SMARTS

Article 1 contains a definition of discrimination against women: the term 'shall mean 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'.

This definition of discrimination would presumably cover both direct and indirect discrimination. This distinction is characteristic of UK anti-discrimination legalisation. Direct anti-discrimination is an overt act of discrimination; indirect discrimination in a little harder to define. It can be understood as the imposition of a standard or a rule that is not explicitly discriminatory, but, the proportion of those in the discriminated group who can comply with it is much smaller than those not in that group. Thus, a job requirement specifying that an employee has to be away from home for long periods may be seen as indirectly discriminatory to women looking after children. The condition does not explicitly state that women caring for children cannot apply, but the proportion that would be able to comply is presumably much smaller than those not looking after children.

It is worth noting that discrimination on the basis on marital status is directly prohibited (i.e. any requirement that a person should be married, or not married).

Article 2 moves from a general definition to cover the ways in which discrimination is to be combated. Note how the obligation rests with the state party to:

• incorporate anti-discrimination principles in the constitution and in legislation

• deploy sanctions if necessary to achieve the goal of equality require public authorities to act in a non-discriminatory way and

• repeal penal legislation that is discriminatory.

Article 3 can be read alongside Article 2. It states that ‘all appropriate measures’ will be taken to further the fundamental rights and freedoms of women. Article 4 states an important caveat: measures promoting women’s rights shall not themselves be considered discriminatory.

Moreover, they must not amount to the ‘maintenance of unequal or separate standards’, as these are in themselves discriminatory. However, adoption of special measures to protect maternity is not to be considered discriminatory.

Article 5 places further duties on state parties. First of all, the article places an obligation 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.’

This is accompanied by a duty 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. Underlying this obligation is the assertion that the best interest of the children is the primary consideration in all cases.

Article 5 thus requires a significant input from the state in creating the conditions for a social re-alignment that breaks down those conditions that have kept women out of public life, or treated them as second class citizens. This requires action on stereotypical ideas of the roles of women and men; and a significant programme of education in relation to the role of the family. Coupled with the earlier article of section 1, this broad set of goals could be achieved through legislation, but, to be successful, such a programme would have to be accompanied with education.

Article 6 is brief. It moves from a consideration of the family to two other areas where women have been oppressed. It places a duty on state parties to 'take all appropriate measures...to suppress all forms of traffic in women and exploitation of prostitution of women’.

Part II

Part II of CEDAW elaborates on the rights contained in Part I.

Article 7 concerns voting rights and public participation. State parties undertake to ensure that women, like men, can ‘vote in all elections and public referenda ...and be eligible for election to all publicly-elected bodies'. State parties must also guarantee that women can 'participate in the formulation of government policy' and its implementation and hold public office. Women must also be allowed to 'participate in non-governmental organizations and associations concerned with the public and political life of the country'’

Article 8 elaborates these provisions to an international level, placing an obligation on state parties to ensure that women have ‘the opportunity to represent their governments at the international level and to participate in the work of international organizations’.

Article 9 moves on to a different but related concern. CEDAW places the right of nationality in the context of the problems faced by women.

The right to ‘acquire, change or retain…nationality' should be enjoyed equally by men and women. However, in relation to women, state parties must ensure that 'neither marriage to an alien nor change of nationality by the husband during marriage' should 'automatically change the nationality of the wife, render her stateless or force upon her the nationality of the husband'. In the second paragraph, state parties grant women equal rights with men ‘with respect to the nationality of their children’.

Part III

Article 10 relates to the right to education. It addresses various issues that have tended to restrict the rights of women to enjoy equal opportunities in this area with men. Paragraph (a) concerns itself with conditions for career and vocational guidance, with particular reference to promoting the opportunities of women in rural as well as urban environments. The Article is detailed, as it elaborates an educational culture that does not operate on the provision of unequal and separate standards. Paragraph (b) thus specifies that women must have access to the same premises, facilities, teachers and curricula as men; later paragraphs stress that there must also be equal access to grants, and opportunities for physical education. Article 10 also elaborates the need to break down stereotypical ideas about the role of women in education.

