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1 Leading the Way: The International Labour Organisation
PROTECTING AND PROMOTING THE RIGHTS OF WOMEN
Even today, one of the biggest problems faced by proponents of women’s rights is the need for
gender mainstreaming, for recognition of equality.
The International Labour Organisation was an early advocate of women’s rights. It recognised
that women required protection, particularly in vulnerable employment situations such as during
maternity periods and in hazardous working environments. Even now, almost a century later, the
International Labour Organisation has been instrumental in creating the global framework of
women’s rights. In 1919 it adopted Convention No. 3 on Maternity Protection and Convention
No. 4 on Night Work of Women.
Compare and contrast the provisions on maternity protection in these two International Labour
ILO CONVENTION 3, MATERNITY PROTECTION 1919
In any public or private industrial or commercial undertaking, or in any branch thereof, other
than an undertaking in which only members of the same family are employed, a woman –
(a) shall not be permitted to work during the six weeks following her conﬁnement;
(b) shall have the right to leave her work if she produces a medical certiﬁcate stating that her
conﬁnement will probably take place within six weeks;
(c) shall, while she is absent from her work in pursuance of paragraphs (a) and (b), be paid
beneﬁts sufﬁcient for the full and healthy maintenance of herself and her child, provided
either out of public funds or by means of a system of insurance, the exact amount of which
shall be determined by the competent authority in each country, and as an additional
beneﬁt shall be entitled to free attendance by a doctor or certiﬁed midwife; no mistake of
the medical adviser in estimating the date of conﬁnement shall preclude a woman from
receiving these beneﬁts from the date of the medical certiﬁcate up to the date on which the
conﬁnement actually takes place;
(d) shall in any case, if she is nursing her child, be allowed half an hour twice a day during her
working hours for this purpose.
Where a woman is absent from her work in accordance with paragraph (a) or (b) of Article 3 of
this Convention, or remains absent from her work for a longer period as a result of illness
medically certiﬁed to arise out of pregnancy or conﬁnement and rendering her unﬁt for work, it
shall not be lawful, until her absence shall have exceeded a maximum period to be ﬁxed by the
competent authority in each country, for her employer to give her notice of dismissal during
such absence, nor to give her notice of dismissal at such a time that the notice would expire
during such absence.
ILO CONVENTION 103, MATERNITY PROTECTION (REVISED) 1952
1. A woman to whom this Convention applies shall, on the production of a medical certiﬁcate
stating the presumed date of her conﬁnement, be entitled to a period of maternity leave.
2. The period of maternity leave shall be at least twelve weeks, and shall include a period
of compulsory leave after conﬁnement.
3. The period of compulsory leave after conﬁnement shall be prescribed by national laws
or regulations, but shall in no case be less than six weeks; the remainder of the total period of
maternity leave may be provided before the presumed date of conﬁnement or following
expiration of the compulsory leave period or partly before the presumed date of conﬁnement
and partly following the expiration of the compulsory leave period as may be prescribed by
national laws or regulations.
4. The leave before the presumed date of conﬁnement shall be extended by any period
elapsing between the presumed date of conﬁnement and the actual date of conﬁnement and
the period of compulsory leave to be taken after conﬁnement shall not be reduced on that
5. In case of illness medically certiﬁed arising out of pregnancy, national laws or regulations shall provide for additional leave before conﬁnement, the maximum duration of which
may be ﬁxed by the competent authority.
6. In case of illness medically certiﬁed arising out of conﬁnement, the woman shall be
entitled to an extension of the leave after conﬁnement, the maximum duration of which may be
ﬁxed by the competent authority.
1. While absent from work on maternity leave in accordance with the provisions of Article 3, the
woman shall be entitled to receive cash and medical beneﬁts.
2. The rates of cash beneﬁt shall be ﬁxed by national laws or regulations so as to ensure
beneﬁts sufﬁcient for the full and healthy maintenance of herself and her child in accordance
with a suitable standard of living.
