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The UN Convention on the Elimination of All Forms of Discrimination against Women and Positive Actions for its Implementation / by Sun-uk Kim / KWDI Research Reports / Women's Studies Forum. Vol.9 / December 1993
* This paper is the condensation of the 1993 Research Report 200-2 by the
KWDI research team Han Jung-ja, Kim Sun-uk, Kim Won-hong, Kim Young-hye,
and Kim Dong-ryung.
Kim Sun-uk(Senior Researcher, KWDI)
I. INTRODUCTION
Eight years have passed since “the Convention on the Elimination of All
forms of Discrimination against Women” which was adopted by UN in 1979 was
promulgated as Act No.855 in our country. In the meantime, our government
submitted its 1st & 2nd national reports to “the UN Committee on the
Elimination of Discrimination against Women” which is an international
organization to supervise implementation of the above mentioned Convention
in each country, and the 2nd report was taken under deliberation at the
12th UN Committee on the Elimination of Discrimination against Women held
at the end of January 1993. However, our country still exhibits little
understanding of this Convention, and the government has not made positive
policies for its implementation.
This Convention is ‘a normative expression of UN policy for women’ for
eliminating all forms of discrimination in political, social, and cultural
areas under the basic recognition that discrimination against women not
only violates the principles of the equality of rights and respect for
human dignity, but also hampers the growth of the prosperity of society and
the family. In particular, it emphasizes the fact that the maternity is
socially significant, and that the upbringing of children requires a
sharing of responsibility among men and women and society as a whole. As of
January 1993, the number of nations that had ratified this Convention
reached 118, and these participant nations should follow this Convention as
a basic guideline for their policy of equality between men and women. It
means that the nations that ratified this Convention have promised to throw
their state-level efforts into eliminating legal and actual discrimination,
and that they have a duty both to try to eliminate obstacles to the
realization of equality and to promote equality by implementing positive
measures.
Accordingly, for the purpose of improving knowledge about the concept and
contents of the UN Convention of the Elimination of Discrimination and
calling for the State Parties' duty to implement this Convention, the
research has studied the positive measures for eliminating discrimination
which were adopted by many States to realize euqality in the formal sector
toward implementation of the Convention(Note : KWDI(1993), Refer to A Study
on Measures for Elimination of Discrimination against Women in the Formal
Sector of Each Country-Concerning Implementation of the UN Convention on
the Elimination of Discrimination against women.).
In this treatise, the UN Convention on the Elimination of Discrimination
against Women and positive actions for its implementation as a means for
the elimination of discrimination will be taken under legal deliberation,
and actual cases of major positive actions taken by each State will be
discussed. Here, we intend to contribute to raising understanding about the
UN Convention on the Elimination of Discrimination against Women and to
urging States as responsible parties to this Convention to establish
positive measures for implementation as a state policy.
II. THE UN CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION
AGAINST WOMEN
1. Background of the UN Convention
A. Protection of Human Rights and Equality between Sexes by the United
Nations
The United Nations, which was born for the dignity of human beings and the
peace of the world in 1945, has since its inauguration continuously put its
efforts into safeguarding human rights and realizing equality between both
sexes in the international sphere by various kinds of conventions and
declarations such as the Charter of the United Nations; the International
Declaration of Human Rights; the Convention on the Political Rights of
Women(1952); the convention on the Nationality of Married Women(1957); the
Convention of prevention of Trade in Human Life and Prostitution by
Cheating(1949); the Convention on consent on Marriage, the Minimum Age for
Marriage, and Marriage Registration(1962); and the Convention on Maternity
Protection(1952); and the conventions and recommendations related to ILO
such as the Convention on Night Work(1948), the Convention on the Equal
Wage(1951); the Convention on Prohibition of Discrimination in
Education(1960); and the International Regulations on Economic, Social, and
Cultural Rights(1966)(Note : R diger Wolfrum(Hrsg.), Handbuch Vereinte
Nationen, Verlag C. H. Beck, 1991, S. 169ff.).
If we review the development process of UN international regulations on
women, we find that there were many female protective conventions which
stated prohibition on women doing heavy labor such as night work, mining
labor and so on according to the principle that it was not appropriate for
women to do such hard work. Later, having revised and supplemented all
regulations concerning immediate matters peculiar only to women such as
changing nationality by marriage, and trade in human life, and as
originating from traditional women's status and custom, the UN has played a
role in the development of conventions from the correctional ones aimed at
the improvement of women's legal status to non-discrimination ones like the
UN Convention on the Elimination of Discrimination against Women(Note :
Hwang Young-chae(1991), “The Equality between Men and Women Guaranteed by
the International Law,” A Book of Treatises Collected to Celebrate
Professor Bae Kyung-sook's 60th Birthday, p. 953.).
The protective conventions are based on the fixed view on women which does
not think of women and men on an equal level. In other words, the premise
that women, whose physical conditions are disadvantageous to themselves
compared to men's, should be protected by means of legal prohibitions on
women's heavy labor stems from the discriminatory view in which women's
potential ability and women's judgemental ability are not acknowledged. On
the other hand, correctional conventions are the same as the protective
provisions in the sense that women's living conditions should be protected,
but these conventions attempt correction by revising the conventional laws
and other laws. The non-discriminatory conventions pay attention to the
realization of legal equality and actual equality by eliminating inequality
on the basis of the ideology of equality.
The UN Convention on the Elimination of Discrimination against Women is
the very non-discriminatory convention in which the UN policy of equality
between the sexes is reflected best.
B. Establishment of the Convention
The UN Convention on the Elimination of All Forms of Discrimination
against Women was established as one of the major projects of the UN Decade
for Women, along with the proclamation of the ‘UN Decade for Women’ from
1976 to 1985. This followed the ‘International Women's Year’ promulgated
in 1975 on the basis of various kinds of UN conventions and declarations,
such as the Charter of the United Nations, a number of the other general
conventions reflecting the UN's spirit of defending human rights in
different sectors of society, the conventions on women's rights, and the
Declaration on the Elimination of Discrimination against Women in 1967.
