|Bringing Equality Home - Implementing the convention on the elimination of all forms of discrimination against women (UNIFEM, 1998, 45 p.)|
|III. NATIONAL LAWS|
The connection between CEDAW advocacy and changes to national legislation often cannot be established very clearly. Many important laws for women have been passed following CEDAW ratification, women's NGOs have frequently used the Women's Convention as a component of their campaigns to push for these laws; and Governments will rely on these laws at CEDAW Committee sessions as proof that they are fulfilling their obligations under the Convention. But there is really no way to show just what was determinative in the passage of any given law. Furthermore, as the Women's Convention increasingly becomes an integral part of a nation's human rights culture, its contribution becomes harder to isolate and identify.
There are, of course, some laws in relation to which the role played by CEDAW is quite clear. These are laws that actually cite CEDAW in their preambles or text, and some have been passed in connection with efforts to get CEDAW ratified - either as preparation for ratification or in response to the Government's failure to ratify.
It is important that public education accompany the effort to pass or amend legislation. Women must be informed about new legal entitlements that have been created, before they can be expected to claim them. Government bureaucracies, local administrators, and police departments must also recognise and respect these new entitlements in order for these claims to be enforced.
In April 1998, by unanimous vote, the San Francisco Board of Supervisors passed an ordinance to implement the CEDAW principles within the city. The ordinance endorses the principles of the Convention, and creates the framework for integrating them into city governance. A San Francisco CEDAW task force is created to oversee implementation, and gender analyses are initiated in the areas of city employment, funding allocation, and service delivery. Action plans will respond to the discrimination identified in these studies. In addition, human rights training will be conducted in all city departments. The city Government has allocated $100,000 in its 1999 budget to fund the first stage of implementation.
Successful passage of the ordinance followed 18 months of intensive political organising, led by the Women's Institute for Leadership Development for Human Rights (WILD).
WILD was recently formed to promote women's human rights in the United States. The challenge, as the group understood it, was to convince women activists that the sort of human rights framework that is provided by CEDAW could really help advance their work. According to WILD, human rights are generally understood to be an international concern, with no relation to women's struggles at the national level. WILD felt that the CEDAW could provide a broader, more integrated perspective that seemed to be missing from American women's advocacy. One of the main values of CEDAW, for WILD, is that it embodies the understanding that "the full spectrum of human rights - civil, political, economic, social and cultural - are inalienable, indivisible and universal". According to WILD: "While criticising human rights abuses abroad, the United States has systematically fallen short of producing these same rights within its own borders. Although the U.S. Government has acknowledged that everyone must have civil and political rights, it has continued to deny that economic, social and cultural rights are fundamental human rights."
The idea of trying to pass a law in San Francisco was developed at a CEDAW training workshop, hosted by WILD in October 1996, along with the San Francisco Women's Foundation, Amnesty International USA, and the Center for Women's Global Leadership. At the end of the workshop's second day, the 24 participants had become convinced that CEDAW was a useful tool, and they also realised that together they had the political resources to organise a drive to pass a city ordinance.
The workshop group set up an ad hoc task force. Regular CEDAW training was scheduled, to prepare women who would join the task force, and members of the initial workshop were trained as facilitators. An initial meeting was set up with the San Francisco Commissioner on the Status of Women, who agreed to support the general concept of a CEDAW implementation ordinance. Discussions were also held with the President of the San Francisco Board of Examiners, who was convinced to act as an advocate for the project with the Board.
The focal point for the campaign was a public hearing, which was held to convince both the city Government and the people of San Francisco that implementing the Convention would make a difference to women's lives. Members of the Board of Supervisors were invited to be panellists at the hearing. They listened to over 2 hours of testimony from women, in the form of personal accounts and policy arguments, about violence against women, economic injustice, and inadequate health care. The members of the Board made a commitment at the end of that hearing to take action. The next day the Board passed a resolution calling for national ratification of CEDAW and stating that the city would begin the process of implementing the Convention locally.
A small working group, composed of representatives from WILD, the Commission on the Status of Women, and the Board of Supervisors, immediately began drafting an implementation ordinance. Discussions continued with the city Government.
The CEDAW ordinance was taken to the Board of Supervisors for a first vote in March 1998. Support was now quite solid for the ordinance, with the supervisors sensing that failing to vote for it might be damaging to them politically. The ordinance was quickly and unanimously passed into law. By their campaign to pass the ordinance the women's NGOs intend to improve conditions for women in San Francisco, but they also hope to have a broader impact on the state of women's human rights in the United States, where the U.S. Government has failed to ratify CEDAW. According to Krishanthi Dharmaraj, of WILD, "This legislation sends a strong message to the U.S. Government that women and girls expect their rights not only to be acknowledged but also enforced. San Francisco may be the first city, but it will not be the last.
