it allows

the adoption of this kind of measure in favour of men. That is not foreseen under the

CEDAW, which focuses only on discrimination against women, considering the

different forms of discrimination that they suffer because they are women.

The third obligation of the CEDAW State Parties is to eliminate the structural

discrimination against women, namely by fighting against gender based stereotypes that

affect women. Gender mainstreaming working in synergy with the empowerment of

women are, as well, present in EU’s legislation, policies and programmes in all areas

and at all levels. The implications of socially constructed differences between men and

women are assessed when designing, implementing and evaluating legislation and

policies adopted at the EU level. Once again, there is a difference in the nature of the

States duty – according to the CEDAW wording “shall take all appropriate measures” to

eliminate those stereotyped concepts of the roles of men and women. According to the

EU law the States only have to respect gender mainstreaming as a general principle.

Nevertheless the European Parliament the Parliament expressly condemns the major

role played by the media in creating and perpetuating gender stereotypes, and draws

particular attention to the need to eliminate from advertising, textbooks and toys,

messages which convey those stereotypes84.

Multiple discrimination against women (discrimination based not only on sex, but

also on race, age, economic situation, disability or other factor) is as well better 83 See, for example, article 23 of the Charter of the Fundamental Rights of the European Union.84 The European Parliament adopted on 3 September 2008, a non-legislative resolution on how marketing and advertising affect equality between women and men.

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addressed through the CEDAW than through EU legislation, since CEDAW covers

almost all spheres of women’s lives and imposes to the State Parties the adoption of

measures to eliminate any kind of discrimination against them, namely multiple

discrimination85. The other United Nations and Council of Europe referred texts on

equality may be a useful tool as well to eliminate these multiple forms of discrimination

that affect certain groups of women that live in Europe.

If all relevant international legal instruments concerning gender equality are fully

implemented by the Governments of the EU State Parties, women will be able to enjoy

their human rights and fundamental freedoms and substantive equality for women will

slowly be achieved.

9. Final Remarks

Almost all the CEDAW provisions are applicable in all the EU territory, since

all EU member States have signed and deposited their instrument of ratification of the

Convention with the Secretary-General of the United Nations. Therefore, each Member

State has to adopt the necessary measures to establish jurisdiction over the offences

referred to in this Convention86. According to several national Constitutions of EU

Member States the rules set out in duly ratified or passed international agreements shall

come into force in internal law once they have been officially published, and shall

remain so for as long as they are internationally binding on each State87. So, when

considering the problem of the application of the CEDAW in the EU’s territory, we

have to focus our attention on the reservations made by the State Parties.

Since nothing in the CEDAW shall affect the rights, obligations and

responsibilities of State Parties under international law, including international human

85 As Niamh Reilly writes, “CEDAW was na ambitious attempt to enshrine in international law a global commitment to women’s equality in all spheres of life, public and private”. REILLY, Niamh, Women’s Human Rights Seeking Gender Justice in a Globalizing Age, Cambridge: Polity Press, 2009, p. 4686 Article 24 of the CEDAW.87 See for instance, article 25 of the Basic Law for the Federal Republic of Germany promulgated on 23 May 1949, article 28 of the Constitution of Greece of 11 June 1975, article 96 (1) of the Spanish Constitution of 27 December 1978, and article 8 (2) of the Constitution of the Portuguese Republic of 2 April 1976.

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rights law88, and these States have to apply in their mutual relations, Community and

EU anti-discrimination rules, some of the above referred reservations may be indirectly

withdrawn by the full application of the provisions of these other international

instruments.

If we consider the remaining reservations that are incompatible with its core

provisions and compare them with the rights and obligations derived from other

international instruments to which the CEDAW State parties are Parties, and from EU

anti-discrimination law, we shall reach the conclusion that most of them are of no

practical effect.

There are still many problems to solve, when we think about the development of

women’s human rights. One of them is that the international human rights system lacks

an enforcement mechanism parallel to state law systems. The United Nations system is

grounded in a network of sovereign states and has no binding power beyond their

consent. Once approved, the CEDAW had to be submitted to the constituent states of

the United Nations for ratification and it only became internationally binding when a

sufficient number of those states had ratified it. Thus, the CEDAW became part of the

national legal systems of these states – by direct reception or through incorporation -

and its dispositions were enforceable by them. But many times this is not enough to

give strength and effectiveness to the human rights of women.

We may, as well, raise the question if the processes and norms of international

human rights law do not explicit gender-based biases that help perpetuating inequality

for women. As Christine Brautigam wrote about the impact of gender with regard to

conceptualization and enjoyment of women’s rights:

“The current understanding of international human rights norms largely reflects

men’s experiences, and perpetuates inattention to gender-specific abuses predominantly

suffered by women. (…) The prevalent emphasis on civil and political rights to the

disadvantage of economic and social rights perpetuates the systemic disadvantages

women face in access to economic resources and opportunities. Inheritance rights,

wages, pregnancy-related discrimination in access to, or at, work are areas where

women continue to face gender-based disadvantages”89.

88 According to article 23 of the CEDAW nothing in it “shall affect any provisions that are more conducive to the achievement of equality between men and women which may be contained (…) in other international convention, treaty or agreement in force for that State”.89 BRAUTIGAM, Christine Ainetter, “International Human Rights Law: The Relevance of Gender” in Human Rights of Women (editors: Wolfgang Benedek, Esther M. Kisaakye and Gerd Oberleitner), London: Zed Books, 2002, p. 23. The idea that the structure of the international legal order reflects a male

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A focus first on sex and now on gender, not just as difference, but as exclusion

and domination in the context of power, shows us that anti-discrimination laws are

necessary, but not sufficient, since the legal system has to be completed by social,

economic and cultural supports throughout all the EU’s territory.

As it is stated by Human Rights Watch,

“Our duty as activists is to expose and denounce as human rights violations those

practices and policies that silence and subordinate women. We reject specific legal,

cultural, or religious practices by which women are systematically discriminated

against, excluded from political participation and public life, segregated in their daily

lives, raped in armed conflict, beaten in their homes, denied equal divorce or inheritance

rights, killed for having sex, forced to marry, assaulted for nor conforming to gender

norms, and sold into forced labor…”90.

Engaged serious academic work is a form of intellectual activism. It is in this spirit

that this contribution has been thought and written.

perspective is also defended by CHARLESWORTH, Hilary, CHINKIN, Christine and WRIGHT, Shelley, “Feminist Approaches to International Law” in Feminist Legal Theory II: Positioning Feminist Theory Within the Law (editor: Frances E. Olsen), Dartmouth, Aldershot, pp. 621 ff. Also the approach to gender-equality indicators can be andocentric in the sense that it does not valorise the activities traditionally developed by women, which have been devalued by patriarchy. About this problem see HARRIS, Bernard, GÁLVEZ, Lina and MACHADO, Helena, “Gender and Well-Being from the Historical and Contemporary Perspective” in Gender and Well-Being in Europe Historical and Contemporary Perspectives (edited by Bernard Harris, Lina Gálvez and Helena Machado), Ashgate, Farnham, 2009, p. 1 ff. 90 WOMEN’S RIGHTS DIVISION, Human Rights Watch. Source: www.hrw.org/en/category/topic/women’s-rights (5 January 2010).

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