United Nations

E/CN.6/1995/3/Add.7


Commission on the Status of Women

 Distr. GENERAL
14 March 1995
ORIGINAL: ENGLISH




COMMISSION ON THE STATUS OF WOMEN
Thirty-ninth session
New York, 15 March-4 April 1995
Item 3 (b) of the provisional agenda*

     * E/CN.6/1995/1.


 PREPARATIONS FOR THE FOURTH WORLD CONFERENCE ON WOMEN:  ACTION
  FOR EQUALITY, DEVELOPMENT AND PEACE:  REVIEW AND APPRAISAL OF 
 THE IMPLEMENTATION OF THE NAIROBI FORWARD-LOOKING STRATEGIES  
                  FOR THE ADVANCEMENT OF WOMEN

        Second review and appraisal of the implementation
        of the Nairobi Forward-looking Strategies for the
                      Advancement of Women

                 Report of the Secretary-General

                            Addendum


                 II.  CRITICAL AREAS OF CONCERN

   I.  Lack of awareness of and commitment to internationally
       and nationally recognized women's human rights        

1.  The Charter of the United Nations includes, among its basic objectives
and principles, the achievement of international cooperation in promoting and
encouraging respect for human rights and fundamental freedoms for all without
distinction as to sex (Article 1, paragraph 3, and Article 55 (c)).  The
Preamble to the Charter stresses the determination to reaffirm faith in the
equal rights of men and women.  In the Universal Declaration of Human
Rights, 1/ from which most nations derive guiding principles on rights and
fundamental freedoms, the United Nations emphatically condemns discrimination
on the basis of sex and clearly states that "All are equal before the law and
are entitled without any discrimination to equal protection of the law.  All
are entitled to equal protection against any discrimination in violation of
this Declaration and against any incitement to such discrimination"
(article 7). 

2.  These principles were applied in the International Covenant on Civil and
Political Rights and its Optional Protocol 2/ and provide a legal basis for
communications from individuals claiming to be victims of violations of any of
the rights set forth in the Covenant as well as in the Covenant on Economic,
Social and Cultural Rights, both adopted in 1966.

3.  Of all the human rights conventions, the Convention on the Elimination
of All Forms of Discrimination against Women 3/ constitutes the most explicit
statement of women's human rights.  The Convention was the culmination of more
than 30 years of work by the Commission on the Status of Women.  In addition
to constituting an international bill of rights for women, codifying those
rights that already existed in international law, it sets an agenda for action
to provide for full enjoyment of those rights.  It obliges the States parties
to "pursue by all appropriate means and without delay a policy of eliminating
discrimination against women" (article 2).  It reaffirms the equality of human
rights for women and men in all spheres of life (society and the family),
obliges a State party to take action against the social causes of women's
inequality, and calls for the removal of laws, stereotypes, practices and
prejudices that impair women's well-being and their right to equality.

4.  A good indicator of the extent to which de jure discrimination has been
addressed is the number of States that have accepted the Convention as a
binding obligation.  Just prior to the World Conference to Review and Appraise
the Achievements of the United Nations Decade for Women, which was held in
Nairobi in 1985, there were only 39 States parties to the Convention.  As of
June 1990, the time of the first review and appraisal of the Nairobi
Forward-looking Strategies for the Advancement of Women, the number had
increased to 102.  As of January 1995, the Convention had 139 States parties. 
Most of these States have accepted their obligations unconditionally, although
29 States have entered substantive reservations, some based on religious law
and cultural tradition.

5.  The Economic and Social Council adopted the following conclusions and
recommendations arising from the first review and appraisal of the Nairobi
Forward-looking Strategies for the Advancement of Women (Council resolution
1990/15):

    "3. The interdependence of the different political and social sectors on
    the one hand, and the legal and social situation on the other, needs to
    be recognized.  However, de jure equality constitutes only the first
    step towards de facto equality.  Most countries have enacted legal
    measures to ensure that women have equal opportunities before the law,
    that is de jure equality.  But de facto as well as de jure
    discrimination continues and visible political and economic commitment
    by Governments and non-governmental organizations will be required to
    eliminate it.  One obstacle to eliminating de facto discrimination is
    that most women and men are not aware of women's legal rights or do not
    fully understand the legal and administrative systems through which they
    must be implemented.  Some affirmative action measures require legal
    bases which still need to be created.

        "Recommendation I.  Governments, in association with women's
    organizations and other non-governmental organizations, should take
    steps on a priority basis to inform women and men of women's rights
    under international conventions and national law and to prepare or
    continue campaigns for women's 'legal literacy' using formal and
    non-formal education at all levels, the mass media and other means;
    efforts to this end should have been undertaken by 1994. 
    