The introduction of this Convention in which the reasons and purposes for
adopting it are expressed reminds us of the fact that the Charter of the
United Nations, the Declaration of Human Rights, the Convention of
Management of Human Rights and a number of the other UN resolutions have
developed from the ideology of non-discrimination on the basis of sex, but
nonetheless calls our attention to the fact that discrimination against
women still continues. In fact, this Convention was adopted 12 years after
the 1967 Declaration on the Elimination of Discrimination against Women.
While the Declaration reflects abstract credos which stress legal equality,
this Convention contains a concrete call for real equality for the purpose
of expediting the realization of equal rights between men and women by
beans of abolishing all kinds of differentiations, exclusions, or
restrictions based on sex that hamper women's human rights and basic rights
in all sectors of society, such as politics, economics, society, culture,
and education.
The draft of this Convention was in the process of preparation by the
Commission on the Status of Women(CSW) since 1970. Unlike the conventional
and Western society-oriented ways of thinking, in this Convention, the
developing nations' positions are taken into consideration. This is a
non-discriminatory convention based on the ideology of equality and it is a
Magna Carta for women as well. This convention was adopted by the 34th UN
General Assembly and took effect in 1981 when 20 nations ratified it
according to Article 27 of the Convention.
C. UN Convention on the Elimination of All Forms of Discrimination against
Women and Implementation of the Nairobi Forward-looking Strategies(NFLS)
The contemporary policy on women by the United Nations is concentrated on
the regulational UN Convention on the Elimination of Discrimination against
Women and the Nairobi Forward-looking Strategies(Note : In order to
evaluate and review the UN Decade for Women, the 3rd World Conference on
Women was held in Nairobi in 1985. At this conference, strategies for
women's development towards the year 2000 containing 372 provisions was
adopted as future strategies for improvement of women's status from 1986
until 2000, and it is named Nairobi Forward-looking Strategies in short
form(For more details, refer to KWDI(1986), A Reference Collection for UN
Decade for Women, p. 143)). In other words, the NFLS recommend an action
frame work in which the Convention can be implemented in each nation(Note :
RS/CEDAW/1992/WP.2/Rev.1.).
The UN Convention on the Elimination of Discrimination against Women has
the binding force of international law. In order for all member nations to
realize equality between men and women in all social sectors, the UN
Committee on the Elimination of Discrimination against Women, recommends
ratification of the Convention to the nations which have not done so, and
the withdrawal of reservations by those which ratified it with some
reservations. It also supervises all the nations toward implementation of
the Convention. With regard to the NFLS, advocating realization of equality
between men and women through the cooperation of the international society,
the UN Commission on the Status of Women must implement it.
At the 4th World Conference on Women to be held in Peking in 1995,
comprehensive evaluation and review on implementation of the NFLS will be
conducted. Now, many conferences related to its preparation are projected
in different regions of the world.
Accordingly, the UN, centering around the UN Committee on the Elimination
of Discrimination against Women in connection with the UN Commission on the
Status of Women, is trying to realize an equal society in which the UN
Convention is completed in reality, in cooperation with the related UN
organizations such as ILO, UNESCO, and UNDP maintaining a reporting system
to the UN Economic and Social Council and the UN General Assembly(Note :
KWDI(1991), The United Nations' Projects on Women.).
2. Status of Ratification of the Convention
As of January 1993, 118 States had ratified this Convention; that is the
international document ratified by the greatest number of States in the
shortest time. This could be seen as an expression of the international
will for realization of women's rights of equality(Note : On the Status of
Ratification, see KWDI(1993), p. 233.).
In the case of Korea, the Letter of Ratification for this Convention was
submitted on December 27, 1984, and this Convention was promulgated as
Treaty No. 855 on January 7, 1985, becoming effective from January 26,
1985. At that time, the legal effectiveness of Article 9 and Clause (c),
(d), (e), (f) of Article 16, Paragraph 1 were reserved. These reservations
were relinquished but Article 9(Note : It is an article on the rights of
equality in the cases of obtaining, changing, and maintaining women's
nationality and the children's nationality.) and Clause (f) of Article 16,
Paragraph 1(Note : It is the article on the right to chose family name.) on
March 15, 1991 owing to the amendment of the Family Law.
This Convention guarantees that the State Parties can keep its interests
as mush as possible so that it allows the States to have reservations based
on special conditions of each state. Accordingly, as of 1990 when 104
States were the participants of this convention, 23 States in fact reserved
the legal operation of 88 Articles, and this Convention is one of the
conventions which has the most reservations.
However, it is very problematic to use the reservations in order to reject
implementation of the goal and purpose of this Convention against its basic
purpose, and there are number of controversies going on this subject. For
example, a lot of States including Korea reserve Article 16, which is a key
of this Convention. The reservation of this article reflects the patriarchy
of the society and is contrary to Article 5 because it means that society
with this reservation admits a fixed concept of sex roles. Also, denial of
women's domestic, social, and economic significance is often revealed in
the Family Law of the State and becomes an obstacle which exerts great
influences upon women's status in opposition to the goal and purpose of the
Convention.
As a result, if a State Party reserves the legal effectiveness on the
fundamental and substantial provisions, it means that, by giving only
formal ratification, the State would falsify the legal, political, and
social effectiveness rather than be restricted by the Convention.
For this reason, the UN Committee on the Elimination of Discrimination
against Women actively recommends that each State with reservations repeal
those reservations.
3. Duty of the States Parties
That a State ratifies this Convention and becomes a participant means
showing the political will that the State agrees with the purpose of the
Convention and will exert all state-level efforts for the attainment of
real equality in order to realize an egalitarian society. Therefore, it is
very difficult for each State to ratify the Convention which such a
political will.
Each State which becomes a participant in the Convention should take
actions to improve its various domestic laws and regulations in such a way
to meet the intent of the convention, and at the same time aim to realize
equality for women as soon as possible. Therefor, the Convention becomes
the means of improvement as such efforts of the government will serve as
incentives to change the society.
