Translating CEDAW Into Law

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Translating CEDAW Into Law

• CEDAW legislative compliance in Fiji, Federated
  States of Micronesia, Kiribati, Marshall Islands,
  Papua New Guinea, Samoa, Solomon Islands, Tuvalu
  and Vanuatu
• a project by the UNDP Pacific Centre and UNIFEM
  Pacific
  
• presented by christine forster and vedna jivan

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The Convention on the Elimination of All Forms of
Discrimination against Women

• Adopted by the UN in 1979
• International Bill of Rights for Women
• Aims to achieve substantive equality not merely
  formal
  
• In political, educational, employment, health
  care, economic, social, legal, marriage and
  family relations
  
• 185 states parties as at May 2006

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What obligations does ratification place on
states parties?

• De jure (legislative) compliance which requires
  changes to constitutions and domestic laws
  
• De facto compliance which requires the
  implementation of law, policy and programs
  resulting in real changes on the ground.

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Why legislative compliance is important

• Crucial first step to achieving de facto
  compliance and fulfillment of obligation
  
• Provides opportunities for judicial
  interpretation of CEDAW (indirectly)
  
• Provides the opportunity for remedies for victims
  of (sex) discrimination
  
• Process of drafting and enacting legislation
  involves consultation with wide range of parties
  (which makes CEDAW more relevant etc)

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Using Indicators to Measure Legislative Compliance

• Indicators are a tool of measurement that show
  how much or whether progress is being made toward
  a certain goal
  
• 113 Indicators identified for Articles 1-16
• Three measures of compliance used full,
  partial and no
  
• Intent to provide guidance on compliance rather
  than a yes/no assessment
  

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Process of identifying legislative indicators

• Analysis of text of CEDAW
• Extensive reference to CEDAW Committees General
  Recommendations, Concluding Comments and
  country/shadow reports
  
• Utilised previous work on indicators (American
  Bar Association, CEELI and the Centre for Womens
  Research, Sri Lanka)
  
• Extensive use of feminist literature to identify
  best practice models
  
• Consultation with non government organisations in
  the region
  
• UN CEDAW Ctee working towards use of
  indicators
  

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Equality and non-discrimination (Articles 1 and 2)

• Indicator 1.2 Is there a constitutional
  guarantee of substantive equality between men and
  women?
  
• Justification Article 2(a) of CEDAW is specific
  about the need to achieve substantive equality
  rather than merely formal equality
  
• Results None of the 9 countries achieved full
  compliance but most (not all) achieved partial
  compliance with varying guarantees of formal
  equality

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Equality and non-discrimination (Articles 1 and 2)

• Indicators 1.3 - 1.7 Does the constitution
  contain an anti-discrimination clause on the
  grounds of gender, marital status, sexual
  orientation, HIV status, disability?
• Justification Articles 1 and 2, GR 15, 18, 21
• Results Three countries had no
  anti-discrimination clauses at all, six countries
  protect sex/gender only. Fiji alone extends
  protection to sexual orientation, disability etc

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Equality and non-discrimination (Articles 1 and
2)

• Other Indicators
• Definition of discrimination should embody the
  meaning of discrimination in Article 1 and
  include indirect as well as direct
  discrimination
• Law should apply to public authorities and
  institutions as in Article 2(d) and to any
  person, organisation as in Article 2(e).
  
• Adequate sanctions/penalties should be provided
  as required by Article 2(b).
  
• Action required Amendment of constitution or
  enactment of gender equality law

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Criminal Code Sexual Assault Provisions (Article
2)

• Indicators 1.16 1.26 Legislation should
  include
  
• Range of offences covering different ways women
  are violated eg. not limited to penile
  penetration, include violation of trust etc
  
• Serious penalties
• Consent should not available as a defence for
  assaults on girls under 18
  
• Consent comprehensively defined to include
  threat, coercion etc
  
• No defence of honest and reasonable belief victim
  of legal age
  
• No exemption for marital rape
• Removal of incest as an offence for girls and
  women
  
• Mandatory prosecution and minimum sentencing
• Prohibition on requirement for corroboration,
  prior sexual conduct, proof of resistance

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Criminal Code Sexual Assault Provisions (Article
2)

• Justification GR 19 recommends appropriate
  model. Australian and Canadian examples
  considered as best practice models that could
  be adapted
• Results PNG and Marshall Islands have adequate
  sexual assault laws. All other countries are
  non-compliant on most indicators. Incest (in
  non-compliance with CEDAW) is an offence for
  girls and women over 15 in 8 of the 9 countries
• Action required Amendment to Criminal Codes

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Other Criminal Code Issues that can be considered

• Domestic Violence (Article 2) Legislation should
  include restraining orders, specific offences
  etc
  
• Sex Work (Article 6) Legislation should
• Decriminalise soliciting
• Decriminalise brothels
• Provide full work and safety protection for sex
  workers
  
• Criminalise exploitation of girls and women
  (under 18 and non-consensual) with serious
  penalties
  
• Criminalise trafficking of women and girls

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Employment (Article 11)

• Indicator 11.1 Are there anti-discrimination
  provisions in employment legislation on the
  grounds of sex, marital status, disability,
  pregnancy, sexual orientation and HIV status?
• Justification Articles 1 and 2, GR 15, 18, 21
• Results No such law in any countrys employment
  code but 2 countries have laws in their Public
  Service Acts

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Employment (Article 11)

• Indicator 11.9 Are there restrictions on womens
  choice of employment?
  
