Essay CEDAW article 5 a

Professor Anne Hellum

1. Introduction

CEDAW article 1 – object and purpose

* De jure and de facto discrimination

* Equality of result – real equality

• Article 5a

• Sees gender as socially constructed

• Assumes cultural perceptions embedded in religion, customs and popular beliefs and ideologies create, uphold and reinforce spills over into the legal sphere – formal laws, interpretation, application and implementation

• Informed by cross-cultural research documenting how women in different societies and cultures are ascribed inferior status

Introduction continued

• The World view of all monotheistic religion are bsed on stereotypical and hieracic constructions of gender relations – christianity, judaism, catholisism, Islam and hindu

• Spills over in formal law:

* Example Irland’s constitution and the prohibitions against family planning that derives from it. Philipines the same

* Pakistan and Islamic country – Muslim Family Law Ordinance – unequal divorce rights

* Norway – the gender equality act used make an exemption for inner religious affairs

* Codified customary laws – for example inheritance law in Tanzania

Article 5a – and 2 f

* culture, including religion:

– seen as a dynamic and changeable construct like gender – assumes that legal interventions can change culture

* ”appropriate measures” to ”modify or eliminate” 2 f)

- Legislation – if direct discrimination in law

- Policy – FGM – what kind of interventions –not lead to stigmatizaion/racial discrimination

(Denmark’s use of 24 year marriage age for family reunion – CEDAW critique

Article 5a 2 f

National sovereignty, national values – good family values – closely linked to gender values –state often resist change in these areas with reference to culture and religion – also make reservations

Dialogue – the CEDAW Committee engages in dialogue – seeks to bring Civil society and state together. See concluding comments to Nigeria

(from deadlock to dialogue)

• Protocol to the African Charter – right to positive culture!

Implication for interpretation of direct

discrimination – CEDAW and also other

conventions

*Direct discrimination (embedded in article 1)

Laws and practice that submit women to disadvantage (comparator not needed in CEDAW)

*Stereotypes often at the root direct discrimination

• Cases where CEDAW has been invoked:

• The ACE case in Norway

• The Unity Dow case in Botswana

* Pakistani case law from High Court

* Nepal Supreme Court, inheritance case

• Cases dealing with stereotypes, CEDAW not explicitly invoked

* The Lovelace case

* The Behe case

Indirect discrimination

1 a (effect). Neutral law leading to difference in result – not objectively justified, reasonable and proportionate

Labour market – Bilka case – sterotypes underlying Bilka’s pension scheme.

* Also see CEDAW Committee’s concludingin comment to Germany on the same issue!!! Norway..

Land/property rights – see CEDAW general recommendation emphasizin that domestic and productive work be put on an equal footing. Stereotype men’s productive work is values women’s repdoductive and domestic not..

- Laws and practices that define monetary contribution as the sole criteris of acquiring property rights – article 16

- Customary norms linking ownership for example to clearing that is a male activity – overlooking women’s engangement with land.

Indirect

Health/sanitation – girls assumed to be less intelligent than boys – but missed school because of menstruation and lack of infrastr.

Measure - infrastructure

Structural discrimination

5 a and f – empowers CEDAW committee to address structural discrimination relating to stereotypes in concluding observations and rulings in individual complaints.

Structural discrimination

The Vertido case CEDAW invokes 5a in the assessment of the guidelines of the Supreme court . IT also makes recommendations related to change in guidlines

The CEDAW committee’s comment to Germany’s national report – relating to the working condition of part time workers as based on stereotypes – male breadwinner woman domestic

Structural article 4, 1

Temporary special measures a means of rectifying sturctural inequalities where women have been excluded from equal participation due to stereotypes underlying upbringing, recruitment etc. etc..

Qotas in politics

Quotas in land allocation – example Zambia and also Zimbabwe

Quota’s in labour market more restictied due toobjectivity, reasonability and proportionality