In other words, the State which has ratified the Convention has a duty to
treat women on the same footing as men in every area prescribed in the
Convention.
It means that the State agrees to expedite the policy of eliminating
discrimination against women by all proper means. Therefore, each State has
to take actions for such things as abolition of discriminative laws,
elimination of obstacles to actual realization of equality, improvement of
equality by positive measures, and elimination of judgements based on the
inferiority and/or superiority of each sex : i.e, personal manners, custom,
prejudice, and traditional practice. In order to implement this Convention
completely, a State may need to amend the national constitution or to enact
new laws, and another state may need reform in its administration.
Each State can take the most appropriate measures in such a way to meet
the level of development, culture, and its own social structure. What
ratification means is that the State is responsible both for the principle
by which the State must recognize the dignity and worth of all citizens and
for the abolition of discrimination which restricts especially women's
enjoyment of human rights and basic freedom.
Thus, the binding force of the Convention, just like international law,
strengthens the State's political will for improvement of women's status
within its nation. Also, the State has a duty to submit a government report
on legal, administrative, and other measures taken to implement the
Convention of the basis of Article 18 t0 the UN Committee on the
Elimination of Discrimination against Women(herein after referred to as
UNCEDAW).
In 1986, Korea submitted the first National Report(Note : Refer to the
Ministry of Political Affairs(2)(1990), UN Convention on the Elimination of
Discrimination against Women-the First and Second Report, Policy Reference
90-7.), which was taken to the deliberation of the 6th UNCEDAW in 1987. The
Second National Report submitted in 1989 was deliberated on at the 12th
UNCEDAW in January 1993.
4. Major Content of the Convention
This Convention demands all the State Parties to take proper measures to
eliminate all kinds of discrimination against women in political, economic,
social, cultural or any other fields under the basic perceptions that
discrimination against women is against human dignity and hampers the
growth of the prosperity of society and the family; and that maternity is
socially significant, and the upbringing of children requires a sharing of
responsibility between men and women and society as a whole. This
Convention consists of an Introduction and five parts of 30 Articles :
Articles 1 to 16 are substantial regulations and Articles 17 to 30 deal
with the progress made in the implementation of the Convention.
In Article 1 the term “discrimination against women” is defined and from
Articles 2 to 6 State parties' duties are dealt with. Articles 7 to 16
state not only the regulations regarding women's political, social, and
civil rights, and the right to choose nationality, and women's ability to
exercise legal actions, but also State Parties' legal duty to take all
appropriate measures to eradicate all the actual obstacles-prejudice,
customs, attitude, and practices-to equality for realization of these
rights on equal terms between both sexes, and to take positive actions to
ensure the application of the provisions of this Convention to realize
equality.
Now, we would like to review the contents of this Convention centering
around the major provisions stated for the elimination of discrimination
against women.
A. Definition of “Discrimination against Women”(Article 1)
In Article 1 this Convention defines the term ‘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.”
B. States parties' Duties : Devising Positive measures
Through the provisions on States parties' Duties stated in Article 2 and
below, this Convention manifests that every State Party is responsible for
ensuring women's equal rights by law in all spheres of life. It emphasizes
the necessity for adoption by states parties of temporary special measures
aimed at accelerating de facto equality between men and women. Also, it
demands States parties to adopt special measures to modify the social and
cultural structure that allows maintenance of discrimination, and clearly
states that these positive measures shall be discontinued when the
objectives of equality of opportunity and treatment have been
achieved(Article 4 Paragraph 1).
This Convention allows its interpretation and application in the most
appropriate ways to the social and cultural structure of each State under
the premise that the States Parties will stick to the principle that it
will not discriminate by sex. On the basis of the purport of this
Convention, each State Party should try to repeal discriminatory laws and
regulations and to adopt positive measures aimed at actual elimination of
discrimination so that the present unequal conditions and structures
disadvantageous to women can be changed for improvement of women's
status(Article 4).
The appropriate measures that States Parties should undertake for
elimination of discrimination against women are as follows :
(1) To embody the principle of the equality of men and women in their
national constitutions or other appropriate legislation and to ensure the
practical realization of this principle through law and other appropriate
means (Article 2 Clause (a));
(2) To adopt appropriate legislative and other measures, including
sanctions where appropriate, prohibiting all discrimination against
women(Article 2 Clause (b));
(3) To establish legal protection of the rights of women on an equal basis
with men and to ensure through competent national tribunals and other
public institutions the effective protection of women against any act of
discrimination(Article 1 Clause (c));
(4) To refrain from engaging in any act or practice of discrimination
against women and to ensure that public authorities and institutions shall
act in conformity with this obligation (Article 2 Clause (d));
(5) To take all appropriate measures to eliminate discrimination against
women by any person, organization or enterprise (Article 2 Clause (e));
(6) To take all appropriate measures, including legislation, to modify or
abolish existing laws, regulations, customs and practices which constitute
discrimination against women (Article 2 Clause (f));
(7) To repeal all national penal provisions which constitute
discrimination against women (Article 2 Clause (g));
(8) To take, in all fields, all appropriate measures, including
legislation, to ensure the full development and advancement of women, for
the purpose of guaranteeing them exercise and enjoyment of human rights and
fundamental freedoms on a basis of equality with men (Article 3);
(9) To modify the social and cultural patterns of conduct of men and
women, with a view to achieving the elimination of prejudices and customary
and all other practices which are based on the idea of the inferiority or
the superiority of either of the sexes or on stereotyped roles for men and
women (Article 5 Clause (a));
(10) To ensure that family education includes a proper understanding of
maternity as a social function and the recognition of the common
responsibility of men and women in the upbringing and development of their
children, it being understood that the interest of the children is the
primordial consideration in all cases (Article 5 Clause (b));
(11) To take all appropriate measures, including legislation, to suppress
all forms of traffic in women and exploitation of prostitution of women
(Article 6).
