Dr. Ainur Sabitova
Head of
International law Department
Kazakh State
Pedagogical University named by after Abay
e-mail:
ayka.kyan@mail.ru
Women and international law
Preface. “All people are born
free and equal in their dignity and rights.
They have sense and conscience and they must behave in respect of each
other in the spirit of brotherhood”– says the first article of the Universal
Declaration of Human Rights. The human rights from positions of international
law – these are essential rights for characteristic of person’s legal status in
every modern society.
Recognizing
the impact of war on women and the importance of their involvement in the peace
process, in October 2000, the Security Council unanimously adopted a
groundbreaking resolution on Women, Peace and Security. Resolution 1325 urged Member States to
increase women’s representation at all decision-making levels for the
prevention, management, and resolution of conflict. It urged the Secretary-General to appoint more women as his
special representatives and envoys, and to expand women’s role and contribution
in UN field-based operations. [1]
International law and women’s rights. Women’s rights around the
world is an important indicator to understand global well-being. A major global
women’s rights treaty was ratified by the majority of the world’s nations a few
decades ago. Despite many successes in empowering women, numerous issues still
exist in all areas of life, ranging from the cultural, political to the
economic. Democracy is a valued principle, so much so that some people have
sacrificed their lives to fight for it. While no system is perfect, it seems
that democracy is once again under assault. What are the challenges posed in a
democratic system and are established safeguards helping to strengthen
democracy or are their forces successfully weakening it?
It is
often argued—and accepted—that women, being the “gentler sex”, and typically
being the main care givers in society, are less aggressive than men. Feminists
often argue that women, if given appropriate and full rights, could
counter-balance a male-dominated world which is characterized by aggression in
attitudes, thoughts, society and, ultimately, war.
The
adoption of Security Council resolution 1325 on women, peace and security (SCR1325)
on 31 October 2000 was a landmark in promoting greater attention to gender
perspectives in the peace and security work of the United Nations. To follow-up
on the implementation of the resolution, the Inter-Agency Network on Women and
Gender Equality (IANWGE) established an Inter-Agency Task Force on Women, Peace
and Security in February 2001. Initially, the Task Force focused on the
preparations for the Secretary-General’s 2002 study on Women, Peace and
Security and the related report to the Security Council.
At the 1985 Nairobi World Conference,
participants considered women's participation in the efforts for peace in
decision-making positions, and in education for peace as vital to peace
building. Delegates discussed strategies for women's participation in
safeguarding world peace, averting nuclear catastrophe, halting the arms race,
and in complete disarmament. For the first time, the various forms of violence
against women in everyday life and in all societies were highlighted as major
obstacles to the achievement of peace.
Professor
of anthropology, Richard Robbins notes: “At the same time that women produce 75
to 90 percent of food crops in the world, they are responsible for the running
of households. According to the United Nations, in no country in the world do
men come anywhere close to women in the amount of time spent in housework.
Furthermore, despite the efforts of feminist movements, women in the core
[wealthiest, Western countries] still suffer disproportionately, leading to
what sociologist refer to as the “feminization of poverty,” where two out of
every three poor adults are women. The informal slogan of the Decade of Women
became “Women do two-thirds of the world’s work, receive 10 percent of the
world’s income and own 1 percent of the means of production.” [2].
In
2005, the Commission on the Status of Women conducted a ten-year review and
appraisal of the Beijing Platform and issued a declaration reaffirming the
Beijing Declaration and Platform for Action and the outcome document. In
addition to its role in preparing the World Conferences on Women and drafting
CEDAW, the Commission on the Status of Women adopted agreed conclusions on
women and armed conflict in 1998, which addressed gender-sensitive justice; the
specific needs of women affected by armed conflict; the need to increase
women's participation in all stages of peace processes, including conflict
prevention, post-conflict resolution and reconstruction; and disarmament
issues.
Finally,
the allocation of necessary human, financial and material resources was seen as
critical for specific and targeted activities to ensure gender equality at the
local, national, regional and international levels, as well as for enhanced and
increased international cooperation. In March 2000, the Security Council issued
a Presidential Statement on International Women's Day in March 2000. It
recognized the link between peace and gender equality, and the fact that
women's full participation in peace operations was essential to sustainable
peace. It was an important precursor to resolution 1325.
