Péter Kovács, PhD, Dr Habil
Professor
Miskolc University
Faculty of Law
Dept. of International Law
3515 Miskolc-Egyetemváros
Hungary
&
Péter Pázmány Catholic University
Faculty of Law
Dept. of International Law
1088 Budapest, Szentkirályi u.28
Hungary
How does Women’s Human Rights Enter into
the Field of Human Rights?
China - EU Dialogue Seminar on Human Rights (Beijing, September
26-27, 2004)
Peter Kovacs: How does Women’s Human Rights Enter into the Field of Human
Rights?
1. Early History of Women’s Legal Status
Human rights type protection of women’s status is undoubtedly the fruit of the last two
centuries. This does not mean however that formerly, women (and especially all women) were
deprived of legally circumscribed social status. Even in history, you will remember the so
called matriarchy i.e. the organizational system of states based on the descendance from the
mother. This truly well functioning mechanism of prehistory (and the first part of our
common, documented history) disappeared however with the emergence of private property.
This change can certainly be explained by several reasons linked to simplicity, monoteism in
religions, improvement of health and preponderance of agriculture based on individualizable
fields. For the last milennia – at least in Europe – the eligibility to inheritance mainly by
descendance was proved on father’s line: christianity only accelerated the tendency previously
emerged e.g. by the refusal of the levirate often practised by nomads.
The heritage of the roman law also played an important role in the postulation of women’s not
only de facto but also de jure second class position. Just like minors, who were under their
father’s tutorship (patria potestas), women living in marriage fell under a similar institution
called ”manus” which was exercised by the husband (matrimonium cum manu). If the
husband himself was a minor, the manus was exercised by the pater familias. The marriage
caused a special civil law restriction on the status of woman (capitis diminutio minima): she
was not entitled to get property on her own name; all the wealth acquired belonged to the
family and related competences were exercised by the man enjoying the prerogatives of the
manus. Roman law knew however another type of marriage as well (matrimonium sine manu)
where the woman preserved her previous status: remaining under the patria potestas of her
father, or enjoying special free status (sui juris) with competence to preserve the previous
wealth acquired prior to the marriage (parapherna). Roman law specialists consider that these
two versions of the traditional Roman marriage (matrimonium juris civilis) were practised
historically in a different way: while the matrimonium cum manu was more popular at the
beginning of the history of Rome, historical development multiplied the marriage without
manus, the matrimonium sine manu. Women’s personal competences were however restricted
vis-à-vis males in Rome nearly till the IVth century AD. Either the husband, or the pater
familias or her tutor had to pass a declaration in order to confirm her will to act or to sue
(mancipatio, in iure cessio), and she could not even be either the witness of more important
contracts, nor could she be a guarantor, etc.
After the collapse of the Western-Roman Empire, Frankish law followed grosso modo the
same philosophy and called this institution mundium or „Mundschaft”. This approach
characterized the legal thinking of the so-called feudal societies of early medieval Europe visà-vis women’s status. During the feudalism, as far as inheritance was concerned, women were
generally underprivileged as compared with men: in case of a son eligible for the heritage,
daughters were eligible only to one fourth of the property in question (quarta puellaris) or at
least to the right for a decent living, according to their status (jus capillare).
This does not mean however that women were ignored in public law in Europe, during the
past millenia. Some women (as everywhere in the world) could enjoy a special status
equivalent to a male’s position. This was especially the case of monarchies where even if
trasmission of throne was based on the primogenitura of males, the breach of the line of
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descendance in case of lack of birth of a royal son, could favour females in acces to a ruling
position. Nearly the same happened when ambitious women acted as trustees, tutors,
dowagers – beacuse they were independent either as singles or as royal widows. During the
feudalism, noble women could act in their name when they were no more under the legal
power of their parents, and when they were not (or when they were no more) under the power
of their husbands. Feudal private law of several countries knew also the praefectio as a special
institution that we could translate as „qualification quasi as legally male”: in case of the lack
of sons on behalf of the testator, the king could choose the daughter (or one of the daughters)
proclaiming her eligible for the direct continuation of the legal existence of the noble family.
This institution was often related to a special legal property (estate-tail or fidei-commissum) In
case of refusal of granting this privilege, some other close branch of the greater family having
a male member was eligible by law to inherit even if he had to act as a tutor for the
possessions of females. When there was no close male member in the family, the wealth could
fly back to the throne after the lady’s death as a single. Her marriage also caused a very
complicated heritage issue between the two families.