C. Women's Equal Rights in Every Field
With regard to women's civil and legal status in every field, this
Convention contains such provisions that demand States Parties to take
appropriate measures to ensure to women, on equal terms with men and
without any discrimination, the rights in political and public life
(Article 7), the rights to participate in the international
organization(Article 8), the rights of nationality(Article 9), the rights
of education(Article 10), the rights in the field of employment(Article
11), the rights in health care(Article 12), economic and social
rights(Article 13), various kinds of rights relating to rural life(Article
14), women's legal capacity(Article 15), and rights relating to marriage
and family relations(Article 16).
D. Women's Rights in Childbirth
This Convention puts stress on the recognition of maternity as a social
function and demands a sharing of responsibility for the upbringing of
children between men and women.
Particularly in Article 4, it is clearly stated that special measures
aimed at protecting maternity are not considered as discrimination, and the
protection of maternity and upbringing children are considered as basic
rights and mentioned in every related field such as employment, family,
health, and education. According to Article 10, the States Parties have an
obligation to provide information and advice on family planning by means of
education programs. In Article 11 it is stated that the States Parties
should establish childcare facilities in order to help women to combine
family obligations with participation in public life, and in Article 16
that women have rights to decide freely and responsibly on the number and
spacing of their children.
E. Relation to Social and Cultural Factors
This Convention pays attention to social and cultural factors that
restrict the enjoyment of women's basic rights. On the one hand, it admits
the culture and tradition of each country. On the other hand, it has
provisions with regard to the need for changing fixed ideas, customs, and
traditions of each country that hamper the practice of women's rights.
In its introduction, it is stated “that a change in the traditional role
of men as well as the role of women in society and in the family in needed
to achieve full equality between men and women.” Also, in Article 5, this
convention demands that each State eliminates the prejudices, customary and
all other practices based on either the idea of the inferiority or the
superiority of either of the sexes or the fixed patterns of roles of men
and women.
With regard to the fixed ideas on sex roles, it recommends the revision of
textbooks(Article 10), and regarding the role of men and women it states
the equal responsibility between men and women in the provisions relating
to such subjects as family life(Article 6), education(Article 10), and
employment(Article 11).
5. UN Committee on the Elimination of Discrimination against Women
A. Status
This committee was established on the basis of the UN Convention on the
Elimination of Discrimination against Women and is an independent
organization that is not controlled by either the Economic and social
Council or the UN General Assembly. It is different from the UN Commission
on the Status of Women, which is a functional committee of the Economic and
Social Council(Note : R diger Wolfrum(1991), a.a.O., S.173.).
Because the United Nations disburses the salary of the committee members
and the expenses required for accomplishing its tasks, it is under the
control of the UN General Assembly for its budget. The convenience of the
employees of this Committee is provided by the Division for the Advancement
of Women which belongs to the Center for Social Development and
Humanitarian Affairs within the UN Secretariat in Vienna. It also has
cooperative relations with UN professional organizations like ILO, UNESCO,
WHO, and FAO.
B. Constitution and Committee Members(Article 17)
The Committee consists of twenty three experts including a chair, two
deputy-chair and one reporter. The experts shall be elected by States
Parties from among their nationals with consideration being given to
equitable geographical distribution and to the representation of the
different forms of culture as well as the principal legal systems.
The chair of the Committee, the deputy-chairs, and the reporter shall be
elected for a term of two years and the otehr members of the Committee for
a term of four years. They receive remuneration from the United Nations,
but serve in their personal capacity.
In the process of electing the Committee members, the States Parties
nominate experts of high moral standing and competence in the field dealt
with by the Convention, and then secretary-general of the United Nations
shall convene a meeting of States parties. At that meeting, for which two
thirds of the States parties shall constitute a quorum, the persons elected
to the Committee shall be nominees who obtain an absolute majority of the
votes of the representatives of States parties present and voting.
Presently, the members of the Committee are all women(Note : Refer to
KWDI(1993), p.27 for the list of the members of the Committee.).
C. Function and Task
1) Consideration of State Reports
The committee is an organization that considers the progress made in the
implementation of the Convention, and it has a right to consider the
reprots submitted by the States Parites. The consideration of State Reports
by the Committee is a system to ensure to make the provisions of the
convention into effect.
Established in 1982, the meetings of the Committee have been held annually
at the United Nations Headquarters or at other places like Vienna as
determined by the Committee. The meetings of the Committee had been held
twelve times by the year of 1993. As of January 1993, it considered the
first reports of 69 States Parties, the second reports of 29 States
Parties, and the third report of 2 States Parties. So far, it has published
the first and second volumes of the report on consideration of the State
reports for the periods of 1982∼85 and 1986∼87(Note : UN(1989), The Work
of CEDAW, Volume Ⅰ; UN(1990), The Work of CEDAW, Volume Ⅱ.). Also, there
is a unpublished drafts for the period of 1988∼92(Note : UN(1988),
A/43/38;UN(1989), A/44/38;UN(1990), A/45/38;UN(1991), A/46/38;UN(1992),
A/47/38.).
In the first consideration of a State report, the Committee mainly points
out the problems in the process of implementing the Convention. However, in
the cases of the States parties, particularly developing countries, that
have many problems in implementing the Convention, the Committee would
advise them to correct the incomplete parts by subsequent consideration of
the State report rather than by criticizing them. In the second
consideration of the State report, much weight is placed on the measures
which had been adopted by the States Parties since the first consideration
plus actual progress in implementing the provisions of the Convention. From
the 10th meeting of the Committee(1991), on, the number of considerations
of the second States reports has increased in comparison with that of the
first States reports(Note : Refer to KWDI(1993), p.28 for the state of
consideration on the State reports.).
2) Rights of Suggestion and Recommendation, and Duty of Reporting
(Article 21).
a) This committee, to offer effective implementation of the Convention,
may make suggestions and general recommendations based on the examination
of reports and information received from the States Parties.
