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INTERNATIONAL LAWS FOR THE PROTECTION OF WOMEN'S RIGHTS
A brief historical overview shows that the United Nations promoted instruments relating specifically to the rights of women such as 1951 Convention on Equal Pay for Equal Work of Men and Women, 1952 Convention on the Political Rights of Women. However, the most systemic instrument is the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).
To reflect on the importance of the recognition of the rights of women, the Vienna Declaration and Program of Action at the World Conference on Human Rights, Vienna establishes that:
The human rights of women and of the girl-child are an inalienable, integral and indivisible part of universal human rights...and the eradication of all forms of discrimination on grounds of sex are priority objectives of the international community
On this basis, the following are the most important instruments for the advancement of human rights:
1. Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)
The Convention was adopted by the General Assembly in 18 December, 1979 and entered into force on 3 September 1981. CEDAW is composed of a Preamble and 36 Articles that establish different measures to be adopted by the States and by specific private parties in order to ensure the recognition and expansion of the principle of non-discrimination.
In the Preamble, it provides that States Parties affirm the main goal of the Convention by declaring they are “determined to implement the principles set forth in the Declaration on the Elimination of Discrimination Against Women and, for that purpose, to adopt the measures required for the elimination of such discrimination in all its forms and manifestations”.
On this basis, the Convention defines discrimination against women as 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.
Article 2 of CEDAW provides that the States Parties agree to pursue a policy of eliminating discrimination against women by all appropriate means and without delay. Article 3 of CEDAW provides that the States parties shall ensure the full development and advancement of women for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men.
Basically, the Convention covers three situations of women. They are the civil and legal status of women, the reproductive rights of women, and the impact of cultural factors on restricting the enjoyment of women's fundamental rights.
In respect to reproduction right and the impact of cultural factors, the preamble of the Convention provides that the role of women in procreation should not be a basis for discrimination. Also, Article 4 provides that temporary special measures by states parties to attain de-facto equality between men and women shall not be considered discrimination. However, Articles 5 provides further that states parties shall take appropriate measures to modify the social and cultural patterns of conduct of men and women that are based on inferiority, superiority or stereotypes roles of men and women; and the proper understanding of maternity as a social function, as well as common responsibility of men and women in the upbringing and development of their children. Article 6 also provides for the suppression of all forms of traffic in women and exploitation of prostitution of women.
Article 10(2) and 16 also provides for the elimination of stereotyped concepts in the field of education, and the equal rights of women in marriages and property respectively.
The legal status of women also receives the broadest attention. Article 7 provides for the rights of women to vote, to hold public office and to exercise public functions while Article 8 provides for the equal rights of women to represent their countries at the international level.
Conjunctively, Articles 10-13 provides that states parties shall shall take all appropriate measures to eliminate discrimination against women in education, employment, health care and economic and social activities.
However, these demands are given special emphasis with regard to the situation of rural women, whose particular struggles and vital economic contributions, as noted in Article 14, warrant more attention in policy planning. Thus, Article 15 asserts the full equality of women in civil and business matters, demanding that all instruments directed at restricting women's legal capacity ''shall be deemed null and void".
The implementation of the Convention is monitored by the Committee on the Elimination of Discrimination against Women (CEDAW). The Committee's mandate and the administration of the treaty are defined in the Articles 17 to 30 of the Convention. The Committee is composed of 23 experts nominated by their Governments and elected by the States parties as individuals "of high moral standing and competence in the field covered by the Convention".
At least every four years, the States parties are expected to submit a national report to the Committee, indicating the measures they have adopted to give effect to the provisions of the Convention. During its annual session, the Committee members discuss these reports with the Government representatives and explore with them areas for further action by the specific country. The Committee also makes general recommendations to the States parties on matters concerning the elimination of discrimination against women.
Also, the Commission on the Status of Women created a Working Group for the purpose of finding solutions to strengthen the protection mechanisms for women's rights. As a result, the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women was developed and ratified in October 1999.
2. MAPUTO PROTOCOL
The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, also known as the Maputo Protocol guarantees comprehensive rights to women, and most especially the end to female genital mutilation in Africa. As a regional instrument, it sets a stronger legal basis for the regional protection of women’s rights. The Maputo Protocol was adopted in 2003 and came into force in 2005. 41 countries have ratified it as at early 2018. The African Commission on Human and Peoples’ Rights oversees implementation of the Maputo Protocol.
