Practice Of The Gender Equality Principle example essay topic

INTRODUCTION: Recognition of gender equality into a principle that is part of CIL will have widespread impact, since all states will be internationally accountable for any discriminatory practices concerning gender. However although treaties, most notably CEDAW, tribunals, special rapporteur reports and judicial decisions suggest that gender equality has matured into a CIN, this norm has unfortunately not reached the status of CIL. Barriers such as cultural and religious practices, CEDAW inefficiencies and the amount of reservations which defeat the purpose of the CEDAW convention, suggest that there is no generality of state practise. The standards for ascertaining whether the gender equality principle has matured into CIL are the existence of Opinio Juris (what states are obliged to do) and state practice. Where there is a lack of state practice the maturation of the gender equality principle into CIL will be undermined. CUSTOMARY INTERNATIONAL NORM: Opinio Juris in this instance is the belief that the practice of the gender equality principle "is obligatory, rather than merely convenient or habitual" (p. 32) and thus is an essential component of customary international law.

Opinio Juris can also be inferred from repeated state practice. CEDAW, was the first convention to enumerate a broad range of specific rights. The CEDAW convention requests all party states to end all forms of discrimination against women in public life with regard to health and education, as well as equality before the law in marriage and family life. The purpose of CEDAW is to grant women the ability to exercise rights which are protected by human rights law. Furthermore, CEDAW has the membership of 165 party states. A large amount of ratification may suggest that gender equality has been given the recognition to become a CIL since the vast majority of states recognize the need for gender equality.

International human rights treaty bodies also have an influential role in the recognition of gender equality as CIL. For example the PCHRC, has made general comments, most notably No. 8 and No. 19 which dealt with issues of gender equality and the elimination of violence against women respectively. Recognizing the value of such comments, CEDAW subsequently recognized gender-base violence as a form of discrimination and urged party states to eliminate violence against women. Where such comments and general recommendations are adopted by more influential committees i.e. the CEDAW committee, which has some influence over international tribunals, such comments serve to enforce the standards the PCHRC stipulate.

The CEDAW Committee has made 24 recommendations, the last one being made at the 20th session in 1999. INTERNATIONAL JUDICIAL ENFORCEMENT AND NATIONAL LEGISLATION: International judicial enforcement of the principle of gender equality provides indications of whether gender equality has matured into a CIL. In the case of Shirin Aumeeruddy-Cziffra and 19 other Mauritian Women vs. Mauritius, the U. NHRC found that certain statutes discriminated against the Mauritian women unjustly. The case dealt with Mauritian citizenship where alien wives of Mauritian men were automatically granted Mauritian citizenship but the same did not apply for alien husbands of Mauritian women who had to file a request for citizenship which could be refused. Mauritius was found to have acted in contravention of the Political Covenant, of which Mauritius was a party. Similarly in the case of S.W. M Broeks vs. The Netherlands, the U. NHRC found the Netherlands to have discriminated against Broeks in requiring her to prove that she had been a "breadwinner" in order to receive unemployment benefits, where such a requirement contravened the Political Covenant.

Where HRC's have extended the obligations of states beyond their explicit treaty obligations it may be evidence to show that the gender equality principle has matured into CIL. National legislation also assists in identifying whether the gender equality principle has matured into CIL. Where states attempt to implement their obligations in their domestic laws, it provides evidence for the existence of Opinio Juris and the willingness of a state to practice the principle. Australia for example has implemented its obligations under CEDAW through the enactment of the Sex Discrimination Act 1984. PRIVATE ACTORS: "Intimacy and privacy are no longer justifications for the non-intrusion of the state.

It is important that hierarchy within the family be challenged and equalized, and that victims of violence within the home be given access to redress". CEDAW also places affirmative duties on the state to prevent the discrimination against women by private actors, since the health of women is equally in danger from husbands, employers and Brothel owners etc. The issue of private actors was raised in the leading case of Velasquez Rodriguez (V), It was found that the national security units of Honduras had carried out the disappearance of V under the cover of public authority. Thus Honduras was deemed to have violated its obligations under the American Convention on Human rights to "respect the rights and freedoms of persons, and to ensure the full exercise of those rights", under Article 1 (1). In X & Y vs. The Netherlands the ECHR found the Netherlands to have violated Article 8 of the European Convention which recognized the respect for women in private and family life... The case concerned the son-in-law of a nursing home director who had sexually assaulting a mentally handicapped sixteen year old female patient.

Although a gap in the Dutch law disallowed the state from interfering in private matters, the European Court nonetheless extended the obligations of the state of Netherlands to protect gender equality in the private realm. BARRIERS TO CIL: Although there is widespread recognition of the gender equality principle, as evidenced through the large amount of ratification, judicial decisions and treaty obligations, state practice serves to hinder its transformation into CIL. Firstly, reservations serve to undermine the applicability of the CEDAW convention. The CEDAW convention is one of the most heavily reserved conventions. Although it is not uncommon for states to make reservations, but reservations which defeat the object and purpose of a treaty serve to seriously undermine the commitment of a state to the principle of gender equality.