3. Medical beneﬁts shall include pre-natal conﬁnement and post-natal care by qualiﬁed
midwives or medical practitioners as well as hospitalisation care where necessary; freedom
of choice of doctor and freedom of choice between a public and private hospital shall be
4. The cash and medical beneﬁts shall be provided either by means of compulsory social
insurance or by means of public funds; in either case they shall be provided as a matter of right
to all women who comply with the prescribed conditions.
5. Women who fail to qualify for beneﬁts provided as a matter of right shall be entitled,
subject to the means test required for social assistance, to adequate beneﬁts out of social
What reasons are there for the differences between the two instruments? Is the approach acceptable today?
Employment law has produced possibly the most substantive advance in women’s rights. While the
International Labour Organisation forged ahead with tabulating women’s rights in the workplace,
the European Economic Community (now subsumed by the European Union) made similar
dramatic inroads within its small territorial jurisdiction in Europe. In all instances the balance
between promotion of equality and protection of rights has proven tricky to achieve. Protection of
women is obviously necessary as everyone is entitled to the protection of their human rights. For
women’s rights often it is not the state itself but other individuals who threaten equality.
Should women be protected in a manner which implies they need special protection solely on account of being female?
Equality is clearly a lynchpin of the United Nations itself. From the tentative statements in the
Charter to its reiteration over the intervening six decades, it is clear that equality between men and
women is meant to be a cornerstone of the new world order.
PROTECTING AND PROMOTING THE RIGHTS OF WOMEN
Preamble to the United Nations Charter 1945
WE THE PEOPLES OF THE UNITED NATIONS DETERMINED
to save succeeding generations from the scourge of war, which twice in our lifetime has
brought untold sorrow to mankind, and
to reafﬁrm faith in fundamental human rights, in the dignity and worth of the human
person, in the equal rights of men and women and of nations large and small.
Gender mainstreaming is now fundamental to the ongoing development of the United Nations. For
the working definition, see ECOSOC’s viewpoint.
Economic and Social Council Agreed Conclusions 1997/2 (1997)
. . . the process of assessing the implications for women and men of any planned action,
including legislation, policies or programmes, in all areas and at all levels. It is a strategy for
making women’s as well as men’s concerns and experiences an integral dimension of the
design, implementation, monitoring and evaluation of policies and programmes in all political,
economic and societal spheres so that women and men beneﬁt equally and inequality is not
perpetuated. The ultimate goal is to achieve gender equality.
Salient policies characterise the work of the United Nations Development Programme, UNESCO,
the European Union, UNIFEM and indeed the United Nations as a whole. Gender mainstreaming is
viewed as an essential element of securing the objectives of the Beijing Platform for Action.
Throughout this chapter, consider whether women’s rights in general represent simply a retabulation of human rights articulated in the Universal Declaration, albeit with a focus on their application to women.
Equality between men and women, rooted as it is in the United Nations Charter, is a major foundation for women’s rights. As the preamble to the Convention on the Elimination of Discrimination
against Women notes, a change in the traditional role of men as well as the role of women in society
and in the family is needed to achieve full equality between men and women.
Irrespective of changes in attitude, there can perhaps never be true equality between the sexes,
at least not in the sense of absolute similarity of treatment. What is required is recognition of the
entitlement of women to equal enjoyment of all rights and freedoms. This was encapsulated in the
preamble to the Charter of the United Nations, extracted above.
Men and women should thus be able to benefit from their rights and freedoms as enshrined in
the various tabulations of rights without differentiation. Equality of enjoyment of all rights and
freedoms, however, also demands recognition of equality of status before the law. For many women
realisation of this has been a major issue impeding the progress of equality between the sexes. In
extreme situations, it can also impede the progressive development of women’s rights.