2. First Steps to Gender Emancipation
The special ruling position of the Spanish Isabel of Castille, the British Elisabeth I. and Queen
Victoria, the Russian Catherine II., the Austrian Maria-Theresia was not enough in order to
convince societies that women could perform the same duties and enjoy the same rights as
man. In the reversal of the man-oriented way of thinking the emergence of the importance of
human rights since the XVIIth century played a very important role. The acceptance of the
equality of men and women is closely related to the stipulation of equality and the prohibition
of discrimination and the human rights codes adopted during the English and French
revolutions. The way was however very long to go and the first proposals submitted to the
legislation had no concret legal consequences. (English Women’s Petition 1649,
Wollstonecraft, Mary: A Vindication for the Rights of Women 1792, Leon, Pauline et al:
Petition to the National Assembly 1791, De Gouge, Olympe: Declaration of the Rights of
Women, 1791)
3. Legal Reforms and National Examples
However, the young United States of America contributed considerably to the acceleration of
the emancipation. It happened first in Mississippi that property rights were recognized legally
to women even if they were married. The Declaration of Seneca Falls (New York 1848)
pleaded for the end of discrimination against women and in the state of Wyoming women
were allowed to vote at the elections as early as 1869. Finally, the Nineteenth Amendment
(1920) to the US Constitution declared that „The right of citizens of the United States to vote
shall not be denied or abridged by the United States or by any State on account of sex.”
The well organized and media-reflected fight of women for voting rights (the so-called
„sufragette-movement”) in the US and in western-European states often used an argument
which seems very naive from today’s perspectives and experiences: to grant voting rights to
women would put an end to war because no mother would like to send her son to war….
More and more jobs were opened to women having thus an access into the intelligentsia in
their own name: law, health, pedagogy, litterature, arts were the main fields. The evolution of
modern communication technics also invited women to work in the telephone-services or as
dactylo-typists. We must not forget theatres and movies either. A final decisive step was due
to world war one when in a number of countries, the maintenance of the industrial production
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could only be realized by employing masses of women workers – to substitute mobilized men
fighting on the front.
During these decades, it became clear however that equality of the sexes has several
dimensions. The participation of women in the field of job-seeking, syndicalism,
workers’movements convinced states to take into consideration some special women-related
aspects of labour, generally together with the protection of motherhood. German emperor
William II. issued in the decrees of February 1890 inter alia some restrictions concerning
women’s and children’s labour. It’s worth mentioning the 1917 Mexican Constitution (article
123/A/II, V and VII, XI, B/XI/c) containing a number of rules protecting women at jobs and
during pregnancy and after birth. The equal pay for equal job principle is enshrined in this
Constitution with explicit reference against gender based discrimination. (article 123/A/ VII)
In Germany, in the so called 1919 Weimar Constitution, article 109 proclaims „the
fundamentally identical nature of civil rights and obligations of men and women” and it
considers useful to repeat the non-discrimination rule vis-à-vis women working in public
administration (article 128). The protection of motherhood is also proclamed (article 119).
The 1931 Spanish Constitution in its article 43 stipulated the protection of motherhood and in
article 46 it referred to special working conditions for women. The 1936 Soviet Constitution
contained a rather lengthy article 122 about „the complete equality of men and women in all
the economic, administrative, cultural, social and political spheres” completed with
stipulations on equal pay for equal job, the protection of pregnancy and motherhood, etc. This
reference in the Stalinist constitution proclaimed institutions which had been practised in the
Soviet state for a long time. Compared to the Russia of Tsars, a huge network of hospitals,
child-care facilities, maternity homes was established. The proclamation of complete equality
in access to jobs had however a very negative consequence at the artificial and manipulated
labour-market which can even be felt in our days: the maintenance of a minimum level of
living standard supposed since then two wages in the same family: working was an economic
and legal obligation for both husband and wife according to the famous rule „work is
everyone’s right and obligation.” The post WW II constitutions of Europe followed either the
so called social constitutionalization tendencies (i.e. in Germany, in France, in Italy, etc.)
incorporating economic, social and cultural rights, traditional claims of the political left or the
communist approach in countries on the orbite of the Soviet empire. The return to democracy
at the end of the XXth century is generally reflected in the new contitutions by the acceptance
of the western version of civil and political rights and by the maintenance of the major types
of economic, social and cultural rights in their previous formulation.