Several cities have already contacted WILD about passing similar laws in their own communities." Advocacy work is currently being done to prepare for the passage of a CEDAW implementation law at the State level in California. If passed, this law would set a standard for the rest of the country.
Human rights activism intensified in Hong Kong in the late 1980s, following the events in Beijing's Tiananmen Square and in anticipation of the 1997 transfer of Hong Kong from British to Chinese rule. The transfer agreement between the British and Chinese Governments provided that China would respect existing Hong Kong legislation, and activists started to focus their attention on the passage of domestic human rights laws.
The 1991 Bill of Rights Ordinance, based on the International Covenant on Civil and Political Rights, failed to provide significant protection for women's human rights. But the women's NGOs that came together for the first time around this ordinance continued their work, formally becoming the Coalition of Women's Organisations. The Coalition began lobbying for the ratification of CEDAW, the passage of anti-discrimination legislation, and the creation of a Women's Commission.
The first direct elections were held for seats in the Legislative Council in 1991, making that branch of the Hong Kong Government democratically accountable for the first time. During the first election, women's NGOs questioned candidates about their views on women's rights, and made sure that women's issues had a high profile in the campaign. Many of the legislators came to recognise the importance of the women's vote; several legislators became real advocates; and broad support developed in the Council for women's issues. An Ad-hoc Group was formed in the Council to study women's issues, and the motion it introduced on CEDAW ratification was passed unanimously.
The Hong Kong Government was convinced to give its Agreement in Principle that the Women's Convention should be extended to Hong Kong and its agreement to seek approval for the extension from the Chinese Government. Advocacy efforts also persuaded the Hong Kong Government that it had to pass a domestic sex discrimination law to respect the obligations it would be taking on under CEDAW. Several draft bills for this law came to the legislative council. The first was introduced by a legislator who was an advocate for women's rights. It was powerful and comprehensive, and it stated explicitly that the courts were to use the Convention when interpreting the law. The Government then introduced its own sex discrimination bill in order to pre-empt this proposal.
It was the Government's bill that was ultimately passed into law, in 1995, but not in its original form. The Legislative Council called for it to be strengthened. Critics argued that without changes the legislation would fall short of what the Convention required, putting the Government in the position of already failing to meet its commitments the moment CEDAW was extended to Hong Kong. The bill's scope was broadened in several important ways. The prohibition against marital status discrimination was extended past employment and education (article 1 of CEDAW does not restrict it to these areas). The concept of the 'hostile environment' was added to the sexual harassment provision (CEDAW's General Recommendation 19). As well, the bill provided that special measures taken to ameliorate past discrimination would not be considered discriminatory (CEDAW, article 4).
Costa Rica became a signatory to the Women's Convention in 1980, but it was not until 1984, following intensive advocacy by women's NGOs and prominent politicians, that CEDAW was ratified. Public attention to the demand for women's human rights continued in 1985 and 1986 during the national election campaigns - presidential candidate Oscar Arias, of the National Liberation Party, openly sought women's votes, and declared that his Government would have the "soul of a woman." He won the election, and the Government programme announced for his party's term in power gave very high priority to women's issues. According to Point 4 of the 1986-1990 National Development Plan, the Government declared that "the policies and programmes directed at women will search for ways to overcome the economic, legal, and political inequalities that present themselves and to develop action in cultural and educational fields to favour the changing of discriminatory patterns, under the premises of equality between the sexes and shared responsibility in the home."
The women who had supported Arias's campaign, and those who now held positions in Government, moved quickly to make sure that the Government kept its election promises. They drafted legislation to implement Costa Rica's CEDAW commitments that initially focused on women's political participation and representation. CEDAW article 7 requires the elimination of discrimination in political and public life, and article 4 allows for temporary affirmative action measures - the bill provided that in the next five national elections, the political parties must nominate male and female candidates in proportion to the percentage of male and female voters in the electorate, and that 25% of the public funds the parties received must be spent to improve women's participation, organisation, and political affiliation. The bill was expanded in later drafts, to include measures guaranteeing women's equality in other key areas addressed by CEDAW, such as education, economic and social life, and violence against women.