Many Islamic countries have posited reservations to the requirements set out under CEDAW which are not compatible to religious law. It is also argued that women's rights are relative to culture, where they may be more recognized in some cultures and less recognized in others. Iraq for example has entered reservations with regard to Article 2, where Iraq will only apply the provisions provided that they do not conflict with the Iraqi family code. Most significantly it has reserved Article 16 by stating that its obligations under it "shall be without prejudice to the provisions of the Islamic Shari'a law". Iraq has made numerous reservations together with many other Islamic countries to preserve Shari'a law, which preserves sex stereotyping. The commitment of states to comply with the provisions set out under CEDAW are called into question when reservations are made, furthermore when these reservations defeat the object and purpose of the convention and such a large amount of reservations are made state practice is scrutinized.

Where the CEDAW convention establishes only one mechanism for the enforcement of issues, the effectiveness of CEDAW may be limited. Inefficiencies may include enormous delays in evaluating reports, furthermore when states fail to report in a timely fashion, CEDAW may not have enough time to evaluate each report. Although the need for other enforcement mechanisms are paramount, the negative ramifications are somewhat mitigated by the work of the Committee. The committee comprised solely of women takes a proactive approach in investigating violations but is more inclined to investigate violations by affected groups filing complaints against states.

Violations by certain states on individuals are rarely investigated since the committee lacks sufficient technical and financial support, and as such governments may become more skeptical about responding to the committee. Unfortunately the committee is also somewhat ineffective. Article 5 of the CEDAW convention regulates social and cultural patterns of conduct within the public and private sphere, however where cultural behaviour is patterned on religious beliefs, a state may feel reluctant to curtail such behaviour. Such state inactivity will conflict with the principle forbidding discrimination. EXAMPLES OF STATE PRACTISE: State practice in some countries is influenced by religious and customary practices which have been in place for many years. In many Islamic countries the requirements of purdah (veiling and seclusion of women) and confinement to the home excludes women from participating in the same political, social and economic forums men participate in.

Although Muslim women have been given access to educational, political and public circles, there still lie some hindrances to complete equality with men. The Shah Bono case, was once instance where state action without religious approval was ineffective. The case concerned a Muslim man who was liable to make maintenance payments to his Muslim wife. Although he did not have to make the payments under personal law he had to make payments under the Criminal Law provision of India. The Indian Supreme Court ruled in favour of the Muslim wife which was met with dissatisfaction from India's Muslim community.

Ultimately the Supreme Court passed the Muslim women's Act which made the divorced woman's family responsible for her maintenance payments. The case is indicative of the force religious law can take in resisting secular interpretation of the Qu " ran, where religious rights were prioritized over women's rights. Furthermore it was an instance where women's rights had to give way to the realities of pluralism. Chinese culture also provides evidence that gender equality has not yet matured into CIL. As the decisions made by the Chinese government are impulse driven, gender equality for women is volatile. For example the Chinese government granted women the right of divorce when its ultimate aim was to dissolve arranged marriages.

Once this goal was achieved women no longer had the right to divorce simply on the basis of dissatisfaction with the marriage. Furthermore in the 1950's China began to implement procedures for rural women to join the workforce. However when it was realized that the unemployment levels of men had risen due to a lack of service driven industries women were displaced from the workforce and returned to work in the home. Extreme examples of the violation of women's reproductive autonomy were evident to protect collective interests. Extreme procedural practices such as infanticide, enforced sterilization and forced abortion have been implemented to gradually reduce China's ever increasing population although enforced sterilization is a crime against humanity under Article 7 (1) (g) of the ICC statute. China has argued that birth-control measures are not to be considered as measures of enforced sterilization and consequently a compromise has been met.

This compromise is stated under Article 8 (2) (b) (xxii) and (e) (vi) of the ICC statute, and states that genuine consent from the party being sterilized is needed. Consent obtained through deception will not suffice. CONCLUSION: The maturation of gender equality into a CIL would provide additional protection for women since all states would comply with the gender equality principle as well as feel obligated to comply (Opinio Juris). Although Opinio Juris is evidenced throughout the world by the progressive efforts made by states, tribunals, committees and judicial decisions, state practice ultimately hampers the gender equality principle from being part of CIL. Although only two examples of state practice were discussed above, the examples are indicative of the discriminatory practices made by many other states globally. Due to the vast amount of reservations and cultural and religious barriers there is still a large amount of resistance in adopting the gender equality principle.

These barriers ultimately prevent the gender equality principle from being part of customary international law.