Thus, state parties must work towards:

‘The elimination of any stereotyped concept of the roles of men and women at all levels and in all forms of education by encouraging coeducation and other types of education which will help to achieve this aim and, in particular, by the revision of textbooks and school programmes and the adaptation of teaching methods,’

Another broad policy goal is specified at para. (f). State parties must work towards the 'reduction of female student drop-out rates and the organisation of programmes for girls and women who have left school prematurely’. In other words, states must make a special effort to counter the pressures on girls to leave education. Family planning is also made part of this general approach to education in paragraph (h).

Article 11 moves from education rights to employment rights. The Article re-states the basic prohibition on discrimination, and then goes on, at 1 (a) to assert the right to work as ‘an inalienable right of all human beings’. This assertion relies on the fact that work is itself the access to civic status, and a wage in turn should allow the generation of

is to be deprived of the benefits that come with working. Historically, and in the present day, preventing women from working, or from working in specific sectors or fields, was and is effective in limiting life opportunities and maintaining the subordinate status of women. Article 11 is then specific about how employment rights are to be protected.

These methods include 'the application of the same criteria for selection in matters of employment, and at (c), the right to choice of profession, promotion, job security and all the benefits incidental to employment.

Employment rights are further specified to include the right to equal remuneration (d), the right to social security (e), and the right to safe working conditions (t). The second part of the Article concerns the employment rights of pregnant women. Paragraph 2(a) prohibits discrimination on the grounds of pregnancy or maternity leave; (b) makes it a duty of state parties to provide 'the necessary supporting social services to enable parents to combine family obligations with work responsibilities and participation in public life’. Paragraph (d) states that special protection must be provided for pregnant women at work. The third part of the Article mandates a review of legislation in the 'the light of scientific and technological knowledge’.

Article 12 guarantees equal access to health care for women and men, as well as requiring state parties to ‘ensure to women appropriate services in connection with pregnancy, confinement and the post-natal period, granting free services where necessary, as well as adequate nutrition during pregnancy and lactation’.

Women’s rights are distinctive to the extent that they recognise the special health care needs of women; indeed, this is one important area where women differ from men. These are outlined as the biological factors that relate to women's reproductive role, and also the 'higher risk of exposure to sexually transmitted diseases that women face'. But these differences are not just biological.

Socio-economic factors vary for women in general and some groups of women in particular. For example, unequal power relationships between women and men in the home and workplace may negatively affect women's nutrition and health. They may also be exposed to different forms of violence which can affect their health. Girl children and adolescent girls are often vulnerable to sexual abuse by older men and .family members, placing them at risk of physical and psychological harm and unwanted and early pregnancy. Some cultural or traditional practices such as female genital mutilation also carry a high risk of death and disability.

It may also be the case that women may be deterred from seeking medical advice in relation to contraception, abortion or when victims of

sexual or physical violence, because of the stigma sometimes attached to such matters.

Article 13 further elaborates the prohibition on discrimination in relation to 'economic and social life'. More specifically, women and men must have equal access to: family benefits, the right to bank loans and credit, and the right to participate in cultural life. This Article seems somewhat underdeveloped. The access to finance, loan facilities and credit is increasingly important to the structure of the contemporary social world in both the developed and the developing world. For instance, one can only run a business if one can access credit facilities. It is somewhat strange that the right to work, and the right to education (for example) are so explicitly presented, whereas the right to financial services is so under- developed. Perhaps this reflects the situation at the time of the drafting of the Article; this is one area where a more thorough articulation of the right may be useful.

