On Woman’s Right to Development and its Legal
Protection
Wang Xigen
Zhan Hongfeng1
Abstract: Development of woman’s human rights faces many difficulities. The key to
inadequate protection of woman’s rights lies in the vague understanding of the essence
of theory of woman’s right to development. In stead of specific economic, social and
cultural rights, the essence of woman’s rights lies in their equal right to development as
man to participate in economic, political, social and culture development and enjoying
the achievements. Assurance or Realization of woman’s right to development usually
requires welfare to be provided by the government or its active participation.
Key Words: Woman, Woman’s Right to Development, human rights, legal protection
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I. Dilemma that woman’s right to development faces
It is well known that woman’s social and economic status have taken drastical changes,
since foundation of People’s Republic of China. However, protection to woman’s rights
begins to ask for new requirements, opportunities and challenges, as deep development
of market economy system and comprehensive welfare society.
Based in Constitution, China has formed on the comprehensive legal protection system
for woman’s rights, with fundamental part The Assurance Law of Woman’s Rights and
Interests, including Labor Law, Maternal and Child Health Law, Rules for Protection of
Female Workers, Notice on Scope Prohibiting Woman Employment, Notice on Several
Issues regarding Childbirth Treatment of Female Workers, FAQ to Rules for Protection
of Female Workers. Chinese laws not only confirm equal employment of man and
woman and equal pay for equal work irrespective of sex but also protect some special
rights and interests of women. For example, female employees are forbidden to be
engaged in unsuitable work, such as working under mine, forest-lumbering,
state-regulated 4th level physical force intensity work; “4 periods” protection for female
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*Wang Xigen, male, born in 1965, Tianmen city of Hubei Province, professor and doctor tutor of institute of law in
Wuhan University, mainly dealing in research of law of human rights and law theory. Zhan Hongfeng, male, born in
1981 in Huangmei city of Hubei Province, master graduate student of nomology major in institute of law in Wuhan
University, mainly dealing in research of law theory and constitution study.
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workers from being laid off or dismissed on menstrual period, pregnant period,
confinement period and lactation period without legitimate reasons; no discrimination
on women in promotion, house allocation and beneficial treatment. In this case, we can
see that legal protection of women’s rights are of relative maturity, but they are
sometimes difficult to be implemented, for example:
Equal pay for equal work irrespective of sex is regulated by law and is a mark of social
improvement. Furthermore, China not only apporved Convention on Equal Pay for
Equal Work Irrespective of Sex in 1951, but also has clearly regulated in Labor Law that:
“laborer’s employment should not be discriminated in term of nationality, race, sex and
religion belief”, what’s more, other related legislation have stated that there should be
no refusal to women by reason of sex or unfair employment standard on women.
Actually, for supply exceeds demand in labor market, some recruiting units deliver
various forms of discrimination to women in their recruitments.
What’s more, some women’s right to basic maternity leave and paid leave are seriously
imparted. Paid leave is laborer’s basic right which has been regulated in state law for a
long time. For example, in Constitution Clause 43 states that: “laborers of People’s
Republic of China have right of taking rest. State develops facilities for laborer’s rest
and recreation, and regulates employee’s working time and leave system.” in Labor Law
Clause 45 states that: “State implements annual paid leave system. Laborer who works
continuously for one year and above can take paid leave. Detailed measures are
regulated by State Department.” Ministry of Labor especially issued The Trial Measure
for Childbirth Insurance of Enterprise Employees which makes enterprises that whether
employ or not female workers should pay childbirth insurance fee to social insurance
agency in rate of gross employees’ incomes, so as to set up childbirth insurance fund.
However, there are some units recruiting female employees force them to sign contract
on guarantee of no childbirth within a few years, which is actually a negation in
disguised form to women’s rights of maternity leave and paid leave. Because that
related law is too general in regulation of paid leave, and thus is difficult to be
implemented. Besides unendurable labor intensity, some female workers and employees
in private enterprises or foreign-funded enterprises are working without maternity leave,
which leads to their serious health breakdown.
In labor market, we can see that women are inferior to men. Generally speaking,
women’s culture, skill and psychological quality is inferior to men, which leads to
women’s less social resource and opportunities than men’s. Women’s different physical
force and physiological structure require that their working environment and protective
measure should be different from men’s for the offspring’s sake. Elements of family
affairs, child nursing and so on traditional division of labor by sex make women
uncompetitive in working competition.