A broad coalition of women's NGOs began work on a multidimensional strategy to ensure the bill's passage into law. Town hall meetings were held across the country to increase public awareness of the bill's content and importance. 'Culture-fairs' directed at women and children were also held across the country for the same purpose, using puppet shows, music, dance, theatre, and poetry. Politically prominent women met with individual reporters and media personalities to convince them of the need for such a bill. A demonstration supporting the bill was held in the capital city, in which over 5,000 women marched to the legislative assembly. The Archbishop of the Catholic Church was convinced to hold a meeting of over 300 priests to discuss the bill, and the majority gave their support, some even going on to hold sermons on the theme of women's equality and the need for social change. At the close of the campaign, the women supporting the bill had a public opinion survey conducted and found that 63% of the public were aware of the bill, the majority supported it, and 73% approved of its measures requiring equal male and female representation in nominations for public elections.
It became quite clear to the deputies of the Legislative Assembly that flat opposition to the bill would be highly unpopular. Deputies who were critical of the bill refocused their attention on modifying some of its provisions. At the same time, the women who supported the bill proposed changes based on the input they had received through consultations with a wide range of Costa Rican women's groups. Two new sections reflecting CEDAW principles were added to the bill: an introductory section now declared the State's obligation to guarantee the real equality of men and women in political, economic, social, and cultural life and to remove obstacles blocking women's real equality; another section set out reforms that would be required of Costa Rica's civil, penal, procedural, labour, and family laws.
The bill was passed into law in 1990, as The Law of Promotion of the Social Equality of Women. Unfortunately, the provisions relating to women's political participation had been watered down, so that parties were now only encouraged to increase women's nominations and required to spend an unspecified 'percentage' of public funds on improving women's participation. However, most of the bill's other provisions remained intact in the final version. Costa Rica's Law of Promotion of the Social Equality of Women requires the following:
· The State must share the cost of child care with all working parents of children under seven years of age;
· Property titles must be registered under the names of both spouses, and single women's property must be registered in their own names;
· Working women are protected against dismissal due to pregnancy; reinstatement can be ordered and employers may be sanctioned;
· Women are entitled to three months' maternity leave following adoption;
· Mothers and fathers are given equal rights over their children;
· Women in common-law relationships are entitled to inherit property of the relationship;
· Regarding the legal prosecution of rape: Female officials must be available for the investigation, women are entitled to be accompanied during forensic examinations, justice personnel are to be given special training, and programmes to combat sex crimes are to be developed;
· The courts are authorised to order an abusive spouse to leave the home and to continue providing economic support;
· Gender stereotypes must be eliminated from educational materials, practices and teaching methods; new training programmes for teachers and women must be financed and conducted; and
· A women's legal defence office is to be instituted to protect women's human rights under both international conventions and national laws and to promote equality between the sexes.
Japan ratified CEDAW in 1985, and several pieces of legislation were enacted at that time to bring Japanese law into conformity with the Convention. The most important of these were the 1984 amendment to the Nationality Law, which conferred Japanese nationality on the children of Japanese women, and the 1985 Equal Employment Opportunity Law (EEOL) which prohibited employment discrimination in the private sector. Women's NGOs consistently criticised the EEOL because of the weakness of its enforcement provisions, and the Japanese Government was finally convinced in 1997 to amend the law to strengthen these provisions.
China passed the Law on the Protection of Women's Rights and Interests in 1992. It was developed under the authority of the All China Women's Federation, and was drafted over a three-year period by Government officials and legal academics. The law states that it is intended to implement both the Chinese constitution's guarantee of gender equality and China's obligations under CEDAW.
The law's scope is very broad. Its six chapters set out political rights, educational and cultural rights, labour rights, property rights, rights in marriage and the family, and 'personal' rights encompassing personal freedom, bodily integrity, dignity, honour, and reputation. The law provides that affirmative action measures should be taken to increase women's participation in the legislatures and Government administration. It also issues a general call for greater attention to the structural problems underlying gender inequality in China.
Many of the law's provisions repeat entitlements already established in other recent Chinese legislation, such as the 1980 Marriage Law, the 1985 Inheritance Law, and the 1986 General Principles of Civil Law. Some new protections have been added, however, most notably in relation to housing and agricultural land.
Although the substance of the law is quite progressive, the challenge is implementation. Women are entitled to bring legal claims over the violation of their rights under the law, and the State has control over the progress of these claims. The law's enforcement is actually at the State's discretion. While it is not unusual for a Chinese law to give the State this determinative role, the impact of the Law on the Protection of Women's Rights and Interests will depend on the Government's commitment.