Article 14 perhaps addresses a reality that is more pressing in the life of women in the developing world than the developed world, as economies in the former are less dependent on mass employment in agriculture than the latter. The Article places a duty on state parties to take into account the ‘particular problems faced by rural women and the significant roles which rural women play in the economic survival of their families’. This means that special regard must be had to women's work in the ‘non-monetised sectors of the economy'. In other words, women are disproportionately represented in informal and unregulated areas of economy as a result of their subordinate status. The Article goes on to specify objectives that must be addressed. States Parties must combat discrimination in rural areas, and ensure that women 'benefit from rural development'. More specifically, women must be encouraged 'to participate in the elaboration and implementation of development planning at all levels'. The rights covered above in relation to education and training are then re-iterated; but, other areas of participation are also elaborated. For instance, women must be enabled to ‘organise self-help groups and co-operatives in order to obtain equal access to economic opportunities through employment or self employment’. Article 13 is then repeated in a slightly revised version: women must be enabled to 'have access to agricultural credit and loans, marketing facilities, appropriate technology and equal treatment in land and agrarian reform as well as in land resettlement schemes’. The final paragraph specifies that women must also ‘enjoy adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply, transport and communications’.

Part IV

Part IV addresses the legal and social status of women.

Article 15 addresses the equality of men and women before the law.

The second paragraph requires state parties to provide identical legal capacity to women and men in civil matters: 'in particular, they shall give women equal rights to conclude contracts and to administer property and shall treat them equally in all stages of procedure in courts and tribunals'. As a corollary of this, state parties must ensure that all contracts and other private legal documents that deprive women of capacity are null and void, and must ensure that men and women have the same rights of movement, residence and domicile. This point has been made before, but it is worth repeating. The guarantee of lega1 capacity is a centra1 human right; indeed, a case could be made for it being the essentia1 human right. If anything, a human right expresses the conjunction of humanity with lega1 capacity. To be deprived of humanity is to become right-less, to have no lega1 capacity. Thus, human rights must, at base, assert an essentia1 connection between human being and the civic identity that the law enables.

Article 16 elaborates this notion of equa1 rights and legal capacity in relation to a specific area of law: marriage and divorce.

Discrimination against women must be eliminated in these areas by providing women and men with the same rights to enter into marriage with free consent and by maintaining a legal system that gives men and women that same rights during marriage and in the event of its dissolution. This would a1so cover rights over children, irrespective of marita1 status, including rights over guardianship, ward-ship, trusteeship and adoption of children. The last paragraph of the Article is interesting as it suggests an essentia1link between the rights of women and children: 'the betrothal and the marriage of a child sha1l have no lega1 effect, and a1l necessary action, including legislation, sha1l be taken to specify a minimum age for marriage and to make the registration of marriages in an official registry compulsory’.

Part V

Part V of CEDAW moves from substantive rights to certain institutiona1 and procedura1 concerns.

Article 17 sets up the Committee on the Elimination of Discrimination against Women staffed by 'experts of high mora1 standing and competence in the field covered by the Convention'. Elected by states parties from among their nationa1s in a secret ba1lot, and serving in a persona1 capacity (consideration being. given to both geographica1

distribution and to the representation of ‘different forms of civilization as well as the principallega1 systems’), the members of the Committee are empowered, by

Article 18, to consider reports submitted to them by the Secretary-Genera1 of the United Nations. These reports must cover ‘the legislative, judicia1, administrative or other measures’ that states parties 'have adopted to give effect to the provisions of the present Convention'.

States parties must also report on the progress they have made in implementing the CEDAW.

Article 21 goes on to detail the powers and duties of the Committee.

Reporting annua1ly through the Economic and Social Council to the Genera1 Assembly, the Committee makes recommendations based on the reports that have been submitted by states parties. In turn, the Secretaty-Genera1 transmits the reports of the Committee to the Commission on the Status of Women for its information.

Article 22 empowers ‘the specialised agencies’ to make reports to the Committee.

Part VI of CEDAW concerns itself with a number of technica1 matters which will not be discussed here.

Under Article 29 of CEDAW, two or more state parties can refer disputes about the interpretation and implementation of CEDAW to arbitration, and if the dispute is not settled, it can be referred to the International Court of Justice. This procedure is subject to a large number of reservations and has never been used.