Convention on Eliminating all forms of Discrimination
against Women and Its Application
Huang Lie
I. Background of the Women Convention
International Charter on Human Rights provides that all human beings are equal in
enjoying all human rights. Then, why a separate legal document was especially
formulated for women?
Women have been undertaking long-term struggle to obtain legal personality, equal
treatment and enjoyment of basic human rights. Women’s worldwide social status
have been improved, however, social structure and prejudice have still been obstacles
against full and prompt realization of women’s human rights. 20th century witnessed a
series of changes as well as frustrations. Women’s human rights, even during peaceful
period, have not deserved due concerns.
Constituting half of world’s population, women are not guaranteed to equal and
effective enjoyment of human rights. Even today, women are treated unequally in
almost all societies and fields in laws and in practices (illiterate, poverty, unequal pay
for equal work in regard to sex and rate of participating in political affairs). As there
are universally historic and structural discrimination, elimination of all forms of
discrimination against women and safeguard of women’s rights are necessary in order
to promote women’s status and improve their status quo.
Women Convention adopted by the United Nations General Assembly in 1979 aimed
at strengthening provisions in international legal document against existing
discrimination against women. Entitled as international charter on women’s human
rights, the convention constructed a legal framework that safeguarded women’s equal
rights and their human rights.

Professor of Institute of Law, CASS.
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II. Characteristics and basic principles of Women Convention
(I) Characteristics of Women Convention

A all-around, comprehensive and systematic stipulation on women’s rights
The first international convention on human rights that gives concerns to
women’s social roles, status and so on, including all problems and concerns
into a legal document; the first international convention on human rights that
systematically stipulates women’s rights; providing not only goal to be
achieved in women’s rights and sexual equality, but also detailed actions and
measures.

Clear definition on sexual discrimination Various discrimination forbidden
in the convention include indirect and direct discriminations, covering
superficially neutral laws and practices that are against women in influence
and aftereffect.

Indivisibility of human rights
Women’s human rights narrated in the
convention covers both civil and political rights, and economic, social and
cultural rights.

Introduction of issues neglected by previous international convention on
human rights into legislative scope, especially reference to special problems
faced by rural women; right to public affairs was expanded in formulation
and execution of government policy, as well as non-governmental
organizations related to national public and political activities. Participation
right is expanded into representatives of native government at international
level.

Stress on eliminating discrimination in custom, convention, culture and
social behavior The convention emphasizes that supporting environment
for legal standards and criteria is as important as themselves so as to realized
actual sexual equality. It is necessary for the treaty powers to reform both
laws and unfavorable cultural custom and practice to change social and
cultural behavior modes of men and women.
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
Beyond partition of public/private fields
The convention points that
pressure on women in private space is a kind of infringement upon women’s
human rights, and confirms that women should enjoy extensive rights in
fields of family, working place and public. The treaty powers must eliminate
discrimination in public and private fields.
(II) Basic principles of Women Convention

Equality and non-discrimination principle
Be sure to safeguard
indistinguishable human rights provided by the convention, so as to ensure
equal treatment of men and women. The convention emphasizes on equal
rights and guarantee disregard of sex.

Sustantial equality principle For different social roles and status between
men and women, “legal” equality sometimes should result in substantial
discrimination. Formal equality (neutral criterion) reflects blind spot of
social gender as law and policy totally overlook relativity of gender. Some
provisions in the convention (Article 2 and Article 4) mean that emphasis is
shifting to stress on “equal result” and “equal benefit”, a development to
substantial equality.