From the point of view of the gender issue, general equality, non-discrimination, equal access
to jobs, equal pay for equal work are definitely in the national legal systems of post war
Europe. The progressive improvement of the national legal systems has created a favourable
environment for the international law-making as well.
4. International Law-making and Gender Issues: Universalism
We cannot say however that the breakthrough was complete and quick. When border-changes
were decided by the WW-I peace-conferences, peace-treaties contained rules for the benefit of
people having another ethnicity than the majority population of the country to which they will
belong in the future. Such a person had the right to choose, called option: he could opt for the
maintenance of the previous citizenship under the condition of leaving the country. In case of
such a will, the personal scope of application of the will embraced also the wife (and minors).
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The first international organization dealing with gender issues was the ILO (International
Labour Organization) in the family of the League of Nations, elaborating a series of
conventions most of which are still in force even today (cf. the titles infra, at the UN)
The United Nations put a special emphasis on the promotion of women’s legal status by
international commitments. The general human rights documents paid attention not only to
the prohibition of discrimination and the protection of motherhood but also to the free will of
bride in marriage (Universal Declaration of Human Rights (1948) articles 2, 16, 23/2, 25/2;
International Covenant on Civil and Political Rights (1966): articles 23, 24/1, 26;
International Covenant on Economic, Social and Cultural Rights (1966): article 3,). Some
special conventions were also contracted: the Convention on the Political Rights of Women
(1952) proclaims the equality of active and passive voting rights. The Convention on the
Nationality of Married Women (1957) prohibits the formerly exercised automatism based on
the husband’s citizenship: its approach is based on the observance of the woman’s individual
will: she can maintain her original citizenship but she must be in a facilitated situation if she
wants to ask for naturalization in the husband’s state. Divorce cannot have a direct effect on
the acquired nationality. The Convention on Consent to Marriage, Minimum Age for
Marriage and Registration of Marriages (1962) contains detailed rules for the protection of
the free will of the bride when entering into marriage, prohibits the execution of marriagecontracts or promises made by parents, prohibits children-marriage etc. The Convention on
the Elimination of All forms of Discrimination against Women (1979) is shaped following the
style of other anti-discrimination treaties of the United Nations and its recently adopted
Optional Protocol to the Convention on the Elimination of Discrimination against Women
(1999) empowers the monitoring committee established under the Convention (the CEDAW)
to deal also with individual complaints. This newly acquired competence completes the
traditonally practised control by periodical state-reports and the adoption of general
recommendations the number of which is already 25.
The International Labour Organization elaborated also a number of treaties on different
aspects of gender equality and special protection of women; some of them were amended
several times: Convention on Maternity Protection n°3 (1919), n°103 (1952), n°183 (2000),
Convention on Prohibition of Night Work of Women n°4 (1919), n°41 (1934), n°89 (1948)
White Lead (Painting) Convention n°13 (1921), Convention on Underground Work of Women
n°45 (1935), Convention on Plantations n°110 (1958), Benzene Convention n°136 (1971)
Discrimination is prohibited in particular by the Convention on Equal Remuneration °100
(1951) and the Convention against Discrimination in Employment and Occupation n°111
(1958). Beside the conventions, several soft law type documents should be mentioned and in
particular the Resolution on Equal Opportunities and Equal Treatment for Men and Women in
Employment (1985). In the day-to-day activities of the ILO, the Gender Promotion
Programme is aiming to help decision-makers in the shaping of their gender policy and
legislation.
In 1995, the United Nations organized the World Conference on Women in Beijing in 1995
where the so called Beijing Declaration and and a Platform of Action were adopted, thus
creating a follow up mechanism with the cooperation of member states and international
organizations. („Beijing + 5” stock-taking, etc.)
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5. International Law-making and Gender Issues: European Regionalism
In Europe, two organizations have been extremely active in the harmonized european lawmaking on gender issues: the Council of Europe, a classic international organization and the
European Union (European Communities) with special supranational structure and
competences and the so called community law, already independent of traditional
international law.
