Unequal before the law

The 21st century has arrived, but in many countries laws relating to women appear to be mired in the past. In a great many States, it is not a crime if a man rapes his wife.

Dr Fareda Banda: Highlighting laws that make women second class citizens - © UN Photo/Paulo Filgueiras“Sixty years after the adoption of the Universal Declaration of Human Rights,” High Commissioner for Human Rights Louise Arbour said on 5 June at the 8th Session of the Human Rights Council in Geneva, “women and girls continue to be regarded as lesser beings in many areas of the world.”

A woman can suffer not only because she is a woman; she can also be discriminated against because she is a refugee, or because she is a member of an ethnic or religious minority — or all of these things and more. This “intersectional” aspect of gender discrimination means the battle for equal rights for women has to be fought on many fronts.

But there is general agreement that one critical area for reform is the law. “There is clear evidence that even those States whose constitutions guarantee equality before the law (the majority) have laws that discriminate against women,” says Dr Fareda Banda of the School of Oriental and African Studies in London.

Banda, author of a study on statutory discrimination against women, says States that have ratified the Convention on the Elimination of All Forms of Discrimination against Women, for instance, but reserved the right not to apply certain provisions of the treaty, have damaged women’s rights. 

“The fact that some reservations entrench legal discrimination against women calls into question the commitment of States Parties to the principle of non-discrimination,” says Banda, whose study was commissioned by the Office of the High Commissioner for Human Rights.

High Commissioner Arbour believes that laws and customs that discriminate against women put them at risk of violence and oppression both inside and outside their homes.

“A concomitant denial of basic rights such as access to health services, housing, education, food and water overwhelmingly affects women,” says Arbour, “depriving them of... their fair share of public goods and services. This inequality may also condemn them to poverty which, in turn, exposes hundreds of millions of girls and women to continuous abuse.”

Both Arbour and Banda addressed panels on women’s rights at the 8th session of the Human Rights Council from 2 -18 June in Geneva. Besides statutory discrimination, these looked into the related issues of maternal mortality and violence against women.

The General Assembly has tasked the Human Rights Council with setting priorities in addressing violence against women as a follow-up to the Secretary-General’s study on the subject. The Secretary-General’s report calls violence against women a “pandemic” and “one of the most serious challenges of our time.”

Arbour says the root causes of violence against women are deep-seated inequalities and discrimination. Pointing to Banda’s study, she says it “underscores the persistence of laws and customs that make women second class citizens, and that, consequently, expose them to undeterred and unpunished violence.”

Discriminatory laws and practices are also at the root of many cases of maternal mortality, according to Arbour. “Early marriage, female genital mutilation and the disrespect of women’s safe reproductive rights, all of which are incompatible with the obligations set forth in the Convention on the Elimination of All Forms of Discrimination against Women, are key contributors to the millions of deaths and disabilities resulting from pregnancy and childbirth annually.”

Arbour says the Human Rights Council must highlight laws that facilitate women’s enjoyment of equal rights. “I am a firm believer in the power of laws . . . to foster or compel change and to transform societies.” For her part, Banda says that “there are those who believe changing the law is easier than changing society, but that doesn’t mean we should stop trying.”

Banda’s study, which was first presented at an OHCHR press briefing on 4 April 2008 and again on 9 June at a side event of the Human Rights Council, indicates there is strong support for a new mechanism to ensure that States are fulfilling their commitments on women’s rights. Discussions are now underway to decide if a special rapporteur, an independent expert, a working group or some other mechanism would be best suited to the task.