Human of human rights within the UN

Human rights spell out essential standards
which enable individuals to live peacefully, with dignity, in freedom, and to
enjoy justice and equality.1Within
the human rights discourse, women’s rights have increasingly been
conceptualised as human rights in order to address the historic disadvantage
which women to this present day still experience.2
Already the Preamble to the United Nations (UN) Charter 1945 affirms “the equal rights of men and women.”3The
preamble and Articles 1-2 of the Universal Declaration of Human Rights (UDHR)4 ,
the preamble and Article 2 of the International Covenant on Civil and Political
Rights (ICCPR)5
, as well as the preamble and Article 2 of the International Covenant on Economic
Social and Cultural Rights (ICESCR)6
all affirm the principles of equality and non-discrimination.7

 

Articles 1-2 of the UDHR affirm that
everybody is equal and free and that all human beings, irrespective of sex, are
entitled to the freedoms and rights which the Declaration spells out. Moreover,
the State Parties to these Covenants are required to ensure that men and women
are treated equally, so that they can enjoy all the political, civil, social,
economic and cultural rights.8

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The
Commission on the Status of Women

 

Within the UN system, the Commission on
the Status of Women (CSW) was created within the Economic and Social Council
(ECOSOC) and in 1946, the CSW became recognised as an independent entity.9
The CSW’s main functions are to “prepare recommendations
and reports to the Economic and Social Council on promoting women’s rights in
the political, economic, civil and educational fields” and to provide
recommendations “on urgent problems requiring immediate attention in the field
of women rights.”10In
1946, the United Nations Commission on Human Rights was formed in order to
safeguard important rights and many decisions and resolutions and statements
about important topics have been issued by this body.11
In 2006, the Commission was replaced by the Human Rights Council by the General
Assembly resolution 60/251. The establishment of the Human Rights Council has
frequently been heralded as the “dawn of
a new era” for the protection and promotion of human rights within the UN
system.12As
part of the reform of the Commission, an “institution-building
package” was adopted, which includes a Universal Periodic Review mechanism
in order to determine human rights adherence in UN member states.13A
complaint procedure enables organisations and individuals to alert the Council
to human rights breaches.14

 

The
Convention on the Elimination of Discrimination Against Women (CEDAW) 

 

Specialised instruments have been adopted,
most notably the Convention on the Elimination of All Forms of Discrimination
Against Women 1979 (CEDAW).15The
CEDAW explains what discrimination against women denotes and spells out a
roadmap for domestic action, so that discrimination against women is
eradicated.16Over
the last forty years, gender equality norms have thereby been globally created
and gender issues have been highlighted within the international human rights
regime.17Nonetheless,
there exists no universalism, as some state parties enter reservations. There
also exists some “margin of appreciation”
in order to realise pluralism.18This
also makes it more difficult to achieve that women all over the world can evoke
the same equality and non-discrimination guarantees.19

 

The CEDAW has also generated activism
within the non-governmental sector.20This
is also because Article 7(c) of the CEDAW provides that :
“States Parties shall take all
appropriate measures to eliminate discrimination against women in the political
and public life of the country and, in particular, shall ensure to women, on
equal terms with men, the right: …To participate in non-governmental
organizations and associations concerned with the public and political life of
the country.”

This provision has ensured that the
convention has become associated with the local experience of women, which has
facilitated domestic policy development.21
Hence, the CEDAW articles spell out normative and theoretical devices to
challenge patriarchal and religious customs and traditions and to also combat
neoliberal mistreatment of women.22Yet
there still exists a large chasm between theory and practice and the assurance
of de facto and de jure equality requires more than just legal reform.23Nonetheless,
research has found that the CEDAW has a “statistically
significant and positive effect on women’s rights”, particularly in respect
of political rights for women.24However,
it is wrong to simply assume “a global-to-local
flow of norms.”25
It is for this reason that it is important to conduct research in order to
critically analyse the impact which major international conventions have had on
women empowerment.

Moreover, a CEDAW Committee was created in
1982.26This
Committee is composed of twenty-three experts. Meetings take place twice a
year. The Committee prepares Concluding Comments, which provide recommendations
and highlight concerns. Since the Committee started its work, it has analysed
the reports from many governments and has determined to what extent the CEDAW
has been transposed at the domestic level.27Non-governmental
organisations (NGOs) also provide shadow reports to the CEDAW Committee, so
that the Committee is furnished with additional information and gains a more
holistic picture to enable the Committee to challenge and question governments.28However,
research has found that states often only comply to some extent with the CEDAW
recommendations, which highlights that there exist formidable obstacles in
affording women their human rights.29

 