Promotion of women’s human rights and gender
equality in Kazakhstan. The First mentioning of the union of tribes populating the territory of Kazakhstan appeared` in ancient manuscripts
dated in the middle of the first millennium BC. The largest of the tribes was collectively called
Saki. The prevailing of
economy time semi-nomadic and nomadic
cattle breeding. In the early medieval period, in the VI-VII centuries AD,
the Turkic Kaganate played an
important role in the process of
ethno-genesis. The formation of the Turkic ethnos per see took place in the III-IV cc AD in the areas of eastern
Turkestan and Altay. The period of XIII to XVcc is connected with
history of the Golden Horde, created by
Gehngiz Khan. In the XIX-XY cc the Kazakh language was separated
from the Kypchak group of Turkic languages. In 1991 Kazakhstan declared its independence. Kazakhstan maintains a
presidential form of governance. In
accordance with Constitution of Republic of Kazakhstan, all citizens of our
country are given equal rights regardless of gender and age. Kazakhstan has joined over 20 international human rights agreements and conventions, including the UN Convention on
Political Rights of Women and on the
Nationality of the Married Women. Ratification of the UN Convention on
Elimination of All forms of
Discrimination Against Women in 1998 highlighted once more the commitment of
our state to further
democratization of the society,
implementation of the Beijing Platform for Action, adopted by the International
Women’s Forum in 1995.
Under
Decree N 4176 of the President of the Republic of Kazakhstan dated December 22,
1998 for purposes of protection family interests, provision of the necessary conditions
for women’s participation in political, social, economic and cultural life of
the country in accordance with Subpoint 20 of Article 44 of the Constitution of
the Republic of Kazakhstan, there was established the National Commission for
Family and Women under the President of the Republic of Kazakhstan. The National Commission for Family and Women
under the President of the Republic of Kazakhstan (further – Commission) is a
consultative body under the Head of the state.
The Commission consists of 28 members. They are representatives of
different spheres of our society, heads of central bodies and representatives
of the regions.
Kazakhstan
is strongly committed to the further advancement and empowerment of women and
gender equality, particularly through implementing the National Law on State
Guarantees of Equal Rights and Equal Opportunities for Women and Men, and the
Law on Prevention of Domestic Violence. Both these legislations aim at
incorporating international standards into national legislation and enacting
legal previsions that will strongly protect women’s wellbeing and their
inalienable rights through introducing strict measures for violators of
domestic violence.
In
Kazakhstan also undertakes measures to provide allowances for women who loose
or give up their jobs due to pregnancy or child birth, and for economically
vulnerable families. The total budget for family support programmes over the
last 10 years has reached some 3 billion US dollars. The role of women in
decision making is steadily increasing and becoming more significant. The
current proportion of women in the Parliament has now risen to 14 per cent and
on the ministerial level to 15 per cent. Over 58 per cent of the civil service
positions are held by women. Kazakhstan’s women are more than equally
represented in the business sphere: the proportion of women is now 52 per cent
and 66 per cent of these women have their own small business.
International protection women’s rights and
violence against women, implementation of international legal norms on
protection of women's rights in the national legislation of the Republic of
Kazakhstan (some aspects). Many women face multiple forms of discrimination and
increased risk of violence. Violence against women knows no boundaries. Women
are traded across the world as cheap labour, catalogue brides and forced
prostitutes. More than two million girls aged between five and 15 are sold as
prostitutes every year.
The
bodies of women and girls are being mutilated and sold because of new reproduction
technologies. Prenatal determination of a baby's sex through ultrasound or
Amniocenteses has led to a situation in which female foetuses are aborted one
after the other in countries such as the People’s Republic of China and India
in order to secure male offspring. Based on the birth statistics and the
numerical relationship between men and women there should be 100 million more
women alive on the earth today. In addition to this, girls are systematically
neglected. They are breast fed for a shorter period, less likely to be
inoculated, receive less to eat and have to work much harder. 1.5 million
children die every year because they are girls. Girls and women are abused and raped on a daily basis. 75 percent
of rapes are carried out by offenders that know their victims socially. Only
between 10 and 30 percent of these crimes are reported to the police. 40,000
women are forced to flee their violent men to a refuge for battered women every
year in Germany. The persecution of women because of their gender is not
recognized for asylum purposes. Women and girls are refused the right of
self-determination over their own bodies.[3]
In
1998, the International Criminal Tribunal for Rwanda established by the United
Nations made landmark decisions that rape is a crime of genocide under
international law. The trial of Jean-Paul Akayesu, the mayor of Taba Commune in
Rwanda, established precedents that rape is an element of the crime of
genocide. The Akayesu judgement includes the first interpretation and
application by an international court of the 1948 Convention on the Prevention
and Punishment of the Crime of Genocide. [4]. In many countries, women are
refused the right to contraception. The genitals of 150 million women and girls
have been mutilated. Each year, this number increases by two million. Women and
girls are refused the right to take part in public life by law, be it legal or
religious. In career terms, women and girls are at a disadvantage in every
nation on earth. In Germany, a mere seven percent of women command management
positions in business, the state sector and science, but are employed in 94
percent of all part-time positions.