By this time, the number of the general recommendations that this
Committee determined as effective in implementing the provisions of the
Convention reached to twenty. Among them, there are important
recommendations; for example, the recommendations related to the
consideration of reports(Recommendation 1,2,3,4,11, etc.); the
recommendations on the practice of temporary special measures like priority
treatment of women, quota systems, and positive measures to improve the
integration of women in the fields of education, economy, politics,
employment and so on(Recommendation 5); the recommendations on the
establishment of effective States organization and strengthening their
functions(Recommendation 6); recommendations on expanding the opportunity
for women's participation in international organizations(Recommendation 8);
recommendations on elimination of reservations on the
Convention(Recommendation 20)(Note : Refer to op. cit., p.220).
b) The Committee shall report annually to the General Assembly of the
United Nations on its activities through the Economic and Social Council.
This report of the Committee shall be transmitted to the Commission on the
Status of Women for its information by the secretary-general.
III. POSITIVE MEASURES AS THE MEANS OF ELIMINATING DISCRIMINATION FOR THE
IMPLEMENTATION OF THE CONVENTION
1. The Necessity for Positive Measures : Realization of Actual Equality
The States that ratified and participated in the Convention put their
State-level efforts into the elimination of legal and/or actual
discrimination. The provisions of this Convention have been reflected in
the national laws of each State so that women's legal status in each state
has been improved greatly, and the elimination of discrimination by law has
been achieved to a considerable degree. However, according to the
statistics on the proportions of males to females in such fields as labour,
education, politics, and decision-making in each State, it is common in the
reality of each State that there still exists actual discrimination against
women.
This indicates that legal equality does not mean the realization of actual
equality but only the initial stage toward it. Accordingly, the NFLS
emphasizes not only legal change but also its implementation. The General
Assembly of the United Nations which is reported to on consideration of a
State's implementation of the Convention recognizes that it is very
difficult to implement the provisions of the Convention(Note : UN,
CS/CEDAW/1990/WP. 2, No.14.).
In many a State, despite the elimination of legal discrimination,
discrimination still rematins in the customs of the State and direct and/or
indirect discrimination exists consciously and/or unconsciously. In many
cases direct discrimination is usually visible and deliberate, but
occasionally occurs in fixed ideas. Indirect discrimination means
discrimination as a result of discriminatory customary practices inspite of
aims of the State at equality between both sexes.
In other words, it means that, although laws and regulations are applied
universally without discrimination, there are cases in which discrimination
can be generated by the laws and regulations that treat, in equal terms by
law, men and women who are placed in different conditions of life, in
reality. For example, many laws and regulations related to employment are
based on the premise that all workers have the same life style, which is
stated on the basis of men as the model who neither have babies nor usually
do housework. Accordingly, if these laws are applied indiscriminatively to
men and women, discrimination against women may be the result in terms of
career employment and the like. Therefore, we have to analyze the process
in detail in which the equal status guaranteed by law can be realized,
along with the degree of the realization of that equality. Moreover, we
have to investigate the obstacles which form the gap between legal status
and actual status in order to set a strategy to overcome them. Then actual
equality can be achieved on the ground of such analysis and investigation.
Quite a few States that had adopted positive measures consider the present
disadvantages to women caused by discrimination as obstacles to the
achievement of legal equality. Accordingly, they have taken temporary
appropriate measures to eliminate the obstacles in order to reduce the
inequality between men and women and consequently to achieve actual
equality between both sexes.
The appropriate measures based on this necessity are regarded as temporary
measures required for the implementation of the positive measures adopted
by each State and/or international organizations and for the achievement of
equal rights between both sexes.
2. The Basis of the UN Convention on the Elimination of Discrimination
against Women
The international efforts for the elimination of discrimination, in fact,
started from the field of employment through ensuring effective
implementation of the law and allowing equal opportunity to both sexes.
We can find examples in the ILO Convention on Equal Wages of Men and Women
Workers for Equal Value Labor in 1951(No. 100) and the ILO Convention on
Discrimination and Job in 1958 (NO. 111).
Particularly, European Community enacted A Guideline on the Equal
Conditions for Men and Women(Note : Richt Linie 76/207, AB1.L.39V.14.2.
1976) regarding employment, vocational training, promotion, and working
conditions in February, 1976. According to Article 2 Clause 4 of this
Guideline, “The States parties of EC have a duty to adopt positive
measures for implementation of this Guideline.” Therefore, it encouraged
each European State to take its positive measure(Note : Heide M.
Pfarr(1988), Quoten und Grundgestz, S.121ff;Christine Langenfeld(1990), Die
Gleichbehandlung von Mann und Frau in Europ ischen Gemeinshaftsrecht, Nomos
Velaggesellschaft Baden-Baden, S.140.).
It is the UN Convention on the Elimination of Discrimination against Women
in which positive measures are prescribed in every field including
employment.
In Article 4 Clause 1, this Convention prescribes, “Adoption by States
Parties of temporary special measures aimed at accelerating de facto
equality between men and women shall not be considered discrimination as
defined in the present Convention,” and “These measures shall be
discontinued when the objectives of equality of opportunity and treatment
have achieved.” In other words, it clearly manifests the temporariness of
the positive measures as special measures. However, each State Party has
freedom to choose the measures appropriate to itself.
The basic ideas of the Convention are reflected to the following
provisions : e.g., “States Parties condemn discrimination against women in
all its forms, agree to pursue by all appropriate means and without delay a
policy of eliminating discrimination against women”(Article 2) ;
particularly, “To take all appropriate measures to eliminate
discrimination against women by any person, organization or
enterprise”(Article 2 Clause(e)); and “States Parties shall take in all
fields, in particular in the political, social, economic and cultural
fields, all appropriate measures, including legislation, to ensure the full
development and advancement of women, for the purpose of guaranteeing them
exercise and enjoyment of human rights and fundamental freedoms on a basis
of equality with men.”(Article 3)
Also, the Convention puts emphasis on positive measures to be adopted by
the States Parties in such provisions dealing with the obligations of the
State for achieving equality between men and women as Article 5 Clause
(a)-“States parties shall take all appropriate measures : (a) To modify
the social and cultural patterns of conduct of men and women, with a view
to achieving the elimination of prejudices and customary and all other
practices which are based on the idea of the inferiority or the superiority
of either of the sexes or on stereotyped roles for men and women,” and
Article 6 to 16 (except Article 14) in which realization of equality in the
personal sphere of life is manifested-“States Parties shall take all
appropriate measures, including legislation.”