        "The work of the Committee on the Elimination of Discrimination
    against Women should be widely publicized through forms of communication
    that are accessible to women in order to make them aware of their
    rights.  National reports to the Committee should be widely disseminated
    within the respective countries and discussed by governmental and
    non-governmental organizations.  Organizations of the United Nations
    system, particularly the International Labour Organization and the
    United Nations Educational, Scientific and Cultural Organization, should
    be requested to examine national experience in promoting legal literacy
    with a view to assisting Governments, non-governmental organizations and
    women's movements in mounting successful campaigns.
    
        "Recommendation II.  Governments should take steps to put legal
    equality into practice, including measures to provide a link between
    individual women and official machinery such as the establishment of
    offices of ombudsmen or similar systems.  Where possible, access to
    legal redress by collective and individual legal action by national
    machinery and non-governmental organizations should be facilitated in
    order to assist women in ensuring the implementation of their rights."

6.  The World Conference on Human Rights (1993) explicitly recognized that
"the human rights of women and of the girl-child are an inalienable, integral
and indivisible part of universal human rights" and that "gender-based
violence and all forms of sexual harassment and exploitation, including those
resulting from cultural prejudice and international trafficking, are
incompatible with the dignity and worth of the human person and must be
eliminated". 4/  Thus, the Conference rejected any limitation of international
standards of human rights for women on the grounds of conflict with culture,
tradition or religion.

7.  The Conference also took a position against violations of the human
rights of women in armed conflicts and considered, inter alia, that systematic
rape, sexual slavery or forced pregnancy are violations of the fundamental
principles of international human rights and humanitarian law.

8.  Other achievements of the Conference included the following:

    (a) A call for universal ratification of the Convention on the
Elimination of All Forms of Discrimination against Women by the year 2000 and
the withdrawal of reservations that are incompatible with the object and
purpose of the Convention;

    (b) The establishment of a focal point for women in the Centre for Human
Rights and a request for strengthening the structures and activities of the
United Nations related to the human rights of women;

    (c) A suggestion to appoint a special rapporteur on violence against
women; 

    (d) A suggestion to elaborate an optional protocol to the Convention
providing for individual complaints.

9.  National reports and other information suggest that there is continuing
progress towards achieving de jure equality.  However, the extent to which
this translates into de facto enjoyment of this right is related to the
seriousness and commitment with which States adhere to the provisions of laws
and the attitudes of the judiciary, law enforcement officials and society at
large, compounded in many instances by a lack of well-established mechanisms
for monitoring implementation.  Other sections of the review and appraisal
examine the extent to which de facto enjoyment of equal rights has been
achieved.  This section concentrates on de jure equality.


              1.  Progress towards de jure equality

10. Many countries report that they have taken steps to provide legal
equality and the machinery necessary to implement it.  The enactment of equal
opportunity laws, for example, is reported by many countries.  In addition,
most States report that equality between women and men is guaranteed by their
constitutions or basic laws even where it is not specifically stated.  A
number of countries report that they have further reinforced the
constitutional guarantees by enacting separate equality laws or amending
civil, penal and family codes to ensure that women are accorded equal rights,
protection, equal access and opportunities in education, employment, health
and matrimonial and family matters under statutory laws.  These countries
report that the reforms have enabled many women to assert their rights.

11. Many countries indicate that they have made efforts to adjust and
incorporate the provisions of the Convention on the Elimination of All Forms
of Discrimination against Women into their laws.  However, one country reports
that "many United Nations conventions are yet to be thoroughly perused by the
average person in any home in any country and the essence of their intentions
absorbed ...  The reality is that it is important for women to know why the
Convention was formulated and how it is supposed to assist in improving their
situation.  It is also important for women to know how the Convention links
with the laws of the country and the implications of the Convention for local
legislation so that they can lobby".  A problem, however, remains when women
lack interest, knowledge and awareness or lack motivation and the means to use
laws effectively.

12. Several reports suggest an unwillingness on the part of women to assert
their claims and rights.  In Asia and Africa in particular, some reports
indicate that women are still fearful, reluctant, not willing or not
comfortable in seeking to exercise their rights through litigation, especially
in family disagreements.

13. Moreover, even when anti-discrimination laws exist, their application
may be clouded by dual legal systems that recognize the applicability of
discriminatory traditional law.  For example, some multi-ethnic,
multi-religion countries have dualistic legal systems that permit sex
discrimination, especially in areas of personal and family law.  In many
countries, the values of society are still strongly influenced by customary or
religious practices and regulations that are sometimes in direct conflict with
international human rights standards, as well as with national statutory laws
where civil law differs from the customary or religious practices.