The
International Criminal Tribunal for the former Yugoslavia found three Bosnian
Serb men guilty of rape of Bosniac (Bosnian Muslim) women and girls (some as
young as 12 and 15 years of age), in Foca, eastern Bosnia and Herzegovina.
Furthermore two of the men were found guilty of the crime against humanity of
sexual enslavement for holding women and girls captive in a number of de facto
detention centres. Many of the women subsequently disappeared [5].
In the
26 September 2011 issue of Newsweek magazine a study was published on the
status of women in countries around the world [6]. The factors taken into account were legal justice, health and
healthcare, education, economic opportunity, and political power. The rankings
were determined by Lauren Streib by uniform criteria and available statistics.
According to the study, the best and worst were [7]:
Top ten
|
Rank |
Country |
Overall |
Justice |
Health |
Education |
Economics |
Politics |
|
1 |
Iceland |
100.0 |
100.0 |
90.5 |
96.7 |
88.0 |
92.8 |
|
2 |
Sweden |
99.2 |
90.8 |
94.8 |
95.5 |
90.3 |
93.1 |
|
3 |
Canada |
96.6 |
100.0 |
92.7 |
92.0 |
91.0 |
66.9 |
|
4 |
Denmark |
95.3 |
86.1 |
94.9 |
97.6 |
88.5 |
78.4 |
|
5 |
Finland |
92.8 |
80.2 |
91.4 |
91.3 |
86.8 |
100.0 |
|
6 |
Switzerland |
91.9 |
87.9 |
94.4 |
97.3 |
82.6 |
74.6 |
|
7 |
Norway |
91.3 |
79.3 |
100.0 |
74.0 |
93.5 |
93.9 |
|
8 |
United States |
89.8 |
82.9 |
92.8 |
97.3 |
83.9 |
68.6 |
|
9 |
Australia |
88.2 |
80.7 |
93.3 |
93.9 |
85.3 |
65.1 |
|
10 |
Netherlands |
87.7 |
74.0 |
95.0 |
99.0 |
83.0 |
68.4 |
As
party to the Convention on the Elimination of all Forms of violence
Against Women Republic of Kazakhstan
takes measures to develop legislation and ensure its effective implementation to eradicate violence against women and
prosecution of persons guilty of it. On
19 February 1999 in order to take
effective measures on prevention and
termination of all forms of violence against women, subdivisions of
administrative police to control violence against women were established within
the system of the Internal Affairs Bodies. The main direction of
their activities include the protection
of the constitutional rights and freedoms and lawful interests of women
against illegal encroachments, provision of legal support to
the population on issues of prevention and suppression of violence, analysis
and summarising of information on
violence against women. The
most vivid manifestations
of violence against women are homicides aggravated by
alcoholism and drug abuse, rape repeated beating, torturing, forcing to
cohabitation, prostitution, etc. The
most widely spread violence
against women is domestic violence,
resulting in physical, psychological, economic and moral harm and
suffering as well as threat
of committing such acts.
The
movement had faced its greatest opposition in the West because of the
prevailing discussion based on a premise that norms varied from culture to
culture. According to this premise, terrible human rights violations such as
genital mutilation were acceptable as culture-specific characteristics. But the
World Conference for Human Rights was successful in beginning a process in
which women’s rights would become accepted as human rights and in which a new
international standard was set. Structural oppression of women in all its forms
was no longer seen as discrimination against women, but as a violation of human
rights. This is a new dimension providing women with a far more effective
instrument for putting pressure on governments in their fight to achieve equal
rights. [8]
The definition of
the term “discrimination against women” as such, does not exist in the
legislation of the Republic of Kazakhstan. Nevertheless, this term is widely
used in legal practice, is used in the Constitution and other legal
acts. Thus, Article 14 of the
Constitution adopted on 30 August 1995
reads: 1. All are equal before law and
court. 2. No one shall be subject to discrimination of any form on the basis of origin, social,
property status, occupation, sex, race, nationality, language, religion,
convictions, place of habitation or other
circumstances.
