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1 Leading the Way: The International Labour Organisation

1 Leading the Way: The International Labour Organisation

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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

Organisation conventions.

ILO CONVENTION 3, MATERNITY PROTECTION 1919

Article 3

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.

Article 4

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

Article 3

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



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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

account.

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.

Article 4

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

respected.

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

assistance funds.



Question



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.

Question



Should women be protected in a manner which implies they need special protection solely on account of being female?



14.2 Equality

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.



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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.

Question



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.



14.2.1 Non-discrimination

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:



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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.



Question



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



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the Protocol permits the Committee to investigate incidences of systematic violations of the

Convention.

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

territory.

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

States

Inter-American Court of Human Rights – Articles 1, 24 American Convention on Human

Rights

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.



EQUALITY



14.2.2.1 Human Rights Committee – Communications

Ato del Avellanal v Peru, Communication 202/1986, Human Rights Committee, 1988 UN Doc.

CCPR/C/34/D/202/1986 (1988)

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.



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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

the Covenant.



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

infringed.

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.



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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

infringed.

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.

Question



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?



14.2.2.2 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



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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

court.

Case C-394/96, Brown v Rentokil [1998] 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,

paragraph 19).

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

childbirth.

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.



EQUALITY



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:

(a)



(b)



(c)

(d)



(e)



(f)

(g)



(h)



(i)



(j)

(k)



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;



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(l)



(m)

(n)



(o)



(p)



(q)



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.



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1 Leading the Way: The International Labour Organisation

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