14. Some countries with multiple legal systems report that they have
embarked on a review of their statutes in order to harmonize their civil codes
with the traditional values that are the basis of customary practices.  Other
countries report on ongoing steps to repeal or amend discriminatory laws and
practices against indigenous people, ethnic minorities or particular groups or
classes of the population that have been found to subject women in these
groups to double discrimination.

15. Several countries report having made commitments to achieve uniform
penal and civil codes applicable to all, regardless of sex, and to ensure the
full development and achievement of citizenship for all women so that women
may exercise and enjoy all other forms of human rights and fundamental
freedoms on a basis of equality with men.

16. However, many countries, particularly in Africa, Asia and the Pacific,
report that their domestic laws, policies and practices have not yet
incorporated or do not reflect all international norms and standards.  The
reasons for this vary and include a lack of political commitment; an
unresponsive legal system; attitudinal obstacles to the incorporation of
international standards when these are believed to be in conflict with
religious, cultural or customary practices; the absence of effective domestic
groups that can lobby for change effectively and without fear of intimidation;
and an absence of effective enforcement mechanisms even where legislation
exists.

17. A number of countries report collective action by women to obtain their
rights, including individual and class action suits through the courts in
order to establish legal precedents through court decisions, often using
advocates who take on cases so that the courts can quickly establish
constitutional guarantees.  Several countries report the use of this type of
collective action at national levels, especially in the area of domestic
violence and such crimes as trafficking for prostitution.

18. A number of countries in Africa and Asia report that there has been
collaboration with non-governmental organizations and donor countries in
education for legal literacy.  The approaches differ from country to country. 
Some indicated that they focused on the need to educate the general
population.  Many countries stated that general literacy in the overall
population is, as one country put it, a "major catalyst in developing legal
literacy; whereas, formal proclamation of rights by itself does not amount to
a force that can change the basic power relations of the society".

19. Nevertheless, several countries state that in order to have a more
sustainable impact, legal literacy should include developing an awareness of
rights in general and of existing national statutory rights in particular,
since penal and civil codes protect everyone.  One country recommends
mobilization for a change in attitudes to encourage people to have faith in
their legal rights and the process for ensuring those rights.  Some countries
report that they are focusing on raising women's consciousness and awareness
of laws but are silent about the situation of the general public.  However,
others report on the establishment of legal aid centres, para-legal facilities
or similar mechanisms where both women and men, as one country put it, "with
minimal filing fee or without obstruction or cost to themselves, can seek
assistance to obtain justice and redress under the laws in general".

20. The reasons why women do not always exercise their rights effectively
vary.  Reports indicate that in some regions women are able to relate more
easily to their basic problems, such as poverty, a lack of health services, a
lack of child and family services and economic weaknesses, rather than to
their legal rights as such.

21. The broad concerns regarding family and matrimonial laws appear to be
generally the same from region to region, although different reports emphasize
the specific issues that are the most problematic and important in their
particular context.  For example, payment of alimony and child support and
sharing of family domestic chores and responsibility feature prominently in
the reports of some countries, while others emphasize economic and political
rights and ownership rights to land and property.  Paid labour rights, health
services, social security and credit rights for all women are major concerns
everywhere.  Several countries also state that the achievement of certain
basic human rights, such as the right to economic development and equality in
education, which are lacking in their countries, will automatically lead to
the achievement of other basic human rights by women as well as men.


                   2.  Enforcement mechanisms

22. In the implementation of human rights instruments, it is the obligation
of States parties not only to respect individual freedoms and rights but also
to ensure access to those rights.  States are expected to create the
conditions that will enable their people to exercise their rights freely in
all aspects of life.

23. While only a few countries report that they have established offices of
ombudsmen or similar mechanisms for access to rights, other countries report
the establishment of councils or tribunals that deal with disputes of all
types.  Still others report that they have created law reform commissions,
task forces or similar bodies to study existing laws and practices with the
aim of enacting new laws, harmonizing conflicting concepts or repealing
discriminatory sections of existing laws and policies.

24. The judicial system of any country is an important enforcement
mechanism.  By providing fair interpretation of the laws they can help to
achieve the intent of those laws.  In order to demonstrate commitment to the
principles of equality and gender neutrality, States should allow both women
and men with legal capacity to sit in judgement of the laws of the land in
which they live.