Additionally, in countries which have
ratified the Optional Protocol to the CEDAW, individual complaints can be
lodged under Article 2 and the CEDAW Committee can then undertake an inquiry,
as provided for under Article 9.30The
United Nations Human Rights Committee initially ensured that the ICCPR is
implemented by State Parties, which are required to furnish reports on a
regular basis and the Committee then scrutinises each country report and issues
Concluding Observations which make recommendations and address concerns.31The
Committee on Economic, Social and Cultural Rights (CESR) is responsible for
monitoring that the ICESCR is implemented by State Parties.32This
Committee was created by virtue of ECOSOC Resolution 1985/17 on 28 May 1985 and
took over the work of the Sessional Working Group, which has resulted in more
attention being paid to economic, social and cultural rights.33Like
the United Nations Human Rights Committee, the Committee provides Concluding
Observations in respect of each report it deals with and the reports inform to
what degree ICESCR rights are safeguarded by a State Party and point out
whether particular rights have been breached.34This
dialogue strengthens the advancement of the respective rights, as it puts
pressure on states to adopt these recommendations and to address any
highlighted issues. Both the ICCPR’s Human Rights Committee and the ICESCR’s
Committee also issue general comments, which ensure that the substantive
content of the various rights is clarified.35

Yet despite sexism being already denounced
by the UDHR in 194836and
the adoption of various international and regional instruments37
designed to promote the realisation of women’s civil, political, economic,
social and cultural rights, women still face gender discrimination in many
countries around the world.38
For instance, in many Afro-Asian countries, women still experience sexism
due to conservative values and discriminatory domestic legislation.39

 

The
relationship between women rights and religion, tradition, values and culture
has also been heatedly debated and has caused controversy. For example, it is
generally thought that Sharia law and women rights contradict each other.40The
Sharia is often an important legal source, particularly in respect of women’s
rights, e.g. in the area of family law, and states are unwilling to adopt a
secular legal regime for women rights, so that Islamic law governs. 41
However, not only Islam does have an impact on rights, but also the economic
and political situation and other issues.42Mashhour
states that Islam and human rights cannot be reconciled not because of Islam,
but because of patriarchy and that it is therefore not possible to find “a common ground…between Islamic law and
gender equality.”43
Mir-Hosseini believes that this is because “patriarchy
is justified and upheld in the name of Islam” and which results in women
being treated like second-class citizens.

 

1E. H. Lawson, M. L. Bertucci, Encyclopedia of Human
Rights (2nd ed, Washington, DC, Taylor & Francis 1996) 227

2 United Nations Economic and Social Commission for Asia
and the Pacific, Promoting Women’s Rights as Human Rights (New York, United
Nations 1999) 114

3 Also see R. K. M. Smith, Text and Materials on
International Human Rights (3rd ed, Abingdon, Routledge 2013) 522; J. Morsink,
‘Women’s rights in the Universal Declaration’ (1991) 13 Human Rights Quarterly,
229-256, 229

4 Universal Declaration of Human Rights (adopted 10
December 1948 UNGA Res 217 A(III) (UDHR)

5 International Covenant on Civil and Political Rights
(adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171
(ICCPR) 6 International Covenant on Economic, Social & Cultural Rights
(adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3/
1976 ATS 5 /

6ILM 360 (ICESCR)

7 E. Brems, C. Van der Beken, S. A. Yimer, Human Rights
and Development: Legal Perspectives from and for Ethiopia (Leiden, Brill
Nijhoff 2015) 367

8 Ibid

9 ECOSOC Resolution establishing the Commission on the
Status of Women, E/RES/2/11, 21 June 1946 accessed 15th May 2016; A. Aharoni,
Peace, Literature, and Art – Volume II, Encyclopaedia of Life Support Systems
(Washington DC, United Nations Educational, Scientific and Cultural
Organization 2009) 167

10 Ibid

11 United Nations Human Rights, Office of the High
Commissioner, United Nations Commission on Human Rights, 2016 accessed 2nd
February 2016

12 J. Wouters, S. Basu, N. Bernaz, ‘The Role of the
European Union in the Human Rights Council’, Study for the European Parliament,
November 2008, iv

13 United Nations Human Rights Office of the High
Commissioner, United Nations Human Rights Council, 2016 accessed 12th February
2016

14 Ibid

15 N.2

16 Convention on the Elimination of All Forms of
Discrimination against Women Adopted and opened for signature, ratification and
accession by General Assembly resolution 34/180 of 18 December 1979, entered
into force on the 3rd of September 1981. United Nations Treaty Collection,
Convention on the Elimination of All Forms of Discrimination against Women,
Chapter IV, Human Rights, UN, Treaty Series, Vot. 1249, at 13; see also E.
Brems, C. Van der Beken, S. A. Yimer, Human Rights and Development: Legal
Perspectives from and for Ethiopia (Leiden, Brill Nijhoff 2015) 367

17 S. Zwingel, From intergovernmental negotiations to
(sub)national change, 7(3) International Feminist Journal of Politics 2005,
400-424, 400