A related concept is that of non-discrimination. Non-discrimination in the exercise of rights is a
common theme which pervades most instruments. Although the grounds may expand (see
Chapter 2), the prohibition on discrimination on gender is a constant. The United Nations adopted
an instrument specifically to reinforce the prohibition on discrimination against women: the
Convention on the Elimination of All Forms of Discrimination against Women 1979. Article 1
provides a definition:
CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN
1979, Article 1
For the purposes of the present Convention, the term ‘discrimination against women’ 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.
Note three important aspects of this definition: discrimination may be intentional or unintentional;
women may be directly or indirectly disadvantaged; and the convention applies to rights in public
and private spheres. The effect of the measure, not its prescribed aim is thus the important element
to discern. This broadens the potential impact of the Convention but is clearly crucial: distinguishing appropriate and inappropriate legislative measures solely on account of the prescribed
aim of the law would permit too wide a discretion to States and totally negate the aim of the
Convention. Furthermore, the extension of the prohibition to public and private spheres implies a
positive obligation on the part of States to protect women from certain actions, even where the
proscribed act is undertaken by a private body. This is particularly apparent with respect to employment law, and awareness raising initiatives are often required.
CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN
Article 2(e) and (f)
States Parties condemn discrimination against women in all its forms, agree to pursue by all
appropriate means and without delay a policy of eliminating discrimination against women and,
to this end, undertake:
(e) To take all appropriate measures to eliminate discrimination against women by any
person, organization or enterprise;
(f) To take all appropriate measures, including legislation, to modify or abolish existing laws,
regulations, customs and practices which constitute discrimination against women.
What problems may there be for States in ensuring that individuals conform to the standards of national law? What impact
may this have on States when the issue of ratification/accession to the Convention is under discussion?
Much of the Convention on the Elimination of All Forms of Discrimination against Women reaffirms the rights of women to enjoy universal rights and freedoms on the basis of equality with
men. There is little in the way of novel rights. The emphasis is firmly on non-discrimination against
women in the exercise of universal rights.
14.2.2 Equality in law – litigating the right
Individual (and group) communications can be lodged with the Committee on the Elimination of
Discrimination against Women against those States which have ratified the Optional Protocol to the
Convention on the Elimination of All Forms of Discrimination against Women 1999. As a remedy,
this suffers from the deficiencies noted in Chapter 6. However, as a method of generating awareness
and prompting a State to rethink its policies and laws, the individual petition system has considerable merit. Petitions under the Convention are still in their infancy, the Protocol only entered into
force in late December 2000 and very few communications have been considered. Note also that
PROTECTING AND PROMOTING THE RIGHTS OF WOMEN
the Protocol permits the Committee to investigate incidences of systematic violations of the
OPTIONAL PROTOCOL ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST
WOMEN 1999 Article 8
1. If the Committee receives reliable information indicating grave or systematic violations by a
State Party of rights set forth in the Convention, the Committee shall invite that State Party to
cooperate in the examination of the information and to this end to submit observations with
regard to the information concerned.
2. Taking into account any observations that may have been submitted by the State Party
concerned as well as any other reliable information available to it, the Committee may designate one or more of its members to conduct an inquiry and to report urgently to the Committee.
Where warranted and with the consent of the State Party, the inquiry may include a visit to its
3. After examining the ﬁndings of such an inquiry, the Committee shall transmit these
ﬁndings to the State Party concerned together with any comments and recommendations.
4. The State Party concerned shall, within six months of receiving the ﬁndings, comments
and recommendations transmitted by the Committee, submit its observations to the Committee.
5. Such an inquiry shall be conducted conﬁdentially and the cooperation of the State Party
shall be sought at all stages of the proceedings.
The first communication, Ms B-J v Germany, Communication 1/2003 was declared inadmissible in
July 2004 on account of non-exhaustion of domestic remedies and the fact that the events
complained of occurred before the entry into force of the Optional Protocol. The second communication proceeded to merits (Ms A-T v Hungary, Communication 2/2003, decision January 2005,
discussed below in the section on violence against women).