The United Nations, through this Convention, puts its efforts in
realization of actural equality behind the belief in women's ability for
full self-development against the idea of stereotyped roles for men and
women. It also allows temporary positive measures until the time when
actual equality can be achieved, because special measures are unavoidably
required for realization of actual equality.
As a result, noticing the fact that a number of States parties have
introduced special measures to accelerate the realization of actual
equality for complete implementation of the Convention because actual
equality between men and women has not been achieved although the States
Parties have made great progress in the repeal or amendment of
discriminative laws on the basis of State reports of several States
Parties, UN Committee on the Elimination of Discrimination Against Women
adopted the General Recommendations on this subject at the 7th meeting of
the Committee for the consideration of State reports in 1989(Note : General
Recommendations 5(Temporary Special Measures), A/43/38;Refer to KWDI(1993),
p. 203; with regard to this, the UN commission on the Status of Women, at
the 36th meeting of the Commission held in 1992, with the recommendations
by the meeting on ‘Elimination of legal and actual discrimination against
women,’ which was the primary project on equality, recommended that all
the States Parties have to consider adoption of effective positive measures
taken by other States(UN(1992), E/7CN/6/1992/7/No9).).
This General Recommendations recommends that all States Parties “more
often use temporary special measures like positive measures, priority
treatment, or the quota system for improving women's participation in the
fields of education, economy, politics, and employment” in order to
accelerate realization of actual equality between men and women, on the
basis of Article 4 Clause 1 of the Convention.
3. Legal Basis of National Law on Positive Measures of Each State Party
It is very effective for activation of positive measures that the
Government of each State officially announces the promise of implementation
of the policy to ensure equal opportunity in order to reduce the gap
between legal and actual equality.
Although the States parties adopt positive measures based on Article 4
Clause 1 of the UN Convention on the Elimination of Discrimination Against
Women which has the effect of universal international law, that is a way to
legislatively show the legal problems related to the positive measures,
which may cause constitutional problems of counter-discrimination against
men because of the difference between national and international laws.
Moreover, Article 2 of this Convention demands all the States Parties to
prescribe the principle of equality between men and women in the
constitution or the other related legislation, if not prescribed yet, and
to guarantee the actual practice of this principle by means of legislation
or other appropriate measures.
Particularly in the field of employment, even before the enactment of the
UN Convention on the Elimination of Discrimination against Women, the
regulations related to equality between men and women have existed on the
basis of the guideline 76/207 of the Council of Europe in 1976, which
prescribes the provision that the special measures adopted by EC member
States to eliminate the unequal practices existing in reality against
women's opportunity shall not be applied to the case of prohibition of
discrimination. In the first, the second, and the third middle and long
term projects on women planned by the EC ministerial meeting, among EC
member nations there have been developed several kinds of appropriate
measures, such as positive measures to support women's equal opportunity
and elimination of inequality in every sector of society, and imposing on
every State the obligation to increase women's opportunity for
participation in politics and the decision-making process.
The basis of the national laws of each State on positive measures are very
diverse. Some States acknowledge the positive measures in every field of
social life in their constitutions(Greece, Sweden, and Austria) or general
laws(Iceland, Norway, Denmark, and Finland), and other States the
legitimacy of the positive measures in the field of employment only in the
special laws related to emplyment. Also, some other States do not have
related provisions in laws or legislation, but public organizations or
local self-governments sometimes adopt a decision or an index to implement
programs for positive measures(Note : Refer to op. cit., p. 36 for
details.).
4. The Concept of “Positive Measures”
The concept of “positive measures” is not unified. We can define
“positive measures” as the mesures aimed at creating new customs on the
basis of the legal systems which, presently neutral in terms of sex, will
oppose existing direct and indirect results of customary discrimination.
Because the present political, social, and economic structures were built
in the times when discrimination existed, without temporary measures to
change these structures it would be difficult to achieve important social
goals such as democracy, freedom of choice, and social justice, with which
actual equality can be realized. Therefore, in order to adopt such positive
measures, it has to be proved that the discrimination affects the practice
of women's rights, and that the proposed positive measures can correct the
present negative influences(Note : UN(1992), E/CN. 6/1992/7/NO.34.)
The EC Commission on Equality between Men and Women in 1979 defined
positive action as “the program devised to achieve actual equality in
opportunity through the measures to alleviate or correct the discrimination
originated from social system or custom.”(Note : Andre Michel(1986),
“Positive Action for the Benefit of Women-Preliminary Study,” Document
EC(86) 1, p.4).
Accordingly, the adopting of positive measures is the process of
correcting the results of past discrimination and supplementing the special
demands of discriminated groups. Special efforts are required to integrate
women into the fields from which they had been excluded previously in many
areas of social life.
Since all the States acknowledge non-discrimination as the primary goal,
the will to form the conditions for change as a supplementary measure and
positive action as a strategy for change shall be justified as the means to
accelerate equality.
The terms used in the UN Convention, the related recommendations, and by
the other States parties are positive action, speical measures, appropriate
measures, priority treatment, quota system, and attainment of target. In
this article, we will use ‘positive action’as the most comprehensive
concept.
In other words, positive action aims at : ① eliminating discrimination
and then accelerating equality, ②controlling the present obstacles, due to
the existing discrimination, to women's practicing their rights, and
③reforming the present social, political, and economic structure in order
to get rid of the influence caused by the existing discrimination, and
④temporary measures taken until the time when the influences caused by
discrimination disappear(Note : Refer to UN(1992), op, cit., No. 37).