Article 1 of the Protocol defines Discrimination against women as any distinction, exclusion or restriction or any differential treatment based on sex and whose objectives or effects compromise or destroy the recognition, enjoyment or the exercise by women, regardless of their marital status, of human rights and fundamental freedoms in all spheres of life.
It also defines Violence Against Women as all acts perpetrated against women which cause or could cause them physical, sexual, psychological, and economic harm, including the threat to take such acts; or to undertake the imposition of arbitrary restrictions on or deprivation of fundamental freedoms in private or public life in peace time and during situations of armed conflicts or of war.
The Maputo Protocol contains several provisions that provides for the rights of women, and they can be categorised into:
a. Equality & non-discrimination
Article 2 provides that States Parties shall combat all forms of discrimination against women through appropriate legislative, institutional and modify the social and cultural patterns of conduct through public education and communication strategies in order to eliminate harmful cultural and traditional practices that are based on the idea of the inferiority or the superiority of either of the sexes, or on stereotyped roles for women and men.
Article 8 and 9 guarantees women's right to equal access to justice and protection before the law, and equal participation in political life of their countries respectively.
Also, Article 12 guarantees women's right to equal opportunity and access in the sphere of education and training.
b. Protection against violence
Article 3 provides that every woman shall have the right to dignity that is inherent in human being and to the recognition and protection of her human and legal rights, including free development of her personality, protection against exploitation, degradation and all forms of violence. In the same vein, Article 4 guarantees the right to respect for life, the integrity and security of person.
Article 5 condemn all forms of harmful practices which negatively affect the human rights of women and which are contrary to recognised international standards, including all forms of female genital mutilation.
c. Rights relating to marriage
These rights are provided under Articles 6 and 7 which provide that States Parties shall ensure that women and men enjoy equal rights and are regarded as equal partners in marriage and the separation, divorce or annulment of marriage, and also, determines issues such as the minimum age, nationality, registration of marriages etc.
d. Rights relating to peace
Article 10 provides that Women have the right to a peaceful existence and the right to participate in the promotion and maintenance of peace.
e. Health and reproductive rights
Article 14 provides that States Parties shall ensure that the right to health of women, including sexual and reproductive health is respected and promoted. These rights includes, right to control their fertility; the right to decide whether to have children, the number of children and the spacing of children; the right to contraception and sexual protection. Also, the state parties shall provide adequate and affordable health services and facilities in this respect.
f. Economic, social and cultural rights
The economic, social and cultural rights are expressly provided under Articles 13-19 which includes economic and welfare rights, right to food security, right to adequate housing, right to positive cultural context, right to a healthy and sustainable environment and development, right to property, access to land and credit.
g. Protection of women in armed conflicts
Article 11 provides for the protection of women who are asylum seekers, refugees, internally displaced in armed conflict and the punishment of all violators of such protection. It also protects children, especially girls from participating directly in hostilities or being recruited as soldiers.
h. Rights of specially protected women’s groups
Articles 20-24 provides that widows shall enjoy all human rights and shall not be subjected to inhumane and degrading treatment, and shall have the right to an equitable share in the inheritance of the property of her husband. It also provides for special protection and non-discrimination of elderly women and women with disabilities, and women in distress.
i. Remedies
Article 25 provides that States Parties shall provide for appropriate remedies to any woman whose rights or freedom have been violated.
3. THE DIFFERENCE BETWEEN LEGAL EQUALITY AND DEFACTO EQUALITY
In the context of gender issues, De-jure equality refers to the existence of legislation that recognizes women's rights as equal to men. These can be found in constitutional provisions, legislation, and government policies. WHILE Defacto equality refers to the representation of dejure equality in the material world. These are practices that exist in reality, even though they are not officially recognized by laws. For example, discrimination can stem from both de-jure law and defacto practice
For example, the CEDAW Convention recognizes and addresses both de-jure and de-facto discrimination, whether contained in laws, policies, procedures, or practice. Article 2 of the Maputo Protocol reaffirms the responsibility to ensure de-jure and de-facto gender equality for their signatories, which is, in fact, the document's main goal.
THE DIFFERENCE BETWEEN OPT-IN AND OPT-OUT CLAUSE IN AN INTERNATIONAL INSTRUMENTS
In international laws and conventions, an opt-out clause allows a country to choose not to be bound by a particular provision or treaty obligation. Conversely, an opt-in clause requires explicit consent or action for a country to be bound by the provision or treaty obligation. Essentially, opt-out means default inclusion unless explicitly rejected, while opt-in means default exclusion unless explicitly accepted.