25. The number of women in the legal profession and judiciary system has
increased in many countries.  The appointment of women to serve as magistrates
or judges has increased steadily, although progress has been slow in many
regions and different trends are apparent.  Africa and the Caribbean show
higher numbers of female judges and magistrates than do other regions of the
world.  States whose legal system is based on Islamic law have fewer female
judges and magistrates.


                      3.  Problematic areas

26. Women's enjoyment of their human rights is particularly problematic in
certain areas.  One of these is the general area of violence, which has been
described in detail in another section this report (E/CN.3/1995/7/Add.4). 
Others include political rights, reproductive rights, economic rights and
rights within the family.

Political rights and nationality

27. Political rights and the right to nationality have been secured by
United Nations conventions that predate the Convention on the Elimination of
All Forms of Discrimination against Women.  However, their enjoyment still
remains a problem in some countries.

28. The question of nationality or citizenship combines with the issue of
legal capacity in terms of women's rights to participate equally with men in
public and civic activities and family relations.  Legal capacity affects the
right to enter into contracts, and without such capacity women are deprived of
many opportunities. 

29. In some countries women's rights as citizens are legally limited by
restrictions on their right to vote or their right to be elected to public
office.  Women are sometimes denied the right to pass their citizenship on to
their children because a child's nationality is assumed to be that of the
father.  While several countries report that women are now being allowed to
acquire and retain or change their nationality, some countries report that, in
practice, nationality is still frequently dictated by the husband's
nationality and domicile.  A woman who chooses to maintain or acquire a
nationality different from that of her husband may find that her rights within
the family, and in particular over her children, are restricted.

30. The right of a woman to choose her nationality has become particularly
important for women in view of the increase in international migration and in
single parenthood.  The report of the Economic Commission for Latin America
and the Caribbean (ECLAC), in particular, emphasizes the growing importance of
full citizenship for women as independent individuals.  Non-sexist education
and equality between women and men are considered important prerequisites for
exercising full citizenship in a free society.  However, some countries report
that the issue of nationality or citizenship does not feature prominently
because of the rural nature of the population.

Reproductive rights

31. The issue of women's reproductive rights figured prominently at the
International Conference on Population and Development.  It is an area that
remains problematic.  At its centre is the norm set out in the Convention on
the Elimination of All Forms of Discrimination against Women that women and
men have the right to freely choose the number and spacing of their children.

32. Evidence shows that a combination of factors is necessary for women to
exercise their reproductive rights:  appropriate legal provisions, self-
reliance, literacy, reasonable economic independence and the availability of
health and family planning services, means and information.  These factors
give a woman the ability to assert her independence in any relationship and in
making decisions about whether to have children and on their number and
spacing.  A Government that respects and wishes to promote these rights needs
to take steps to establish the conditions that allow women to exercise their
reproductive rights.

Economic rights

33. The Nairobi Forward-looking Strategies called for reforms to guarantee
women's constitutional and legal rights in terms of access to land and other
means of production and to ensure that women can control the products of their
labour and income and enjoy the benefits of agricultural inputs, research,
training, credits and other infrastructural facilities.

34. Article 15 of the Convention on the Elimination of All Forms of
Discrimination against Women accords women equality with men before the law
and generally in civil codes.  The assumption was that in matters of legal
capacity women would achieve identical rights to those of men and the same
opportunities to exercise that capacity.  However, in reality, even among
States parties to the Convention, it is reported that women are yet to enjoy
or exercise such equal rights without any trace of discrimination.  There are
exceptions - in Europe, studies show that more women than men own land.  In
entering into contracts or administering their ownership or property rights,
many women from all parts of the world still face a variety of hidden
obstacles, even where equal rights exist.  As one country explained in its
report, in "customary patrilineal societies, a woman does not have rights to
land for fear that she could pass it to her husband's family".  Some countries
report that although customary laws gave women usufructuary rights that could
not be tampered with by the husband, when land registration acts were
introduced to cover clan lands, men took legal possession by registering only
themselves as the owners in the title deeds to family land.

35. There is a basic difference in the situation of women in the countries
that recognize de jure equality between women and men in their statutory laws,
even if they are not implemented in practice, and those countries that deny
this principle in their legislation.  Some countries report that in the
majority of cases, women do not have the opportunity to exercise legal
capacity on the same basis as men, even where the laws exist, because of
cultural and customary practices.  In practice,  many women find it difficult
to enter into a contract or receive credit from banks without a guarantee from
husbands or male relatives.  In some countries where legal capacity is not an
obstacle, banks nevertheless charge women higher interest rates, thus
discouraging them from applying for loans.

