Non-discrimination and equality of women

Abstract

Non-discrimination is considered to be a cornerstone of the human rights framework of the United Nations. Already in the UN Charter of 1945 it is stated that human rights should be promoted without discrimination as to, amongst other things, sex. This principle of non-discrimination on the ground of sex is restated in subsequent international human rights instruments, such as the International Covenant on Civil and Political Rights (ICCPR), adopted in 1966. This principle is further elaborated in the Convention on the Elimination of All Forms of Discrimination against Women (Women’s Convention), which was adopted in 1979. It is within the context of the development of general human rights norms, on the one hand, and the elaboration of specific norms, on the other, that this study was undertaken. It assesses whether there is an added value in the establishment of a specific treaty with its own treaty body with respect to the elaboration and interpretation of the norms of non-discrimination and equality of women. This assessment is carried out by analysing the overlapping non-discrimination and equality provisions of the ICCPR and the Women’s Convention, and the interpretations of these provisions by the Human Rights Committee and by CEDAW. This includes general provisions concerning non-discrimination and equality and thematic provisions, regarding family life and political participation. The overlapping provisions and the interpretation thereof are compared by using a framework for analysis that includes different concepts of discrimination and equality. The concept of direct discrimination and formal equality, whereby the first creates a negative duty and the second a positive duty, both provide for equal treatment. In contrast, the concept of substantive equality - including affirmative action - and indirect discrimination, which partly overlaps with the concept of substantive equality, may also provide for unequal treatment. Finally, the concept of systemic discrimination provides for society to change structures that can lead to discrimination. These different concepts are included in a three level framework for analysis, that provides for equal treatment, different treatment and/or transformation of certain structures in society. It is concluded that it is in fact the combination of both the provisions of the Women’s Convention and the interpretation of these provisions by CEDAW that make that there is an added value in having a specific convention that addresses discrimination against women, compared to a general human right instrument, such as the ICCPR. The overlapping provisions of the Women’s Convention, that are more specific, and the interpretation thereof by CEDAW encompass all three levels, including the distinguished concepts, of the framework for analysis. In contrast, the overlapping provisions of the ICCPR and the interpretation thereof by the Human Rights Committee focuses on equal treatment and les far-reaching measures to ensure substantive equality, by rarely recommending affirmative action measures. In addition, contrary to the Human Rights Committee, CEDAW takes the social reality of women into account when interpreting the respective provisions by addressing certain issues and/or in more detail issues that specifically affect women.