Note particularly that complaints concerning discriminatory treatment can be brought before
a variety of treaty monitoring bodies. This is an inevitable consequence of the evolution of the
concept of equality between men and women under the auspices of the United Nations, and
indeed, of the interdependence and indivisibility of universal human rights. For the victims, it is a
positive development as many women thus have avenues of complaint open to them at the regional
and international level, irrespective of whether their State has ratified the Convention on the
Elimination of all Forms of Discrimination against Women and its Optional Protocol. The following
list details the principal non-discrimination on gender provisions which the main treaty bodies
consider. Note that additional rights may be engaged, these suggestions are not summative.
Human Rights Committee – Articles 2, 3 + 26 International Covenant on Civil and Political
Rights prohibit discrimination in enjoyment of civil and political rights
European Court of Human Rights – Article 14 European Convention on Human Rights in
conjunction with another right
European Court of Justice – Article 157 Treaty on the functioning of the European
Union and related directives, also actionable under national laws of European Union member
Inter-American Court of Human Rights – Articles 1, 24 American Convention on Human
African Court/Commission on Human and Peoples’ Rights – African Charter and Protocol
To illustrate the potential for bringing complaints concerning inequality before alternative bodies,
consider the following communications.
188.8.131.52 Human Rights Committee – Communications
Ato del Avellanal v Peru, Communication 202/1986, Human Rights Committee, 1988 UN Doc.
Under Article 168 of the Peruvian Civil Code law, married women wishing to enforce or action
proceedings in respect of matrimonial property must be represented by the husband in court.
Ms Ato del Avellanal was wishing to reclaim unpaid rent from apartment blocks which she
owned. The decision of the court that the property issues must be represented by the husband
was upheld by the Supreme Court despite a provision of the Peruvian Constitution requiring
equality of rights. Article 14 of the International Covenant on Civil and Political Rights makes
the following guarantee.
International Covenant on Civil and Political Rights Article 14(1)
All persons shall be equal before the courts and tribunals. In the determination of any
criminal charge against him, or of his rights and obligations in a suit at law, everyone
shall be entitled to a fair and public hearing by a competent, independent and
impartial tribunal established by law. The press and the public may be excluded from
all or part of a trial for reasons of morals, public order (ordre public) or national
security in a democratic society, or when the interest of the private lives of the parties
so requires, or to the extent strictly necessary in the opinion of the court in special
circumstances where publicity would prejudice the interests of justice; but any
judgement rendered in a criminal case or in a suit at law shall be made public except
where the interest of juvenile persons otherwise requires or the proceedings concern
matrimonial disputes or the guardianship of children.
Peruvian Law permits appeals to the Human Rights Committee of the United Nations for citizens
who have exhausted domestic remedies and feel their constitutional rights have been infringed.
9.2 In formulating its views, the Committee takes into account the failure of the State party to
furnish certain information and clariﬁcations, in particular with regard to the allegations of
discrimination of which the author has complained. It is not sufﬁcient to forward the text of the
relevant laws and decisions, without speciﬁcally addressing the issues raised in the communication. It is implicit in Article 4, paragraph 2, of the Optional Protocol that the State party has
the duty to investigate in good faith all allegations of violation of the Covenant made against it
and its authorities, and to furnish to the Committee all relevant information. In the circumstances, due weight must be given to the author’s allegations.
10.1 With respect to the requirement set forth in Article 14, paragraph 1, of the Covenant that
‘all persons shall be equal before the courts and tribunals’, the committee notes that the court
of ﬁrst instance decided in favour of the author, but the Superior Court reversed that decision
on the sole ground that according to Article 168 of the Peruvian Civil Code only the husband is
entitled to represent matrimonial property, i.e. that the wife was not equal to her husband for
purposes of suing in Court.