18 J. Resnik, Comparative (in)equalities: CEDAW, the
jurisdiction of gender, and the heterogeneity of transnational law production,
10(2) International Journal of Constitutional Law (2012) 531-550, 531

19 Ibid

20 N.11

21 Ibid

22 F. Raday, Gender and democratic citizenship: the
impact of CEDAW, 10(2) International Journal of Constitutional Law 2012,
512-530, 512

23 Ibid

24 N. A. Englehart, M. K. Miller, The CEDAW Effect: International
Law’s Impact on Women’s Rights, 13(1) Journal of Human Rights 2014, 22-47, 22

25 S. Zwingel, How Do Norms Travel? Theorizing
International Women’s Rights in Transnational Perspective, 56(1) International
Studies Quarterly 2012, 115-129, 115

26 Article17 of the CEDAW; see also Combat Poverty
Agency, Conference Papers: Having Your Say: Strengthening the Policy Voices and
Practices of People in Poverty, A National Conference, Dublin, 28th November
2005, 3

27 M. McPhedran, S. Bazilli, M. Erickson, A. Byrnes, The
First CEDAW Impact Study, Final Report, Released during the Twenty-Third
Session of the CEDAW Committee, New York, June 2000, International Women’s
Rights Project, 2000, 1-16, 12 accessed 4th March 2016

28 Ibid

29 R. J. A. McQuigg, The Responses of States to the
Comments of the CEDAW Committee on Domestic Violence, 11(4) The International
Journal of Human Rights 2007, 461-479, 461

30 Optional Protocol to the Convention on the Elimination
of All Forms of Discrimination Against Women, adopted by General Assembly
resolution A/54/4 on 6 October 1999, United Nations, opened for signature on 10
December 1999, entered into force 22nd December 2000, Treaty Series, vol. 2131,
p.83; see also E. Y. Krivenko, Women, Islam and International Law: Within the
Context of the Convention on the Elimination of All Forms of Discrimination
Against Women (Leiden, Martinus Nijhoff Publishers 2009) 206

31 Article 40(4) of the ICCPR; G. Alfredsson, J.
Grimheden, B. G. Ramcharan, International Human Rights Monitoring Mechanisms:
Essays in Honour of Jakob Th. Moller (2nd ed, Leiden, Martinus Nijhoff
Publishers 2009) 36

32 ECOSOC Resolution 1985/17 of 28 May 1985 to carry out
the monitoring functions assigned to the United Nations Economic and Social
Council (ECOSOC) in Part IV of the Covenant; see also I. Merali, V. Oosterveld,
Giving Meaning to Economic, Social, and Cultural Rights (Philadelphia,
University of Pennsylvania Press 2001) 46

33 Ibid

34 Ibid

35 Ibid

36 Articles 2 and 16 of the Universal Declaration of Human
Rights 1948; J. Morsink, Women’s rights in the Universal Declaration, 13 Human
Rights Quarterly 1991, 229-256, 229

37 For example, the Convention on the Elimination of all
Forms of Discrimination against Women 1979 (CEDAW), 18 December 1979, United
Nations, Treaty Series, vol. 1249, p. 13; Article 14 of the European Convention
on Human Rights, as amended by Protocols Nos. 11 and 14, 4 November 1950, ETS
5; Article 2(1) of the International Covenant on Civil and Political Rights
(ICCPR), 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171;
Article 2(2) of the International Covenant on Economic, Social and Cultural
Rights (ICESC), 16 December 1966, United Nations, Treaty Series, vol. 993, p.
3; the Cairo Declaration on Human Rights in Islam, 5 August 1990; the Arab
Charter on Human Rights, May 22, 2004, reprinted in 12 International Human
Rights Reports 893 (2005), which entered into force on 15 March 2008 all outlaw
sex discrimination and thereby affirm the principle of non-discrimination
between men and women.

38 3 United Nations Women, Discrimination against women
persists around the globe hampering development, UN Women Press Release, 5 July
2012 accessed 6th February 2016

39 L. E. Schroeder, The Rights of Muslim Women in the
Middle East: A Pathfinder, 37(1) International Journal of Legal Information
2009, 135-165, 136

40 J. Hursh, Advancing Women’s Rights Through Islamic
Law: The Example of Morocco, Berkeley Journal of Gender, Law & Justice
2012, 252-306, 254

41 Ibid, 255

42 D. E. Arzt, The Application of International Human
Rights Law in Islamic States, 12(2) Human Rights Quarterly 1990, 202-230, 202

43 A. Mashhour, Islamic Law and Gender Equality: Could
There be a Common Ground?: A Study of Divorce and Polygamy in Sharia Law and
Contemporary Legislation in Tunisia and Egypt, 27(2) Human Rights Quarterly
2005, 562-596, 562 51 Z. Mir-Hosseini, Muslim Women’s Quest for Equality:
Between Islamic Law and Feminism, 32(4) Critical Inquiry 2006, 629-645, 629