5. Major Positive Actions
A. Importance of Elimination of Discrimination against Women in Public
Sector
As reviewed earlier in this article, for implementation of the UN
Convention on the Elimination of Discrimination against Women, the States
Parties shall have the obligation to try to promote equality by means of
the repeal of discriminatory laws and the elimination of the obstacles
against realization of actual equality, the abolition of prejudices and
customary and all other practices which are based on the idea of the
inferiority or the superiority of either of the sexes, and positive
actions.
In order to have fruitful results from these measures, the roots of
discrimination ought to be corrected. These roots are supported by such
conventional factors as the customary sex-role in each family, traditional
culture, religion, and the interpretation of norms. Such factors as
traditional behavior in the society, stereotyped sex role, traditions, and
customs contain deep resistance against the change needed for complete
prohibition of discriminatory customs against women. These obstacles are
deeply planted in the consciousness of individuals and, as the root of
discrimination, affect every one of us in private life. However, the
consciousness of individuals can effectively be changed by means of the
change in the structure of economic and public life, which can influence
the individual role in private fields.
Also, in order to get good results from these measures, it is necessary to
implement them with enough information on legal rights in the context of
political relations. For this, the conditions must be present in which
women can participate in the political and public fields, particularly in
the policy-making process.
In order to enable such conditions, we can assume that women's general
status must be improved, and that political, structural, economic, and
social problems should be solved. However, there is an increasing thoughts
that, for this change, discrimination against women in political and public
activities should be eliminated first so that women can exert their
influence in solving political and structural factors and economic and
social problems. In this way, eventually the conditions to improve women's
status can be formed by the political, structural, economic, and social
change owing to women's participation.
With regard to the state of women's participation in the public field,
there are differences in the degree of women's participation, and the rate
of women's participation is commonly low despite the cultural, ideological,
and economic gaps among the States in the world. Under such a common
thought, now the importance and joint strategy of this subject is
processing worldwide.
The issue of discrimination in the public field becomes the problem of how
women can participate more extensively and equally in public life and the
policy-making process.
The UN, for the realization of a society toward the year 2000 in which men
and women can commonly participate, adopts, as the 1990's strategic
project, the policy of equal participation in public activities including
politics and emphasizes the development of effective measures in every
area. Under the UN's support, appropriate measures related to equality have
been developed in quite a number of States. Aware of the importance of the
elimination of discrimination against women in public sectors, the UN
Convention on the Elimination of Discrimination against Women(Note : Refer
to Article 7 & 8 of this Convention.), the NFLS(Note : Refer to the
Paragraphs of this Strategy : 32, 79, 84, 87∼89, 91∼92, 267, 315, and
356.), the UN Commission on the Status of Women(Note : The UN Commission on
the Status of Women put the priority on such topics as : “Equal
Participation in Political and Decision-making Process” in theme of
equality at the 34th session(1990);“State and Regional National
Machineries to Effectively Integrate Women in the Development Process” in
the theme of equality at the 35th session(1992);“Legal and Actual
Elimination of Discrimination” in the field of equality and “Equal
Participation in All Kinds of Efforts for International Cooperation, Peace,
and Disarmament” in the field of peace at the 36th session(1992), and the
Commission will focus on the topics like : “Equality in the
Decision-making Process on Economy” in the field of equality and “Women
in Peace and the International Decision-making Process” in the theme of
peace at the 39th meeting in 1995.) and the UN Committee on the Elimination
of Discrimination against Women(Note : Refer to General Recommendation
5(temporary special measures), 6(effective national machinery and publicity
activity) and 8(concerning the implementation of Articl 8 of the
convention)) all stress the improtance of positive actions for elimination
of discrimination against women in the public sector.
In the rest of this article, we will summarize various kinds of positive
actions aimed at the elimination of discrimination against women in the
public sector, which have been dopted by the states Parties of the UN
Convention of the elimination of Discrimination against Women. These
positive actions will largely be classified into the categories of
legislative measures, the establishment of state organizations and the
measures to strengthen their function, measures to support women's
participation in politics and decision-making position, and measures to
help equal employment in the public sector(Note : Refer to KWDI(1993),
p.48.).
B. Legislative Measures(Note : Ibid., pp. 50∼81)
Article 23 of the Convention prescribes that nothing in this convention
shall affect any provisions that are more conducive to the achievement of
equality between men and women may be contained :
(a) In the legislation of a State Party ; or
(b) In any other international convention, treaty or agreement in force
for that State, and Article 24 demands the obligation of States Parties to
undertake to adopt all necessary measures at the national level aimed at
achieving the full realization of the rights recognized in the Convention.
Because the legal effect of this convention within every State is
different, in some States the Convention has legal effect as a national law
as soon as it is enacted, and in some other States it will become a part of
the State obligation for the international treaty, the effect of which is
weaker than national law. Accordingly, many States parties have enacted the
Convention as a national law after they have ratified the Convention. These
kinds of measures are very Convention, contain concrete measures for
realizing the purport of the Convention, and provide the legal basis for
establishing the organization to ensure its practice and the legal-aid
devices.
Some States like Norway, Denmark, Australia, and Finland established
comprehensive legislation on Equality between men and women in every field.
This legislation is the expression of the political will of those States to
realize the purport of the Convention as a national law. The various
measures adopted on the basis of this legislation are being implemented
effectively.
For example, in order to support the equal employment of women in the
public sector, they adopt the system of setting the target rate or the
quota system in the practice of recruitment, promotion, and vocational
education and training, set the provision on the target ratio of
representation in the political and decision-making positions, and have the
related organizations supervise the public organizations to implement the
positive measures on the elimination of discrimination against women. As a
result, they increase the effect of the legislation.
Also, there are a number of States parties that contribute to taking
positive actions by means of official announcement of the promise to
execute the policy ensuring equal opportunity in order to reduce the gap
between de jure and de facto discrimination on the basis of Article 4
Clause 1 of the Convention. The States parties which adopted such action
are the European countries centering around the EC : e.g., England, Sweden,
Austria, Denmark, France, and Italy. These States manifest it in their laws
related to employment.