10.2 With regard to discrimination on the ground of sex the Committee notes further that
under Article 3 of the Covenant State parties undertake ‘to ensure the equal right of men and
women to the enjoyment of all civil and political rights set forth in the present Covenant’ and
that Article 26 provides that all persons are equal before the law and are entitled to the equal
protection of the law. The Committee ﬁnds that the facts before it reveal that the application of
Article 168 of the Peruvian Civil Code to the author resulted in denying her equality before the
courts and constituted discrimination on the ground of sex.
PROTECTING AND PROMOTING THE RIGHTS OF WOMEN
11. The Human Rights Committee, acting under Article 5, paragraph 4, of the Optional Protocol
to the International Covenant on Civil and Political Rights, is of the view that the events of this
case, in so far as they continued or occurred after 3 January 1981 (the date of entry into force
of the Optional Protocol for Peru), disclose violations of Articles 3, 14, paragraph 1, and 26 of
Similar issues were raised before the Inter-American Commission on Human Rights in Morales de
Sierra v Guatemala, Case 11.625 (2001) Report No. 4/01 (2001).The Guatemalan Civil Code conferred
the primary power to represent the marital union, the children and marital property, on the
husband. Moreover, the Code provided that wives had special obligations to care for children and
the home and could not work outside the home if such work was prejudicial to her role as mother
and housewife. The Commission considered the equality and marriage provisions of the Convention
Aumeeruddy-Cziffra and others v Mauritius, Communication 35/1978, Human Rights
Committee 1981, UN Doc. CCPR/C/12/D/35/1978 (1981)
Twenty Mauritian women complained of discrimination with respect to immigration and
deportation practices. Under new Mauritian laws (of 1977), the alien (that is, non-Mauritian)
husband of a Mauritian woman must apply for a residence permit and may be subjected to
deportation. Alien women married to Mauritian men retain their right to residency. The women
claimed infringements of Articles 2–4, 17, 23, 25 and 26 of the Covenant on Civil and Political
Rights. Clearly the application of the right had the potential to impact on their right to a home
life and to found a family in Mauritius. For example, over three years had elapsed since Mrs
Aumeeruddy-Cziffra’s husband had applied to the Mauritian authorities for a residence permit
without any formal decision.
9.2 (b) 2 (i) 2 The Committee takes the view that the common residence of husband and wife
has to be considered as the normal behaviour of a family. Hence, and as the State party has
admitted, the exclusion of a person from a country where close members of his family are living
can amount to an interference within the meaning of Article 17. In principle, Article 17 (1)
applies also when one of the spouses is an alien. Whether the existence and application of
immigration laws affecting the residence of a family member is compatible with the Covenant
depends on whether such interference is either ‘arbitrary or unlawful’ as stated in Article 17 (1),
or conﬂicts in any other way with the State party’s obligations under the Covenant.
9.2 (b) 2 (i) 3 In the present cases, not only the future possibility of deportation, but the existing
precarious residence situation of foreign husbands in Mauritius represents, in the opinion of
the Committee, an interference by the authorities of the State party with the family life of the
Mauritian wives and their husbands. The statutes in question have rendered it uncertain for the
families concerned whether and for how long it will be possible for them to continue their
family life by residing together in Mauritius. Moreover, as described above (para. 7.4) in one of
the cases, even the delay for years, and the absence of a positive decision granting a residence
permit, must be seen as a considerable inconvenience, among other reasons because the
granting of a work permit, and hence the possibility of the husband to contribute to supporting
the family, depends on the residence permit, and because deportation without judicial review is
possible at any time.
9.2 (b) 2 (i) 4 Since, however, this situation results from the legislation itself, there can be no
question of regarding this interference as ‘unlawful’ within the meaning of Article 17 (1) in the
present cases. It remains to be considered whether it is ‘arbitrary’ or conﬂicts in any other way
with the Covenant.