The Council of Europe is famous for the European Convention on Human Rights (1950), the
most efficacious international human rights treaty. As far as article 14 of the Convention
prohibits all forms of discrimination of rights secured in the Convention inter alia on ground
of sex, the European Court of Human Rights developped an important jurisprudential
interpretation of the issue. With the entry into force of additional protocol 12, the sanctioning
of discrimination could also reach the discrimination of rights secured by law (i.e. national
law). Additional protocol n°7 stipulates the equality of spouses in matters of family and child
care. The European Social Charter (1961) contains grosso modo similar rules vis-à-vis the
place of women in jobs as the above mentioned UN legislation. The Committee of Ministers
adopted several resolutions on the matter, let us cite only the Declaration on Equality of
Women and Men (1988). Recently, ministerial conferences were also organized on the
equality of women and men (1997) or on the role of women and men in conflict prevention
(2003).
The European Communities and community law haave played a decisive role in the ongoing
procedure of guaranteeing gender equality in the Europe of the 6, 9, 10, 15 and for today 25
countries. The Luxembourg based European Court of Justice has founded its progressive
jurisprudence on article 113 of the Rome Treaty prohibiting discrimination inter alia on the
basis of sex. Nowadays, the basic field of the related community activities are gender balance
in decision-making, reconciliation of work and family life, development co-operation and
gender equality, equal pay, education and women’s possibilities, etc. One of the major
reform-treaties, the so-called Amsterdam Treaty (1996) proclaimed the rule of gender
mainstreaming and finally, the Charter of Fundamental Rights (1999) and the Constitutional
Treaty (2004) both refer thereto as one of the basic values and requirements of the European
integration. There is no space here for the enumeration of the long list of pieces of secondary
community legislation in the matter, let us refer only to Council Regulation (EC) n°2836/98
on integrating gender issues in development co-operation, the Council Directive 75/117/EEC
on the approximation of the laws of member States relating to the application of the principle
of equal pay for men and women, the Council Directive 97/80/EC on the burden of proof in
cases of discrimination based on sex or the Council Directive 92/85/EEC 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, etc.
6. Conclusions
I was asked by the organizers to give a general introduction before lectures showing in details
the UN, the Strasbourg or the Luxembourg activity and case-law. That’s why I did not want to
enter into details; my collegues will give an exhaustive overview of these issues. It seems to
be evident, that women’s position and their equality is fully guranteeed in todays international
and european law, as well as in the national law of European and North-American states. This
does not mean however the complete equation of status: very often, the legal situation is much
better than the real situation. Generally speaking, the realization of legislative goals seems to
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be much more secured in places where living standards are higher. Beside the achivements,
one should also keep in mind the newly emerged problems, as e.g. problems and possibilities
of the affirmative action (positive discrimination), quota-systems, high percentage of divorce,
the weakening of socio-political web, abuses of current legal thesis about equality, etc.
Litterature:
- Brósz-Pólay: Római jog (Roman Law) Tankönyvkiadó 1976 Budapest
- Eckhart: Magyar alkotmány- és jogtörténet (History of law and institutions in Hungary)
Politzer 1946 Budapest
- Gardner: Women in Roman Law & Society, Croom Helm 1986 London, Sidney
- Women’s Rights in Europe of the 17th and 18th Centuries
http://www.mcps.k12.mdus/SCHOOLS/WJHS/DEPTS/AP/apworld/dbq/women
- Timeline of Legal History of Women in the United States
http://www.legacy98.org/timeline.html
- Convention on the Elimination of All Forms of Discrimination against Women, Twentieth
Anniversary – A short history of the Convention
http://www.un.org/womenwatch/daw/cedaw/history.htm
- Beijing + 5: Action for Gender Equality and the Advancement of Women
http://www.un.org/womenwatch/daw/followup/session/presskit/presskit.htm
- ILO: Gender: Gender Equality Tool
http://www.ilo.org/dyn/gender/gender.home
- Council of Europe: Equality between women and men (Fact Sheet)
http://www.coe.int/T/E/Human_Rights/Equality/01._Overview
- European Union: Gender Equality
http://www.europa.eu.int/comm/employment_social/equ_opp/index_en.htm
- Arribas & Carrasco: Gender Equality and the EU – An Assessment of the Current Issues
(Eipascope 2003/1)
- http://www.eipa.nl
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