To what extent does international law protect the rights of women who are also members of minority groups?
This assignment will consider the question as to what extent international law protects the rights of women who are also members of minority groups. It will explore the current international law and the prohibition it places on discrimination against women and minority groups. It will be argued that whilst the law currently provides both adequate protection against minority groups and women independently it does not provide adequate protection against women who are also members of minority groups.
In 1948 the Universal Declaration of Human Rights was agreed between various states, this represented an undertaking by countries around the world to establish a basic common standard of human rights. This document prohibits discrimination on grounds of race, religion, or sex. The human rights principles of this Declaration, include the right to freedom of religion and conscience and the right to enjoyment of one's culture. At the same time, these principles include women's right to non-discrimination. The 1966 International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (ICESCR) both included a clause guaranteeing the enjoyment of the rights under them without discrimination between men and women occurring in the countries who subscribed.
In 1979, the Convention for Elimination of All Forms of Discrimination against Women (CEDAW) codified women's right to equality in all spheres of their lives as a global norm. CEDAW introduced not only the right to non-discrimination but also the right to de facto equality for women. It outlined the way in which states parties had an obligation to guarantee women the equal exercise and enjoyment of human rights, and it imposed on these states the obligation to take all appropriate measures to achieve this. CEDAW has been ratified by 170 countries and, in 2001, the Optional Protocol came into force allowing individual women in states parties that ratify the OP to bring communications before the CEDAW Committee.
Writing in 1990, Hurst Hannum remarked that, 'there has been relatively little substantive development of international law [relating] to minorities since 1945 '. In contrast, the last eight years have witnessed a plethora of instruments at the international, regional and bilateral levels, all dealing with minority issues, a development which could not have been anticipated during the cold-war period. The issue of minority rights, driven by a fresh political imperative, particularly in what have been described as the 'transitional' democracies of Central and Eastern Europe, is being addressed through a variety of methods.
The ECHR has been the main reason for the development of international law relating to minorities since 1946. This said however, the ECHR is silent on the treatment of minorities, apart from Article 14, which prohibits discrimination in the enjoyment of ECHR rights ' ... on any ground such as ... association with a national minority'. This article has not been interpreted expansively, so as to give effect to minority demands. An example of this is the case of the Belgian Linguistics case. In the Belgian Linguistics case, the French-speaking applicants failed in their claim that their rights under Article 2 of the First Protocol were being violated by the failure of the state to provide mother tongue education for their children. There was a difference in treatment, in that children of French speakers could only obtain publicly funded education in Dutch. In the well-known formula, such difference in treatment had an objective and reasonable justification: the allocation of resources. The applicants also claimed that their right under Article 8 to protection for their private and family life had been infringed, but the Court said that the Article 8 right did not extend to the provision of mother tongue education.
Under Article 14, a difference in treatment favourable to the minority may be upheld as valid. In the Liberal Party case, the Commission considered that it would be legitimate to draft voting laws to enhance the election prospects of a religious or ethnic minority. The Liberal Party failed in its claim that it was a victim of discrimination because the simple majority system, in fact, favoured the Conservative and Labour Parties. Thus, equal voting influence per se is not protected under the Convention. It would require a much more expansionist interpretation for a minority successfully to assert a right to a particular type of voting system.
In addition, in G&Ev Norway , the Commission indicated that the Article 8 right to private life could extend to protection for a person's way of life. The right to respect for private life has generally been held to impose positive obligations on states. However, restrictions on the Article 8 right are permitted in the interests of the economic well-being of the country: so, again this is likely to be of limited use to a minority community .
Further European legislation has sought to protect women and those that are members of minorities. Two directives were adopted: the first, the race directive, aims to implement the 'principle of equal treatment between persons irrespective of racial or ethnic origin '; the second, the framework directive, extends the principle of equal treatment to the grounds of 'racial or ethnic origin, religion or belief, disability, age or sexual orientation '. As a result, the United Kingdom will be obliged to enact legislation proscribing discrimination on the grounds not already covered. Domestically, the Race Relations (Amendment) Act 2000 (RR(A) A) extends the application of race discrimination legislation and places a positive legal duty on public authorities to promote racial equality. The Human Rights Act 1998 effects a partial incorporation of the European Convention on Human Rights into domestic law .
With the expanding number of unlawful discriminatory grounds, the possibility of claiming multiple discrimination (discrimination on the basis of more than one ground) increases concomitantly. Individuals may feel that the adverse treatment they have received stems from a combination of their race and sex, or their sexuality and their race, or from any number and combination of social characteristics. A question arises, then, whether the existing structure and procedure of anti-discrimination law permits such claims.