• Justification Article 11(1)(c) specifically
  requires countries to ensure women have right to
  free choice of profession/employment.
  
• Results Six countries ban women from night work
  and in 2 countries, women are prevented from
  undertaking manual work.

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Employment (Article 11)

• Indicator 11.11 Does the legislation provide
  paid maternity leave of not less than 14 weeks?
  
• Justification Article 11(2)(b) requires paid
  leave and ILO Convention requires a minimum of 14
  weeks
  
• Results None of the 9 countries are fully
  compliant. Maternity leave provisions range from
  12 weeks unpaid (PNG), 84 days at 5 per day
  (Fiji) to none in Samoa, Marshall Islands and
  Federated States of Micronesia
• Public service sector of most countries provides
  more generous provisions than private sector
  

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Employment (Article 11)

• Indicator 11.4 Do the employment laws provide
  sexual harassment protection to workers from
  employers and co-workers?
  
• Justification Article 11 provides right to
  protection of health and safety in working
  conditions, GR 12 and 19 define sexual harassment
  as a form of discrimination
• Results Review revealed none of the 9 countries
  have sexual harassment protection in their
  employment codes
  
• Limited protection is provided in
• The Criminal Code of the Solomon Islands
• Human rights legislation in Fiji
• Public sector legislation in PNG

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Employment (Article 11)

• Other indicators Employment legislation should
  provide
  
• State or employer funded child care
• Reasonable breaks for nursing young children
• Equal pay and equal opportunity
• Equal conditions of work covering all workers
  (including casual, domestic workers etc)
  
• Action required Amendment of employment codes

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Family Law (Article 16) Marriage

• Indicators 16.1 16.8 Does the legislation
  provide
  
• Entry into marriage with full and free consent
• Equal marriageable age of 18 or above
• Registration of marriage in an official registry
• Prohibition of child marriage
• Prohibition of bigamy
• Consent of both parents required in the marriage
  of minors
  

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Family Law (Article 16) Marriage

• Results
• Only Kiribati provides equal marriageable age of
  18
  
• All require registration of marriages although
  there are exceptions for customary marriage in
  some countries
  
• Only 3 countries require consent in marriage of
  minors from both parents
  
• Bigamy prohibited in most countries but bigamous
  customary marriages permitted in some countries
  
• Action required Amendment of Marriage Act or
  equivalent

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Family Law (Article 16) Separation and Divorce

• Indicators Does the legislation provide
• Maintenance for separated and divorced spouse
  based on commitments, earning capacity, assets
  
• No-fault divorce
• Custody and access to children based on the best
  interests of the child
  
• Equal division of property including recognition
  of non-financial contributions
  
• Recognition of de facto relationships including
  same-sex relationships
  

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Family Law (Article 16) Separation and Divorce

• Results
• No-fault divorces permitted in only 2 countries
• Maintenance determinations are based on just or
  reasonable or best interests of all
  
• Best interests of the child standard has been
  adopted by 4 countries, although in 2 of these
  countries not applicable if mother unmarried
  
• Provision for property division after separation
  or divorce available in 7 countries based on
  just or reasonable or best interests of all.
  Fiji alone meets required CEDAW criteria
• Action required Amendment of existing
  legislation or enactment of new Family Code as in
  Fiji (and Vanuatu although not yet enacted).
  

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Inheritance (Article 16)

• Indicator 16.25 Does the legislation provide for
  equal rules of inheritance?
  
• Justification Article 16.1(h) and GR 21
• Results Five countries have legislation that
  gives equal inheritance rights to men and women,
  two have no legislation and two contain
  discriminatory provisions. All nine countries
  give constitutional status to custom which may
  discriminate against women in inheritance.

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The full report can be accessed at

• http//regionalcentrepacific.undp.org.fj/Files/CED
  AW_web.pdf

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• Questions about the indicators or the reviews?

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• Where to from here?

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equality and non-discrimination, sexual assault,
domestic violence, sex work, employment, family
law (marriage, separation, divorce) and
inheritance

• Groupwork
• Which of the above areas should be prioritised
  for law reform in your country?
  
• Which of the above are the easiest to achieve?
  Why?
  
• What support or assistance would you need to
  overcome any barriers to law reform in the above
  areas?

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Countries interested in law reform in area of
equality and non-discrimination (Articles 1 and 2)
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Countries interested in law reform in the area of
sexual assault (Article 2)
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Countries interested in law reform in the area of
domestic violence (Article 2)
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Countries interested in law reform in the area of
sex work (Article 6)
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Countries interested in law reform in the area of
employment (Article 11)
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Countries interested in law reform in the area of
family law (marriage, relationship separation
and divorce) (Article 16)
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Countries interested in law reform in the area of
inheritance (Article 16)
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Recommendations