9.2 (b) 2 (i) 5 The protection owed to individuals in this respect is subject to the principle of
equal treatment of the sexes which follows from several provisions of the Covenant. It is an
obligation of the State parties under Article 2 (1) generally to respect and ensure the rights of
the Covenant ‘without distinction of any kind, such as . . . (inter alia) sex’, and more particularly
under Article 3 ‘to ensure the equal right of men and women to the enjoyment’ of all these
rights, as well as under Article 26 to provide ‘without any discrimination’ for ‘the equal
protection of the law’.
9.2 (b) 2 (i) 6 The authors who are married to foreign nationals are suffering from the adverse
consequences of the statutes discussed above only because they are women. The precarious
residence status of their husbands, affecting their family life as described, results from the
1977 laws which do not apply the same measures of control to foreign wives. In this connection
the Committee has noted that under section 16 of the Constitution of Mauritius sex is not one
of the grounds on which discrimination is prohibited.
9.2 (b) 2 (i) 7 In these circumstances, it is not necessary for the Committee to decide in the
present cases how far such or other restrictions on the residence of foreign spouses might
conﬂict with the Covenant if applied without discrimination of any kind.
9.2 (b) 2 (i) 8 The Committee considers that it is also unnecessary to say whether the existing
discrimination should be called an ‘arbitrary’ interference with the family within the meaning of
Article 17. Whether or not the particular interference could as such be justiﬁed if it were applied
without discrimination does not matter here. Whenever restrictions are placed on a right
guaranteed by the Covenant, this has to be done without discrimination on the ground of sex.
Whether the restriction in itself would be in breach of that right regarded in isolation, is not
decisive in this respect. It is the enjoyment of the rights which must be secured without
discrimination. Here it is sufﬁcient, therefore, to note that in the present position an adverse
distinction based on sex is made, affecting the alleged victims in their enjoyment of one of
their rights. No sufﬁcient justiﬁcation for this difference has been given. The Committee must
then ﬁnd that there is a violation of Articles 2 (1) and 3 of the Covenant, in conjunction with
Article 17 (1).
The issues in this case are comparable to Abdulaziz, Cabales and Balkandali v United Kingdom, Series A, No. 94
(1985). The European Court of Human Rights considered that the applicants’ rights under Article 8
of the European Convention (right to private and family life, home and correspondence) in
conjunction with the prohibition on discrimination on grounds of gender (Article 14) had been
However, compare Broeks v Netherlands, Communication 172/1984 with Vos v Netherlands,
Communication 218/1986, both opinions of the Human Rights Committee applying the
International Covenant on Civil and Political Rights. Discrimination was only found in the former.
Can women ever be equal in law with men? To what extent can the concept of equality of rights truly make a difference to the
plight of women?
184.108.40.206 European Court of Justice – preliminary rulings
Obviously, childbirth and breast-feeding are restricted to women. This has caused problems with
respect to discrimination and equality law, as there are no male equivalents. The European Court of
Justice (an organ of the European Union) has regularly considered the issue of maternity rights and
discrimination. Brown v Rentokil is a Scottish case which illustrates its approach. The House of Lords
(the highest UK Civil Court) referred various questions concerning dismissal of a woman for illness
PROTECTING AND PROMOTING THE RIGHTS OF WOMEN
during pregnancy to the European Court of Justice under its preliminary ruling system (now
Article 234 of the Consolidated Version of the Treaty Establishing the European Union). The final
application of the law, in light of the view of the European Court, to the facts, is left to the national
Case C-394/96, Brown v Rentokil  ECR 1–4185
Brown’s employment contract speciﬁed that prolonged absence (26 weeks continuous illness)
would justify dismissal. She became pregnant and endured various complications which caused
her to be off work. Her employer notiﬁed her that 13 weeks had elapsed and if she did not
return to work by the end of the 26-week period (following an independent medical examination), then her employment would be terminated. Her contract was terminated and her baby
born a few weeks later. Brown’s prolonged absence meant that she fell outwith the provisions
of the national Employment Protection (Consolidation) Act 1978 as she was not in work for two
years prior to the 11th week before the expected period of conﬁnement.