Women’s characteristics make protection of women’s rights different from the general
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human rights protection. Only by radical reform on background of woman’s
characteristics and reality and academic instruction, problems on woman’s rights can be
resolved correctly.
II. Value Oritention of woman’s right to development
In addition to social transformation and interests conflict resulted from the system
reform, vague understanding of the essence of woman’s right to development
theoretically is an key reason for leading to inadequate protection of woman’s rights.
We believe that in order to build effective protective system of women’s rights, there
should be some clear understanding: the essence of women’s rights lie in equal
attendance in economic, political, social and cultural development and their
achievements as men. Based on equal opportunities and wholesome development, this
kind of rights to development is uppermost form and ultimate end-result of woman’s
rights, and all legislation on woman’s rights and interests protection should revolve
around this basic point.
Woman’s right to development is necessary trend and demand of the development of
human rights. On methodology, there are two ways of testifying some human rights: one
is experiential type, regarding justice of human rights derives from some accomplished
fact, custom or criterion; the other is transcendental type, regarding human rights form
in term of abstract moral principle, law of nature or logos spirit and derive from inherent
characteristics. Following experiential type, narrow point of view is easy to be used in
ignorance of legislative original intention and essence. It is discussable for ignorance of
woman’s rights development only in accordance with that woman’s rights to
development does not appear in current law documents. Actually, woman’s rights to
development are one part of key rights to development related to state legislation.
Confirmation to woman’s rights to development is key to establishment and
consolidation of the whole law of human rights.
1. Continuous exteriorization of inherent requirement is the logic start-point for
woman’s right to development. There are two conditions for proposition of rights to
development: one is that requirement of development cannot be satisfied by itself; the
other is that there is objective possibility for requirement of development enabled by
more or less outside material base or economic condition. Viewing across the world,
woman’s rights movement has been rising since 19th century, and still now like a raging
fire. There is historical development tendency for women to enjoy the same civil rights
as man. Now discrimination on women has been swept into historical dump. However,
for various reasons, women are still in weak position in reality, and never enjoy the
same civil rights as men, not mention of economic, social and cultural rights. Women’s
development for social status, material and spiritual living quality are subjective
conditions for shaping of woman’s rights to development.
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2. Increasing productivity of human being is practical base for woman’s right to
development. Just as Marks has said that capital led to “productivity or wealth
becoming base for development, as well as communication becoming base for
worldwide market. This kind of base is condition fro individual’s wholesome
development.” 2 In feudalistic society, lack of woman’s rights to development was
caused by bondage of “Divinity right, regality, clan authority and father right”, and
seriously lack of rights to survival of most people. After modern industrial revolution,
productivity assumes unprecedented development, leading to improvement of woman’s
status, rights survival and health care. A lot of women begin to work out family and
become powerful. Getting rid of survival pressure, women are acquired with full-scale
development freedom, and consequently their rights to development have practical
bases.
3. Woman’s right to development takes strong differentiation of social relations as its
direct motivation. Harmonious social division of labor is artery of social evolution,
providing social attendance with opportunities of continuous improvement and
self-realization. However, unfair or unreasonable social division in labor will impede
social development and impart objective power of each social element. For thousands of
years, China has all the way pursued “Men dominate outside and women preside inside”,
consequently women’s living space has been greatly limited and their economic and
social status was far below men. This type of social division of labor has done great
harm to women’s development opportunities. As drastically changed social division in
labor, more and more women have their own career resulting in more and more
development opportunities.
4. Woman’s right to development takes it as ultimate goal of all-around promoting
women’s equal participation in economic, social, political and culture affairs and
enjoying the achievements. In stead of a simple unification of women’s rights on
economy, society and culture, woman’s rights to development is a high abstract on all
aspects of woman’s demand of wholesome development, and an organic integration of
human rights of various structural forms. Being dynamic, realization of woman’s rights
to development is a long process with changing content. As continuous improved
content and optimized essence of human rights, woman’s rights to development will
unceasingly take in new human rights elements and become more open. Admission of
woman’s rights to development means confirmation of the equal development
opportunity between women and men, as well as various women’s rights in economic,
social, political and cultural activities.
In a word, woman’s right to development should be backbone in unifying, integrating
and advancing all material women’s human rights, in which these separate human rights
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Marks and Engels Collect the 2nd half part of Volume 46, P109.
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be included in the top concept of right to development through effective establishment
and realization of unified legal concept and the top legal provisions.