Article
120 of the Criminal Code, which was in force
until 1 January 1998, stated that impeding women in participating in
state, social, cultural activity or other
actions violating equality of women through the use of force, treat, material or other
dependence was subject to punishment of up to 3 years imprisonment. In the new Criminal Code which came into force on 1
January 1998 there is no separate consideration of the issue of violation of equal rights of women. However, an analogous bode of crime –
violation of equality of citizens (Article 141) – treats as a crime direct or
indirect limitation of human rights and
freedoms, including on motives of sex and
envisions confinement of up
to three month or penalty equivalent to
one thousand of average monthly calculated indicators. The same crime committed
by a person while performing official duties, is punished by confinement for a
term of up to six months or imprisonment for a term of up to two years, or penalty
equivalent to two thousand of average
monthly calculated indicators.
The
Criminal Code effective before 1
January 1998 contained only one
article referred to preclusion of exploitation of women’s
prostitution – “Keeping of Dens and Pimping” (Article 215-1). The new Criminal Code enacted on 1 January 1998 considerably mitigated the maximum
punishment for this crime from 5
to 3 years (of imprisonment)
(without aggravating circumstances) , simultaneously
introduced several articles
that were completely new for
Kazakhstan legislation: recruiting people for sexual or other exploitation (article 128) with the
maximum punishment up to 8 years of imprisonment involving a minor in prostitution (article
132) – up to three years of
imprisonment; traffic in minors (article
133) connected with their import
to Kazakhstan or export from Kazakhstan - up to ten years of
imprisonment; involving in prostitution
(article 270) – up to three years of
imprisonment.
In
accordance with Kazakhstan’s legislation, legal protection is provided on an
equal basis, irrespective of sex.
Article 13 of the August 1995
Constitution recognises everyone’s right to be legal subjects, to have the right for juridical defence of their
rights and freedoms and obtaining qualified legal assistance. Where it is envisioned by law legal
assistance is provided free of charge.
Article 14 of the Constitution states: “All are equal before law and
court”. On 29 June 1998 Kazakhstan
joined the “Convention against Tortures
and Other Cruel, Brutal or Humiliating Human dignity Ways of Treatment and
Punishment”. By pledging to observe the
norms of this Convention, it confirmed its commitment to human rights
protection. The Law “On marriage
and Family” which came into force on 17
December 1998 and which acts as a substitute for the earlier existing Code of Marriage and Family of 1969.
Article 2 of this Law fixes the principle of voluntary marriage of a man
and a woman, equality of spouses, and
resolving family conflicts through reconciliation. It prohibits any kind of
limitation of the rights of citizens
during their marriage of family
life on the grounds of social status, race, ethnicity, language or
religious creed.
Inference. It is necessary to make propositions
[9]:
·
In order to take into account the interests and needs of women who
represent an essential part of modern society, it is suggested that governments
and relevant international organizations such as UN elaborate and adopt the
international standard of women’s rights. It must be based on universal concept
of human rights allowing to unite states in protection of women’s rights.
·
The idea of international
protection of women’s rights, and the idea of elimination of discrimination
against women, must, before all, be based on gender conscience of people that
is one of many forms of public conscience.
·
In order to ensure effective protection of women’s rights, it is
expedient to legally fix the notion of women’s ‘vulnerability’ that means that
it is necessary to arrange special international protection of the women whose
lives are threatened by objective external factors, and the notion of aggregate
vulnerability of women that arises when a woman is simultaneously exposed to a
few factors causing vulnerability, i.e. additional protection of women. At the
same time, it is necessary to pay special attention to the following groups of
vulnerable women: the women who were exposed to globalization processes; the
women who live in environmentally unfavorable areas; young girls.