Black women can experience discrimination in ways that are both similar to and different from those experienced by white women and Black men. Black women sometimes experience discrimination in ways similar to white women's experiences; sometimes they share very similar experiences with Black men. Yet often they experience double discrimination-the combined effects of practices which discriminate on the basis of race, and on the basis of sex. And sometimes, they experience discrimination as Black women-not the sum of race and sex discrimination .
The facts of Nwoke v Government Legal Service & Civil Service Commissioners illustrate additive discrimination. The claimant, a Nigerian-born woman, applied for a post in the Government Legal Service. During the interview the Board ranked all the claimants from 'A' (the highest) to 'E' (the lowest). The claimant received a ranking of 'E'. The evidence established that the white claimants were graded higher even if they possessed a lower degree class. Further, although white women were graded higher, they were less likely to be appointed than men, and, if appointed, were paid less. In addition, the only person on a temporary contract with the GLS not to be permanently appointed was a black woman. Nwoke successfully alleged race and sex discrimination. The adverse treatment Nwoke suffered was additive or double discrimination: she was discriminated against because she was both a woman, and black. Nwoke thus faced a double burden in her job application.
Furthermore internationally many of the practices that seek protection as minority rights and are defended in the name of culture, impinge on women’s human rights; they preserve patriarchy at the expense of women's rights. Such practices include: a preference for sons, leading to female infanticide; female genital mutilation (FGM); sale of daughters in marriage, including giving them in forced marriage as child brides; paying to acquire husbands for daughters through the dowry system; patriarchal marriage arrangements, allowing the husband control over land, finances, freedom of movement; husband's right to obedience and power to discipline or commit acts of violence against his wife, including marital rape; family honour killings by the shamed father or brothers of a girl who has been sexually violated, whether with consent or by rape; witch-hunting; compulsory restrictive dress codes; customary division of food, which produces female malnutrition; and restriction of women to the roles of housewives or mothers, without a balanced view of women as autonomous and productive members of civil society . Many of these practices have been the subject of criticism in the Concluding Comments on Country Reports by the Committee for Elimination of Discrimination against Women.
Of the harmful cultural practices, which have been legitimised and defended, some are geoculturally diffuse, if not universal, and specific to regions. The most globally pervasive of the harmful cultural practices mentioned above is the stereotyping of women exclusively as mothers in a way that limits their opportunity to participate in public life, whether political or economic. Other patriarchal practices, which were widely prevalent in the past, have been eliminated in some societies but have survived in others, such as allowing the husband control over land, finances, or freedom of movement; a husband's right to obedience and power to discipline or commit acts of violence against his wife, including marital rape ; and witch-hunting. Some cultural practices that are harmful to women have always been peculiar to certain areas, such as family honour killings; FGM; and a preference for sons leading to female infanticide, nevertheless this exists and is an abuse of women’s human rights .
The clash-between culture and religion, on the one hand, and human rights or gender equality, on the other-is expressly regulated in two international conventions-CEDAW and ICCPR. Article 5(a) of CEDAW imposes a positive obligation on states parties to "modify ... social and cultural" practices in the case of a clash, and article 2(f) imposes an obligation to "modify or abolish ... customs and practices" that discriminate against women. Culture, as noted above, is a macroconcept, definitive of human society, and the concept of "cultural practices" thus subsumes the religious norms of societies. Custom is the way in which the traditionalist cultural norms are sustained in a society. It is clear, then, that article 5(a) and article 2(f) give superior force to the right to gender equality in the case of a clash with cultural practices or customs, including religious norms, thus creating a clear hierarchy of values.
In ICCPR's article 18(3), there is express regulation of any potential conflict between the right to manifest one's religion and the fundamental rights or freedoms of others, including, implicitly, the right to gender equality. The article provides that "[t]he right to manifest one's religion or beliefs ... may be subject only to such limitations as are necessary to protect public safety, order, health, or morals, or the fundamental rights and freedoms of others." Article 18(3) thus provides an exception to the right to the freedom to manifest one's religion, should a confrontation materialise with the fundamental rights and freedoms of others, including, by clear implication, the right to gender equality also protected in the ICCPR. Through this exception, a hierarchy of rights is implicitly introduced, albeit in less categorical language than in CEDAW. The intention of article 18(3) is to legitimise limitations on the right to manifest one's religion where it infringes women's human rights. Indeed, the article, in providing an exception for such limitations as may be "necessary" to protect fundamental rights, may be read to imply that there will be an obligation on states parties to impose them. This seems to be implicit in the Human Rights Committee's General Comment on the Equality of Rights between Men and Women, which, although not expressly referring to article 18(3), holds that the right to religion does not allow any state, group, or person to violate women's equality rights . Article 18(3) also protects the fundamental rights of "others," and this could have been read to exclude protection of members of the religion themselves. However, the Human Rights Committee seems to have adopted a more liberal approach to the interpretation of the clause, condemning polygamy, even though it is a religious practice of the members of the religion .