III. Related measures for protecting woman’s right to development
Equal development opportunities and right to all-around development are keys to clear
understanding of woman’s human rights. It not only helps reflect and re-identify
woman’s human rights, but also advantageous for establishing better legal system of
woman’s human rights. In term of law theory of rights to development, the core of
women’s human rights lies in that it is society-related rights for cooperation between
individual, collectivity and state. Woman’s rights to development always ask for
national benefits and active attendance of state to protect the realization. Therefore, it is
necessary for us to discuss related protective measures for woman’s rights to
development.
1. Protection by constitution. Woman’s rights to development should be clearly brought
into constitution, and thus acquire this basic law’s protection. There are some
prescriptions in Constitution on women’s right. For example, in Clause 8: “Women in
PRC enjoy such equal rights on politics, economy, culture, society and family as men.
State protects women’s rights and interests, carries forward equal pay for equal work
irrespective of sex, and cultivates and selects female cadres”; in Clause 49: “Marriage,
family, mother and children are under state protection.” “No permission to breach
marriage freedom, abuse elder, women and children.” Actually these prescriptions only
list all rights one by one to confirm woman’s rights to development, in stead of directly
confirm pro woman’s rights to development, resulting in indistinctive connotation of
human rights. Woman’s rights to development are suggested to be announced abstractly
in the constitution’s “Preface” or “General Program”, as well as be prescribed in detail
in “people’s basic rights and obligations”.
2. Protection by legislation. Harm to woman’s rights to development comes from
misbehavior of legislature or legislative conflict to great extent. Consideration of
whether respecting and safekeeping woman’s rights to development in legislation is
precondition for effective protection of woman’s rights to development. In related
legislation on women, woman’s rights to development deserve full respect. Though The
Assurance Law of Woman’s Rights and Interests confirms women’s political rights,
cultural education rights and interest, labor rights and interests, property rights and
interests, personal rights and interests and rights and interests of marriage and family,
which are all important parts of human rights to development, the law has not yet
clearly confirmed woman’s rights to development and been of a lot of problems for its
long implementation. A great deal of prescriptions on woman’s rights to development
dispersedly exists in various laws, rules and regulations or judicial interpretation, being
unsystematic and inconvenient to lookup or exercise. Timely emendation on The
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Assurance Law of Woman’s Rights Interests or specially constituted Woman’s Rights to
Development is suggested for legislature.
3. Protection by law enforcement. As a leading right, rights to development, which is
confirmed by constitution or related laws, sometimes is disaffirmed by court. As a
matter of fact, rights should enable relief and judicatory should enable that woman’s
rights to development can resort lawsuit. On condition that there is legislative blank,
some effective constitutional compensative measures or legislative interpretation made
by judge citing benchmark clauses of woman’s rights to development should turn up to
effectively resolve legislative conflicts, so as to strongly protect woman’s rights to
development and maintain unification of legal system. Infringements of woman’s rights
to development by administrations, especially those of grass-root level, are mostly in
form of order, command and so on administrative criterion documents of universal
sanction. In our active lawsuit system, though court has censor right to administrative
criterion documents on some degree, the right often stays superficial in practice. Censor
by court to abstract administrative criterion documents or by some special organizations
to those documents violating constitution should be conducted so as to prevent harm
generated by national public rights to woman’s rights to development. This is
requirement for protection of woman’s rights to development as well as implementation
of law and human rights protection.
4. Protection by special organization. Protection of woman’s rights to development
relies on special organizations. “Woman’s Status Committee” was set up by 32 members
in 1947 inside United Nation, responsible for conducting research and delivering report
and suggestions on human rights and related influential problems to woman’s status. It
plays a key roll in driving U.N. to eliminate legislative and actual discrimination on
women, as well as drafting criterion documents on this kind of problems. Convention on
Eliminating All Discriminations on Women also has requirement in shaping “Committee
of Eliminating Discriminations on Women”. Though there is organization inside
Chinese Women’s Union, it functions poorly on protection of woman’s rights to
development and providing legislative aide or relief to woman whose rights to
development is encroached. Women’s Union should function mainly on implementing
national women’s policy, organizing all women and reflecting their voices and appeals.
In order to meeting international organization that protects women’s human rights as
well as providing legislative aide to women whose rights to development is infringed,
Women’s Union is suggested to enhance functionality on protecting woman’s rights to
development.
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