Accordingly, the positive actions, which mean the will and the strategy
for change to form the conditions for social change as supplementary
devices to achieve the future goal, the realization of equality, are not
considered, in the present situation of women, as discrimination, but
justified as devices accelerating equality. Also, the positive actions are
conducive to activating positive steps not only in the field of employment
but also in other fields.
C. Establishment of National Machineries and Actions of Strengthening
Their Function(Note : Ibid., pp. 81∼124)
A number of States have established national machineries for improvement
of the status of women during the period of the UN Decade for women. It is
essential to establish such national machineries for implementation on the
UN Convention on the Elimination of Discrimination against Women because
along with legislative measures, national machineries which have actual
authority and power for execution can establish, support, and develop a
policy on the elimination of discrimination against women and also
supervise implementation of the established policy.
Therefore, for more effective implementation of the Convention the UN
Committee on the Elimination of Discrimination against Women recommended
that the States Parties establish a high-ranking organization that can give
advice on the possible influence and effect of all the policies upon women,
monitor the actual conditions of women, plan policies for the elimination
of discrimination, and have financial resources, responsibility, and power
to carry out effective measures for the established policies. Also, the
Committee urged that the States parties strengthen the function of national
machineries.
There are various forms and functions of the national machineries. In some
cases, a department of the Ministry of Labor or Social Affairs takes
charges of this task, and in some other cases an independent Ministry or
Department of Women's Affairs is established. On the other hand, some
States Parties set the only committees or ombudsman.
Such national machineries take legal and practical actions required for
implementation of the Convention, teach women their rights, make programs
for improving public understanding, and provide institutional and financial
aid for women to enjoy opportunities for education and training appropriate
to women themselves.
Although effective operation of the national machineries requires the
absolute necessity of government support, financial resources, authority,
and personnel, most States parties are not equipped with these prerequisite
conditions in reality. Therefore, on the basis of past experience, some of
the States parties such as Greece, Austria, Thailand, Germany, and Poland
tend to promote the rank of the national machinery and to strengthen its
function.
In cases of the national machineries relatively successful in their
function, they are equipped with a high level of government support,
financial resources, authority, personnel, and the power of information
mobilization and direct channels to the decision-makers. In terms of
activity, the successful organizations are conspicuous in their political
activities, have close relations with private organizations and the groups
of ordinary women in the general public, and use formal and/or informal
networks in the formal and/or informal sector(Note : United Nations(Oct.
18, 1990), A/45/489, No. 33.).
With regard to implementation of the Convention, in particular, the
national machineries play an important role in the tasks as follows :
supervising the state of implementing the Convention ; controlling the
policies of interrelated department ; publicizing and distributing the
Convention ; accelerating the policy for equality ; monitoring the status
of women as a whole ; and studying the causes of discrimination and
effectively and institutionally seeking for the strategy and policy for
elimination of the discovered causes of discrimination(Note : UN(1990),
CS/CEDAW/1990, WP. 4.).
What is most important is that, directly implementing positive measure
adopted by the state, recommending and supporting their implementation, or
giving advice on it, these national machineries put into action the
positive measures of the State for the elimination of discrimination
against women in every filed. Also, States Parties like Japan and
Australia, have adopted Nairobi forward-looking Strategies as the State
Code of Conduct, monitoring and urging implementation of its provisions.
D. Measures for Participation of Women in Politics and Decision-making
Positions(Note : KWDI(1993), pp. 124∼143.)
Despite considerable efforts in the past, it is in politics and
policy-making fields that the greatest gap between legal and de facto
equality appears in all the States in the world.
Under the common recognition that, despite the cultural, ideological,
economic, and social differences of all the nations in the world, the rates
of participation of women in politics and decision-making positions are
still commonly very low with a little difference in the degree, all the
States Parties are seeking for a common strategy regarding equal
participation of women in politics and policy-making positions as the
priority task in the 1990's.
The strategy of equality in these fields focuses on increasing the number
of women in the Parliament and higher level of the decision-making
positions and at the same time eliminating the stereotyped idea on the role
of women and improving the overall status of women by the participation of
women in politics and policy-making positions. Also, it stress the
possibility that active participation of women in politics and
policy-making positions will allow special demands and interests of women
to be taken into consideration and bring social and structural change that
is the basis of equality between men and women.
Therefore, recognizing that a number of problems in a number of nations
have resulted from the decisions arising out of the policy-making process
in which women could not participate and that equal participation of women
in politics and policy-making positions will be conducive not only to
improvement of the status of women but also to democratic development of
the society as a whole, many States Parties have adopted either positive
measures such as setting gradually increasing target rates of equal
participation of women in the legislature, political party, and
high-ranking policy-making positions or the quota system, or special
measures like reforming the election system and supporting the education of
politics for women or election related activities by women. The results of
these positive or special measures are very successful, particularly in
Scandinavian nations like Norway, Sweden, and Finland.
It can be said that equal participation of women in politics and
decision-making positions requires improvement in the general status of
women and social and political structural change before anything else.
However, it is a prerequisite to eliminate discrimination against women in
politics and decision-making positions for equal participation of women,
which can bring possible changes in political and social structure. The
changes in political and social structure can provide the conditions for
overall improvement of the status of women. Therefore, the measures for
women's participation in politics and decision-making positions are of
first priority and can become effective measures for the elimination of all
kinds of discrimination against women.
With regard to preparation for these measures, it is important to make
efforts to form the consciousness for democracy because it cannot be said
that the society that excludes women, who make up a half of the population,
from politics and policy-making process is real democracy because the
recognition that women are being deprived of important rights and duties as
civilian is required in this society.
E. Measures for Equal Employment in the Public Sector(Note : Ibid., pp.
144∼168.)
So far, many States have thrown their effort into the realization of
equality between men and women in the field of employment by enacting laws
on equal employment.
What the State can directly do toward realization of the equality of women
in the field of employment is its measures on public workers, including
women civil servants in the public sector of which the employer is the
State itself. Accordingly, the States which implement positive measures for
the elimination of discrimination against women in the field of employment
can only recommend, advise, and direct these measures to private firms, but
in the public sector the State directly carries out concrete |
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