Sex Discriminatory Laws: A Challenge to the Integrity of International Law

Vol. 29 No. 3

By

Jessica Neuwirth is the founder and current president of Equality Now, an international women’s rights organization. From 1985 to 1990, she worked for Amnesty International in various capacities including as policy advisor for Amnesty International USA and tour producer for Human Rights Now! She also served as the first chair of Amnesty International USA’s Women and Human Rights Task Force.

The right to equality before the law has been affirmed repeatedly in international law. Article 7 of the Universal Declaration of Human Rights provides that "all are equal before the law and are entitled without any discrimination to equal protection of the law." Comparable provisions are set forth in the International Covenant on Civil and Political Rights, the Convention on the Elimination of All Forms of Discrimination Against Women, and numerous other treaties. The Beijing Platform for Action, adopted at the United Nations Fourth World Conference on Women in 1995, includes as a strategic objective to "ensure equality and nondiscrimination under the law and in practice," (Strategic Objective I.2) and more specifically, paragraph 232(d) of the Platform for Action represents an undertaking to "revoke any remaining laws that discriminate on the basis of sex."

Yet, despite the broad recognition of this right, and the clear and unequivocal call for its implementation, discrimination against women in the most blatant legal forms continues in many countries around the world. Laws explicitly mandating "wife obedience" still govern marital relations in countries including Mali, Sudan, and Yemen. Sudan’s Muslim Personal Law Act of 1991 provides that a husband’s rights in relation to his wife include "to be taken care of and amicably obeyed." Yemen’s Personal Status Act of 1992 even enumerates the elements of wife obedience, including the requirements that a wife "must permit him [her husband] to have licit intercourse with her," that she "must obey his orders," and that "she must not leave the conjugal home without his permission." (The full text of these and other laws can be found in Equality Now’s report "Words and Deeds," online at www.equalitynow.org.)

Many of the explicitly discriminatory laws in force relate to family law, limiting a woman’s right to marry, divorce, and remarry, and allowing for discriminatory marital practices such as polygamy. A broad range of countries around the world, including the United States, explicitly discriminate on the basis of sex in the transmission of citizenship to children, depending on the sex of the parent, and/or in the transmission of citizenship through marriage, depending on the sex of the spouse. Explicit discrimination also pervades inheritance and property law. The Deeds Registry Act of Lesotho, for instance, provides that "no immovable property shall be registered in the name of a woman married in community of property"; Article 1749 of the Civil Code of Chile provides that "the marital partnership is to be headed by the husband, who shall administer the spouses’ joint property as well as the property owned by his wife. . . ."

In many countries, the rules of evidence are explicitly discriminatory. Under the law in Pakistan, for example, in matters pertaining to financial obligations, written instruments must be attested to either by two men or by one man and two women. In Pakistan, four Muslim adult male witnesses must attest to evidence of rape. There is no provision for evidence from female witnesses. Marital rape is explicitly excluded from rape laws in many countries, and across continents there are laws in force, including in Ethiopia, Lebanon, and Uruguay that exempt men from penalty for rape if they subsequently marry their victims. The Penal Code of Northern Nigeria provides that assault is not an offense if inflicted "by a husband for the purpose of correcting his wife," so long as it "does not amount to the infliction of grievous hurt."

Laws that explicitly discriminate against women symbolize at the most formal level the open disrespect of many governments for the fundamental human right of sex equality. And although such laws remain in force in an overwhelming number of countries, these laws represent only a small component of the discrimination women face on a daily basis in every country in the world. Discrimination in the enforcement of law, denial of equal opportunity in education and employment, exclusion of women from political representation, deprivation of sexual and reproductive rights, and the use of social forces and physical violence to intimidate and subordinate women all constitute violations of the right to sex equality. In many countries, abortion is a criminal offense that burdens women exclusively with the legal consequences of terminating an unwanted pregnancy. In some countries, prostitution is a criminal offense for the female prostitute but not for the male consumer who patronizes her. In virtually all countries, there are laws, policies, and practices that are not explicitly discriminatory and yet, effectively deny women the fundamental right to equality.

In June 2000, a special session of the United Nations General Assembly was held to review implementation of the Beijing Platform for Action, five years after its adoption. At the Special Session, an Outcome Document was adopted, outlining the achievements, obstacles, and further actions to be taken by governments and the United Nations to implement the Platform for Action. Paragraph 21 of the Outcome Document cites gender discrimination as an obstacle to the implementation of the Platform for Action, noting that discriminatory legislation persists and in a few cases new laws discriminating against women have been introduced. Paragraph 102(b) of the Outcome Document provides that states should review legislation "with the view to striving to remove discriminatory provisions as soon as possible, preferably by 2005. . . ." The preliminary draft of this document had included 2005 as a clear and unequivocal target date for the elimination of all discriminatory laws. The final document reflects a compromise with substantially weakened language.

Elimination of discriminatory laws does not require the allocation of financial resources—it merely requires political will, a legislative act. Yet, this political will is patently absent, as evidenced by the fact that establishing a target date five years into the future, just to remove explicitly discriminatory legal provisions, was heavily negotiated. In its report, "Words and Deeds: Holding Governments Accountable in the Beijing + 5 Review Process," published for the 2000 Beijing + 5 Special Session of the General Assembly, Equality Now documented explicitly discriminatory laws in force in forty-five countries around the world. These laws are just a representative sampling and constitute a small fraction of the universe of discriminatory laws, which themselves constitute a small fraction of the universe of discrimination against women. Since 2000, almost halfway to the 2005 target date set forth in the Outcome Document, a few countries have repealed the discriminatory laws highlighted in Equality Now’s report. Venezuela adopted a new constitution that removed discriminatory citizenship provisions. Jordan recently repealed a provision of its law that exempted honor crimes from punishment, and Nepal recently passed a law removing some, though not all, of the discriminatory property inheritance provisions that had previously been in force. Yet, in thirty-nine of the forty-five countries highlighted in the report, discriminatory laws remain in effect.

The substantial gap between the rhetoric and the reality of sex equality rights is an indication of the lack of meaningful commitment to the applicable treaty obligations and commitments governments have made in United Nations fora such as the World Conferences on Women. Public pressure can play a role in compensating for the lack of effective enforcement mechanisms. The mobilization of shame in the diplomatic community is a powerful technique too rarely used by governments, themselves fearful of the same spotlight, and nongovernmental organizations continually work to break the silence. But until governments match their interest in setting standards with an interest in implementing the standards they set, the integrity of the legal process will remain a question. Sex equality standards have been clearly established under international law and until the failure to implement these standards becomes a more central focus of international concern, this process will continue to be more rhetoric than reality and a distraction from rather than a solution to the real problem of sex inequality and the various forms of violence and discrimination that it engenders.

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