Principle of governmental obligations
The convention emphasizes on
“treaty power’s promise to take measures”, and in detail stipulates
obligations and their properties as: active obligation, behavior obligation
(Article 2) and result obligation (Article 3 and Article 4-16), obligation
adopting all suitable measures to eliminate discriminations of individual,
organization or enterprise against women (violence upon women)
III. Main Contents of Women Convention
In the preface, the convention clearly admits “universal discrimination against
women”, defines concept of “discrimination against women” (Article 1) and requires
the treaty powers to promise that they will eliminate gender discrimination by
legislation and other measures (Article 2). The convention encourages treaty powers
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to take special provisional measures to speed up realization of subtantial equality
between men and women (Article 4).
In Article 6-16, the convention develops detailed equality agenda, covering almost all
fields: political rights (Article 7-8); right to education, employment, health and
economic and social activity (Article 10-13); civil competence and economic affairs
(Article 16E). The convention especially pays attention to rural women’s problem
(Article 14), and calls on prohibition of vending women and exploiting women
through their prostitution (Article 6).
The convention emphasizes on eliminating on cultural, traditional and outdated roles
that restrict women’s rights and freedom and impart women’s development. The
relevance between these factors is further interpreted in the preface and Article 5. The
convention requires the treaty powers to change the traditional roles that men and
women play in society and family, in order to eliminate prejudice on men’s superiority
over women and some practices prevailing.
IV. Application of Women Convention in special women’s issues
(I) Definition of discrimination against women
“------definition of ‘discrimination’ in the convention is regarded as part of Chinese
law, and can be applied in Chinese law”.
In accordance with definition of “discrimination” in the convention, there are indirect
and direct discriminations in our current laws.
For example, stipulation on different retirement age between men and women
(Provisional Regulations on National Public Servant by State Department in 1993). In
accordance with interpretation by “Committee on Human Rights Affairs”, supervising
institution of ICCPR, stipulation on different retirement age between men and women
has been defined as discrimination in term of Article 3 and Article 26 of the
convention. Committee on Eliminating Discrimination against Women, in its
discussion about reports of the treaty powers, indicates that women’s retirement in
advance should not be considered as active movement concerning provisional special
measure under Article 4 of Women Convention.
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Cases that challenge direct discrimination are relatively easy, but introduction of
definition of indirect discrimination of the convention is hard to deal with. For
example, provision of equal division of marriage property, a superficial neutral article,
actually will turn out to differently influence women and men.
(II) Right to participating in political affairs
According to statistics issued on Internet on January 25, 2000, number of female
representatives of the National People’s Congress is decreasing in international rank,
12th in 1994, 16th in 1996 and 20th in 2000.
The fact that women’s participation in policy making is excluded and marginalized
results in ineffective reflection of women’s problem, concern, experience and
requirement in law and policy. Article 7 and Article 8 of Women Convention specially
stipulate and emphasize that the state, in view of unequal treatment in history and
unfavorable status in reality, should take active measures, including provisional
measures such as quota system, reserved seat and so on. Our country should adopt
active measures to safeguard women’s participation in political affairs, covering
policy promoting female participation in political affairs, establishment of supervising
institution safeguarding execution of relative policy and law and implementation of
rate guarantee system. In addition, the most important measure that should be taken to
make this improvement is building up opinion that women and men are equal.
(III) right to labor
In relation to employment and labor, China formulates series of laws that provide
women with special protection, including stipulated protection during “menstrual
period, pregnancy, childbirth and menopause”, type of work “unsuitable” for women
to undertake, required “pregnant women restroom, suckling room and kindergarten”
set by conditioned enterprise and so on. But are these protective legislation really in
favor of women?
For example, as employing female workers relatively high costs, women are declined
in employment and enterprise employing male workers is not in duty bound to set up
“nursing room or kindergarten”. In addition, some stipulations involving around
women’s physiological periods put restriction to women’s capable working time and
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place, and consequently make women lose equal chance and development possibility,
and aggravate vocational gender segregation.
If legislation is purely made according to definition of “discrimination” in the
convention and stipulation of protecting “maternity”, the result may be an exclusion
of men’s equal responsibility of looking after and nursing children, strengthening
women’s outdated social role of being just the wife and mother. In this way, the
legislation can be considered as related indirect “discrimination”, and therefore,
women become victims rather than beneficiary of protective legislation for the lack of
employment chance.
What’s more, there are some other problems existed in employment field, such as
unequal employment chance caused by discriminative recruitment (sex, age and
marital status), women’s general inferior income to men’s, sex difference policy on
male and female retirement age, personal security and gender harassment at work,
glass ceiling (women’s entry into economic management policy decision level) and