36. Several national reports indicate that for many women the legal autonomy
envisaged in the Nairobi Forward-looking Strategies has not been achieved in
every aspect of life.  In some States, although laws exist to protect rights
to credit, in practice policies contradict the intent of the law.  However,
many reports indicate that more women are now self-employed or are
entrepreneurs and thus play an important role in their countries' economies,
and that the success of women is at least comparable to that of men. 
Nevertheless, despite efforts to ensure equal access to credit, many women are
still unable to obtain loans or credit from either government facilities or
commercial banks because they lack the security or collateral required.  In
some cases, women are required to put up more collateral and pay higher rates
of interest than men.

Basic rights within the family

37. While specific legal provisions and policies that influence family
matters vary from country to country, family law and civil law relating to
such issues as rights to marriage, divorce, custody, guardianship and
maintenance, as well as those matters related to inheritance and to control
and ownership of property, remain problematic.  Several countries report that
they invoke family law before labour, criminal and commercial laws in cases
involving women.  One country reported that although laws in most areas have
been made equal on the basis of sex, this has not been the case in family law.

38. Other countries report that progress in changing discriminatory
structures remains slowest in the area of family law.  One country reports
that the collective matrilineal and patrilineal family norms not only
characterize the typical family structure but also dictate societal conduct. 
Non-conformity with traditional socio-cultural expectations, beliefs and norms
is discouraged and is punished through social ostracism.

39. Several countries report the enactment of new family codes or marriage
and divorce laws that provide for equal treatment of men and women under
statutory laws as they enter into marriage or seek divorce.  However, many
countries, particularly those governed by the Islamic Sharia and others that
choose to follow non-secular laws, still report that the grounds for divorce
for men can be different from the grounds for divorce for women.  In some
countries, in an effort to discourage polygamy and to safeguard young people
from forced and early marriages, all marriage must now be registered,
regardless of the system under which they were contracted.  Many countries
have also revised their minimum-age laws for marriages, although the age for
girls tends to be lower than that for boys, averaging between 15 and 18 years
of age in many countries.  Freedom in the choice of a marriage partner is also
reportedly a growing trend in many countries.

40. Several countries that originally had discriminatory laws have enacted
progressive family codes.  However, family law in many countries in Africa,
Asia and the Pacific and Western Asia, in particular, still reflects the
complex legal history of these countries.

41. As stated in one report, "it should not be forgotten that the new family
code is intended as a compromise between traditional values, religious
liberties and principles of secularism.  This delicate compromise position
clearly explains why the code, which in some ways liberates women, still
contains many discriminatory measures against them and even appears in certain
of its provisions to strengthen patriarchal power.  Thus, although it
introduces consent to marriage, abrogates (forced) reproduction and banishes
levirate (the practice of wife inheritance), it has not abolished polygamy,
the bride price, the unequal apportionment of inheritance, the choice of men
as head of family and the predominance of paternal authority."

42. In terms of inheritance and property ownership, many countries report
that women are considered secondary in the application of the law.  This
situation is especially apparent among countries where customary laws and
religious dictates concerning inheritance and property rights have the same
weight as statutory succession acts.  In most traditions and cultures,
excepting matrilineal societies, inheritance rights have favoured male heirs. 
Inheritance for widows in many cultures does not even reflect the principle of
equal ownership of property acquired during marriage, "especially so in cases
where the contribution was of a non-financial kind by the wife, although
enabling the husband to earn an income and increase the assets".  Under
certain legal systems, however, family property acquired during the course of
a marriage is divided equally.

43. Some countries report that they have specifically enacted new family
codes that have led to the recognition of the economic value of domestic work.
Several others, particularly from the African region, report that an
illustration of customs influencing discrimination against women can be found
in the laws concerning marriage, divorce, property rights and inheritance.

44. Women have always had a limited right to property ownership in many
parts of the world, albeit to property held before or after marriage.  It is
reported that there are instances where a woman can receive property either by
gift or inheritance but still not have the right to pass it on.  In some
societies or among orthodox religious groups, despite secular governance,
property owned by males preferably devolves onto the male lineal descendants,
while property owned by females is shared equally by widowers, sons and
daughters.  In other countries, inheritance depends on which law is invoked
first and whether it is contested; the first procedure chosen prevails, unless
contested.  The courts must then decide on the conflicting claims according to
the individual case.


                              Notes

    1/  General Assembly resolution 217 A (III).

    2/  General Assembly resolution 2200 A (XXI).

    3/  General Assembly resolution 34/180.

    4/  A/CONF.157/24 (Part I), chap. III, para. 18.

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