·
In order to ensure effective implementation of gender policy, and based
on international law norms of protection of women’s rights, and subject to
mentality and national ethnic traditions of the peoples of Kazakhstan, it is
expedient to elaborate a project of national action plan of protection of
women’s rights for the future that must be approved with the Decree of the
President of the Republic of Kazakhstan. Subject to the condition of protection
of women’s rights in the Republic of Kazakhstan, it is expedient to introduce
the position of Ombudsman for Women’s Rights whose status must be determined
with a law of the Republic of Kazakhstan.
·
In order to implement international social and economic rights of women,
every state must take a number of effective measures to liquidate women’s
poverty based on state social policy on women’s affairs; to form a system of
national statistics on women’s economic status; to provide social assistance to
women; to stimulate economic interestedness of states and employers in making
healthier women’s labor conditions, before all, women of childbearing age,
using legal levers; to adopt Law ‘About protection of health of pregnant
women’.
·
It is necessary to introduce
provision in international law setting forth social and legal liability of
employers and administrative officials who infringe upon women’s reproductive
rights; to create necessary conditions to ensure that women have vocational
training for obtaining proper labor skills.
·
Based on analysis and generalization of the materials about the status
of implementation of international law provisions on protection of women’s
civil and political rights in modern Kazakhstan society, we have revealed
certain defects in both legal basis and information system on actual status of
women in the society and protection of their civil and political rights.
Therefore, it is proposed: to complete the existing laws with the provisions
imposing liability for violation of women’s rights, for violation of equal
participation of women on a level with men in public administration bodies; and
to introduce an internal Kazakhstan mechanism to control how international law
provisions on protection of women’s rights are implemented by all state bodies
and officials.
·
The member states of the Convention on elimination of discrimination
against women undertook to include the principle of equality of man and women
in their national constitutions or any other relevant legislation, and
implement this principle by their laws and other relevant means in practice.
Therefore, it is seems possible to add the following provision to sub-clause 3
of Article 12 of the current Constitution of the Republic of Kazakhstan: ‘In
the Republic of Kazakhstan, men and women have equal rights’.
·
Violence against women is of no
racial, class, age or ethnic nature. Violation of human rights as an issue of
protection of women’s rights includes slavery (forced prostitution), sexual
terrorism (rape), restriction of freedom (house arrest), humiliation (permanent
beating) that are global acts of discrimination of women. The gender
discrimination often leads to murder because the fact of being female is a
threat to life. Although many states do not provide the status of refugee to
women who were exposed to sexual victimization and raped, we believe that the
victimization by gender as a kind of humanitarian repression may be a reason
for provision of the status of refugee.
·
Based on complex analysis of international law related to protection of
women’s rights and current practical situation on guarantees of protection of
women’s rights, one can conclude that the Committee on the Elimination of
Discrimination Against Women (CEDAW) may not consider individual cases, and it
is the competence of the Human Rights Committee. The only procedure of control
how the women’s Convention is observed is the controlling and reporting
procedure. The member states of the Convention must observe its provisions, and
at the same time, they are not obligated to observe the provisions reserved by
the states, and the Convention has a great number of such reservations. Thus,
CEDAW has no immediate means of protection of women’s rights. In modern
international law related to protection of women’s rights the status and role
of the Committee on the Elimination of Discrimination Against Women formed by
UN to eliminate any discrimination against women must be understood and
analyzed anew to make the resolutions of CEDAW imperative.
Sources
1. http://www.un.org/en/globalissues/women/peace.shtml
2. Richard H. Robbins, Global Problems and the
Culture of Capitalism, (Allyn and Bacon, 1999), p. 354
4. Fourth Annual
Report of the International Criminal Tribunal for Rwanda to the General
Assembly (September, 1999)
5. Bosnia and
Herzegovina : Foca verdict – rape and sexual enslavement are crimes against
humanity. 22 February 2001.
6. Streib, Lauren (26
September 2011), "The Best and World Places to be a Woman", Newsweek:
30-33.
7. Streib, Lauren.
"The Best and Worst Places for Women". Retrieved 20 February 2012.]
8. Christa Stolle.
UNESCO School’s Project, Issue 3/2002: "Frauen und Mädchen der
Welt" hrsg. v. Deutsche UNESCO-Kommission e.V., Bonn.
9.
Ainur Sabitova.
Ìåæäóíàðîäíî-ïðàâîâûå ïðîáëåìû çàùèòû
ïðàâ æåíùèí: âîïðîñû òåîðèè è ïðàêòèêè. Àâòîðåôåðàò. Àëìàòû, 2010ã. Ñ. – 8-10.