etc. Compared with Article 1 and Article 11 of the convention, our country should
actively undertake obligation and devote to eliminating gender discrimination in
employment. The discrimination definition in the convention is necessary condition
for law on equal employment chance regardless of sex. In this way, discriminations in
recruitment advertisement, employment test, promotion treatment and childbirth
security can be regarded illegal. Secondly, any execution of law depends on relative
security system regardless of sex, and at the same time, discrimination sanction and
compensating system are necessary for eliminating gender discrimination. In addition,
measures that assure women’s equal employment chance during or before working,
including education and training chances, equal pay for equal work regardless of sex
and free of sexual harassment, are also necessary.
(IV)rural women
Women in rural areas in China are mostly discriminated from perspectives of culture
and system, such as unequal treatment in family, property, healthcare, family planning.
What’s more, rural women are often deprived of land use right and property
succession for marital status.
One of the most outstanding problems is rural women’s land use and management
right. In some superficially neutral policies, such as policy of “increasing and
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decreasing people instead of land” and 30-year land contract adopted by Ministry of
Agriculture in 1995, Land Management Law in 1998, Country Land Contract Law
taking effect in 2003, there are clear stipulation on equal rights of men and women in
country land contract, but neutral legislation and policy cannot ensure their equal
benefits as their different social environments.
According to Article 4 and Article 14 of the convention, in order to resolve
discrimination and unequal treatment of women in history and reality, our government
should first pay special attention to country women’s rights, and, by improving
legislation and policy on land management and use, realize the unfavorable influence
and aftereffect brought by country marriage, “living with husband” and “family
householder system”. Secondly, the government should take provisional special
measures, and improve status quo of unequal land resource distribution between men
and women by active policy intervention (in the policy setting special articles and
clear stipulations safeguarding women’s land use and management right, issuing
document that eliminates discrimination against women in view of land). Thirdly, the
government should make effort to eliminate outdated sex role opinion and
discriminative society, and change marital structure (bearing son against old age) that
reflects unequal right and interest distribution. At last, the government should, by
various provisional special measures, assure rural women’s education and training
rights, and at the same time perfect taxation and social security system, so as to lay a
solid foundation for rural women’s all-around development and equal benefit.
(V) Violence to women
In the series of general comments issued by Committee on Eliminating Discrimination
against Women, No.19 general comments concerning violence to women in 1992 may
be of the most significant.
In view of the fact that worldwide women are seriously violated, the committee issued
No.12 general comments on violence in 1989, according to Article 21 of the
convention. In this general comments, the committee pointed that Article 2, 4, 11, 12
and 16 in Women Convention required the treaty powers to take action to protect
women from any form of violence in family, working place or other social living
space. In the No.19 general comments, the key step adopted by the committee was
putting gender-based violence into general forbidden range of gender-based
discrimination. The committee confirmed that no matter the violence agent is public
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official or individual, and no matter the violence takes place in public place or private
location, violence to women is a violation of internationally recognized human rights.
According to Declaration on Eliminating Violence to Women adopted by U.N. general
assembly in 1993, definition of “violence to women” is “any sex-based violence that
may cause physical, psychological or sexual damage or suffering to women, including
threat of such kind of action, compulsive or arbitrary deprivation of freedom”.
In accordance with definition on violence to women by international institution on
human rights, there are problems in legal framework and implementation of
elimination of family violence, in term of the committee’s requirement of examining
our current legislation. Our country presently has no special legislation in field of
violent to women, and no definition on family violence or violence crime in our law.
Principle stipulation in marriage law forbids family violence and gives related
disposal method, however is not practical to operate. According to related judicial
interpretation by Supreme Court, China’s current definition on family violence falls
short of general definition adopted in Declaration on Eliminating Violence to Women,
exclusive of spiritual and sexual violence.
As one of the treaty powers of Women Convention, the government should first adopt
general definition adopted internationally and expand scope of family violence that
hurts women. Secondly, in view of the seriously rising family violence, the
government should devote to legislative measures, strength judicial security for victim
through providing criminal sanction, civil relief, and stipulate orders of security and
provisional injunction to establish operable and timely security system in preparation
for family violence prevention. Thirdly, the government should adopt other
precautionary and protective measures to protect women from violence in public and
private fields, such as training judger, policy, officer and medical worker on family
violence and increase their gender consciousness, and provide women victim with
shelter, legal consultation and social supporting service and etc. At last but not the
most, our government and society, in handling family violence, should pay attention
to unequal social structure and unequal right relationship.
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