CEDAW and the ICCPR thus balance the right to religion and culture with human rights and women's rights. While both conventions recognise the need for balancing, there are significant differences between their formulations. First, the conception of a mandatory hierarchy of values in article 5(a) of CEDAW is not matched by a similar edict in article 18(3). Indeed, article 18(3) provides an exception to a human rights standard and, as such, the Human Rights Committee has said it must be strictly interpreted. Second, the choice to regulate the clash is with culture, in one convention, and with religion, in the other (further discussed below). Third, there is a difference in wording as regards the protected parties; in CEDAW, the reference is to "men and women," while in ICCPR it is to "others." The obvious reference in CEDAW is to men and women within the culture; in ICCPR, the primary reference may be to those outside the religion, although, as pointed out, the Human Rights Committee has not adopted a restrictive approach but a much broader approach.
Related international law essays
It has been demonstrated that there exists both adequate protection for both those that belong to minority groups, by reason of their religion and or their cultural differences and that the rights of women are adequately protected. What cannot be demonstrated by international law is that those women who are members of a minority group are adequately protected. As has been pointed out black women can experience discrimination in ways that are both similar to and different from those experienced by white women and Black men. Black women sometimes experience discrimination in ways similar to white women; sometimes they share similar experiences with Black men. Yet often they experience double discrimination- combined effects of practices which discriminate on the basis of race, and on the basis of sex. And sometimes, they experience discrimination as Black women-not the sum of race and sex discrimination . International law does not take account of these concerns and does not therefore address them and it can be shown that these rights are not adequately protected.
Bibliography
Statutes
Convention on the Elimination of All Forms of Discrimination against Women, Dec. 18, 1979, G.A. Res. 34/180, 34 U.N. GAOR Supp. (No. 46) at 193, U.N. Doc. A/34/46, 1249 U.N.T.S. 12
Human Rights Act 1998
Optional Protocol on the Elimination of Discrimination against Women, G.A. Res. 54/4, annex, 54 U.N. GAOR Supp. (No. 49) at 5, U.N. Doc. A/54/49 (Vol. I) (2000)
Race Relations (Amendment) Act 2000
Universal Declaration of Human Rights, Dec. 10, 1948, U.N. G.A. Res. 217 (III of 1948)
Case Law
Bilka-Kaufhaus v Weber von Hartz, Case 170/84 [1986] ECR 1607
Buckley v UK App. No. 20348/92 Commission 2 March 1995 19 EHRR CD 20 (1995)
Hampson v Department of Education and Science [1989] ICR 179
Liberal Party et al. v UK App. No. 8765/79 4 EHRR 106 at 120-1 (1982)
Marshall v Southampton and South West Hampshire AHA (No 2), Case C-261/91 [1993] ECR I-4367; [1994] ICR 242
Nwoke v Government Legal Service & Civil Service Commissioners (1996) 28 EOR 6
Journal Articles
Hannett S, (2003) “Equality at the Intersections: The Legislative and Judicial Failure to Tackle Multiple Discrimination”, Oxford Journal of Legal Studies 23 (65)
Raday F, (2003) “Culture- Religion and Gender”, International Journal of Constitutional Law 1.4 (663)
Shalev C (2001),” China to CEDAW: An Update on Population Policy”, 23 Human Rights Quarterly 119
Siegel R, (1996) “The Rule of Love: Wife-beating as Prerogative and Privacy”, 105 YALE Law Journal 2117
Sullivan D, (1988) “Advancing the Freedom of Religion or Belief through the UN Declaration on the Elimination of Religions Tolerance and Discrimination”, 82 American Journal of International Law 487
Wright J, (1999) “Minority Groups, Autonomy and Self Determination”, Oxford Journal of Legal Studies 19 (605)
Books
Christina Cerna & Wallace, (1999) “Women and Culture”, in Kelly D, Askin D, & Koenig M, (1999) “WOMEN AND INTERNATIONAL HUMAN RIGHTS” Transnational
Hannum H, (1990) “Autonomy, Sovereignty, and Self-Determination”
Steiner H & Alston P, (2000) “Human Rights in Context – Law, Politics and Morals”, Second Edition, Oxford University Press
Weisberg D (ed.),(1993) “Feminist Legal Theory: Foundations” Philadelphia: Temple
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