16 According to settled case law of the Court of Justice, the dismissal of a female worker on
account of pregnancy, or essentially on account of pregnancy, can affect only women and therefore constitutes direct discrimination on grounds of sex (see Case C-177/88 Dekker v Stichting
Vormingscentrum voor Jong Volwassenen (VJVCentrum) Plus 1990 ECR 1–3941, paragraph 12;
Hertz, paragraph 13; Case C-421/92 Habermann-Beltermann v Arbeiterwohlfahrt Bezirksverband
1994 ECR 1–1657, paragraph 15; and Case C-32/93 Webb v EMO Air Cargo 1994 ECR 1–3567,
17 As the Court pointed out in paragraph 20 of its judgment in Webb, ‘by reserving to
Member States the right to retain or introduce provisions which are intended to protect
women in connection with pregnancy and maternity’, Article 2(3) of Directive 76/207 recognises
the legitimacy, in terms of the principle of equal treatment, ﬁrst, of protecting a woman’s
biological condition during and after pregnancy and, second, of protecting the special
relationship between a woman and her child over the period which follows pregnancy and
18 It was precisely in view of the harmful effects which the risk of dismissal may have on the
physical and mental state of women who are pregnant, women who have recently given birth
or women who are breastfeeding, including the particularly serious risk that pregnant
women may be prompted voluntarily to terminate their pregnancy, that the Community
legislature, pursuant to Article 10 of Council Directive 92/85/EEC of 19 October 1992 on the
introduction of measures to encourage improvements in the safety and health at work of
pregnant workers and workers who have recently given birth or are breastfeeding (tenth
individual Directive adopted within the meaning of Article 16(1) of Directive 89/391/EEC) (OJ
1992 L 348, p. 1), which was to be transposed into the laws of the Member States no later than
two years after its adoption, provided for special protection to be given to women, by prohibiting
dismissal during the period from the beginning of their pregnancy to the end of their maternity
leave. Article 10 of Directive 92/85 provides that there is to be no exception to, or derogation
from, the prohibition of dismissal of pregnant women during that period, save in exceptional
cases not connected with their condition (see, in this regard, paragraphs 21 and 22 of the
judgment in Webb).
Pregnancy has been variously treated as equivalent to a male illness and a disability. The view of the
European Court appears to be that any measure affecting only pregnant women constitutes direct
discrimination by reason of the fact it only affects women. The ECJ has continually advanced the law
in this field.
14.2.3 Towards equality of rights between men and women
Achieving equality is an ongoing process and clearly a goal for the United Nations. The Beijing
Fourth World Conference on Women notes equality and non-discrimination in practice and fact as
one of its strategic objectives. The following recommendations were made.
Beijing Platform for Action 1995 Strategic objective 1.2. Ensure equality and nondiscrimination under the law and in practice
Actions to be taken
232. By Governments:
Give priority to promoting and protecting the full and equal enjoyment by women and men
of all human rights and fundamental freedoms without distinction of any kind as to race,
colour, sex, language, religion, political or other opinions, national or social origins, property, birth or other status;
Provide constitutional guarantees and/or enact appropriate legislation to prohibit discrimination on the basis of sex for all women and girls of all ages and assure women of all ages
equal rights and their full enjoyment;
Embody the principle of the equality of men and women in their legislation and ensure,
through law and other appropriate means, the practical realization of this principle;
Review national laws, including customary laws and legal practices in the areas of family,
civil, penal, labour and commercial law in order to ensure the implementation of the principles and procedures of all relevant international human rights instruments by means of
national legislation, revoke any remaining laws that discriminate on the basis of sex and
remove gender bias in the administration of justice;
Strengthen and encourage the development of programmes to protect the human rights of
women in the national institutions on human rights that carry out programmes, such as
human rights commissions or ombudspersons, according them appropriate status,
resources and access to the Government to assist individuals, in particular women, and
ensure that these institutions pay adequate attention to problems involving the violation of
the human rights of women;
Take action to ensure that the human rights of women, including the rights referred to in
paragraphs 94 to 96 above, are fully respected and protected;
Take urgent action to combat and eliminate violence against women, which is a human
rights violation, resulting from harmful traditional or customary practices, cultural prejudices and extremism;
Prohibit female genital mutilation wherever it exists and give vigorous support to efforts
among non-governmental and community organizations and religious institutions to eliminate such practices;
Provide gender-sensitive human rights education and training to public ofﬁcials, including,
inter alia, police and military personnel, corrections ofﬁcers, health and medical personnel,
and social workers, including people who deal with migration and refugee issues, and
teachers at all levels of the educational system, and make available such education and
training also to the judiciary and members of parliament in order to enable them to better
exercise their public responsibilities;
Promote the equal right of women to be members of trade unions and other professional
and social organizations;
Establish effective mechanisms for investigating violations of the human rights of women
perpetrated by any public ofﬁcial and take the necessary punitive legal measures in
accordance with national laws;
PROTECTING AND PROMOTING THE RIGHTS OF WOMEN
Review and amend criminal laws and procedures, as necessary, to eliminate any discrimination against women in order to ensure that criminal law and procedures guarantee
women effective protection against, and prosecution of, crimes directed at or disproportionately affecting women, regardless of the relationship between the perpetrator and the
victim, and ensure that women defendants, victims and/or witnesses are not revictimized
or discriminated against in the investigation and prosecution of crimes;
Ensure that women have the same right as men to be judges, advocates or other ofﬁcers of
the court, as well as police ofﬁcers and prison and detention ofﬁcers, among other things;
Strengthen existing or establish readily available and free or affordable alternative administrative mechanisms and legal aid programmes to assist disadvantaged women seeking
redress for violations of their rights;
Ensure that all women and non-governmental organizations and their members in the
ﬁeld of protection and promotion of all human rights – civil, cultural, economic, political
and social rights, including the right to development – enjoy fully all human rights and
freedoms in accordance with the Universal Declaration of Human Rights and all other
human rights instruments and the protection of national laws;
Strengthen and encourage the implementation of the recommendations contained in the
Standard Rules on the Equalization of Opportunities for Persons with Disabilities, paying
special attention to ensure non-discrimination and equal enjoyment of all human rights
and fundamental freedoms by women and girls with disabilities, including their access to
information and services in the ﬁeld of violence against women, as well as their active
participation in and economic contribution to all aspects of society;
Encourage the development of gender-sensitive human rights programmes.
Much remains to be done: more women than men suffer from a lack of educational opportunities;
more women than men suffer from the effects of famine, pandemic diseases etc. Interestingly, the
Beijing Platform for Action also mentions achieving legal literacy as a strategic objective.
BEIJING PLATFORM FOR ACTION 1995, para. 227
While women are increasingly using the legal system to exercise their rights, in many countries
lack of awareness of the existence of these rights is an obstacle that prevents women from fully
enjoying their human rights and attaining equality. Experience in many countries has shown
that women can be empowered and motivated to assert their rights, regardless of their level of
education or socio-economic status. Legal literacy programmes and media strategies have
been effective in helping women to understand the link between their rights and other aspects
of their lives and in demonstrating that cost-effective initiatives can be undertaken to help
women obtain those rights. Provision of human rights education is essential for promoting an
understanding of the human rights of women, including knowledge of recourse mechanisms to
redress violations of their rights. It is necessary for all individuals, especially women in vulnerable circumstances, to have full knowledge of their rights and access to legal recourse against
violations of their rights.
14.2.4 Afﬁrmative action/positive discrimination
Note, however, that equality of treatment does not necessarily denote equality in fact. If a woman
and a man were in unequal positions to begin with then treating them with total equality will
simply perpetuate the difference between them. Consider the following hypothetical example. A
man and woman are employed in the same law firm. Each has identical experience and qualifications
and both commence work at the same time.