The United Nations declaration guarantees equal rights for women and men. All major international human rights instruments stipulate that discrimination based on sex should be terminated. The Convention on the Elimination of All Forms of Discrimination against Women was adopted by the United Nations General Assembly on 18 December 1979. There are only eight countries who did not sign the declaration: Czechoslovakia, Poland, Saudi Arabia, Soviet Union, Byelorussian SSR., Ukrainian SSR., South Africa, and Yugoslavia. Almost all countries have ratified the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). The six UN member states that have not ratified or acceded to the convention are Iran, Palau, Somalia, Sudan, Tonga, and the United States. The one UN non-member state that had not acceded to the convention is the Holy See/Vatican City.
Through the United Nations Declaration and the CEDAW Convention, the member states of the United Nations pledged to take action in these areas. The Declaration contains a strong commitment to defend women’s equal rights and to end discrimination, to implement non-discrimination in laws and practice, and to improve basic knowledge of law. Almost 20 years later, these promises have been fulfilled only in part. For example, in countries like Chile, domestic violence needs to be proved with testimony documentation and a legal report from a doctor even though the punishment is not strong. A restraining order can be put in place, but an infraction can go as far as to end the woman’s life. That is why the declaration of the UN and the CEDAW convention is viewed as a soft law that lacks punitive force and leaves compliance up to local laws and their governments.
This means that the protection of women’s rights must be enshrined in national laws and policies firmly rooted in international human rights standards, something that happens partially or without success in many countries that are part of the UN. Equally important is the application, coercibility, and punctuality of laws in aspects such as ease of access to the courts and the expectation of an impartial process. Women should know their rights and be able to claim them. It is necessary to challenge and change social attitudes and stereotypes that undermine gender equality. The only way to achieve success is to raise awareness and pressure those countries in which governments do not show interest.
On the other hand, progress has been too slow, especially for the most marginalized women and girls. In many countries there is still discrimination in the laws. Women do not participate in politics under the same conditions as men. Women face flagrant discrimination in labor markets and in access to economic goods. The many forms of violence directed explicitly towards women and girls deny them their rights and often endanger their lives. In some regions there are still too high levels of maternal mortality. The unpaid care workloads borne by women continues to limit the enjoyment of their rights.
At present there are still significant gaps and violations of rights in all regions of the world. The rights of women and girls are human rights and cover all aspects of life: health, education, political participation, economic well-being, not being subjected to violence, as well as many more. Women and girls have the right to full and equal enjoyment of all their human rights and to live free from all forms of discrimination: this is essential for the achievement of human rights, peace and security, and development.
For years feminists have criticized the inequality of their rights in various ways, such as by protesting in the streets and bringing the struggle to courts. This has reached such a critical point that women’s rights have also been used as an instrument of oppression against them. In connection with the issue, governments and people have questioned the supposedly universal and neutral subject of gender laws for women, leaving women’s rights without protection at all in many aspects of daily life. Many organizations that support women’s rights, such as in Spain from 2006 and in South America from 2015, have wondered if it will be possible to transform society through law and translate it into political and legal demands to improve women’s lives. Although feminist movements in the last decade have become sceptical about being able to make positive change in the category of “women as subjects of law”, without being able to advance in aspects of violence against women, domestic violence, and access to abortion, then actual improvements for women will be difficult. Violence against women is a pandemic affecting all countries, even those that have made laudable progress in other areas of women’s rights.
Despite all the important legal advances during the past century, there is still an enormous gap between the formal recognition of women’s human rights and the possibility of enjoying them in the actual sense. The integration of women in the discourse of human rights on an equal footing with men is an essential advance, but from a juristic and legal point of view, there appears to be a lack of tangible rights. However, even formal recognition of equal rights has proven to be insufficient to guarantee the effective enjoyment of all rights by women. The is because the greatest violations occur in the private sphere, and this has made visible the multiple ways in which interpersonal gender relations can limit the full enjoyment of universal rights by women.
Feminist movements have argued that the supposed universality of humans is based on an idea that denies actual cultural and gender diversity because it actually refers to a “man” with very specific characteristics: white, young, with properties, and European. In the face of serious obstacles to women’s rights, the answer is that we must try to change the UN declaration and the convention of the CEDAW to make them enforceable and coercible for the countries so the UN objectives can be harmonized with the national law of the countries that are part of the UN. In 1792, the English Mary Wollstonecraft wrote The Vindication of Women’s Rights, which extends radical ideas to women, upholding the essential equality between the sexes whose differences are due to an education that prepares women for subjection. She wondered “Who has erected the man as the only judge if the woman shares with him the gift of reason?” The origin of the subordination of women is their assumed physical weakness, which is reinforced by culture and education.
The institutionalization for the equity and equality of women promoted by the First World Conference on Women in 1975 opened possibilities for the incorporation of women’s issues into different public agendas, pushing for the modification of discriminatory laws. Slowly, some countries have created the necessary government structures to protect women. Also, together with the creation of new international governmental organizations, some countries have gradually initiated a reformist process, focusing on legal claims. Meanwhile, political and social feminism continued to develop as a movement and theory. Detailed investigations have focused on processes of globalization, neoliberalism, and emancipatory reforms for women rights in all levels. During the last quarter of the twentieth century, a series of international conventions and pacts are making room for the demands of women and are repeatedly developing the need for greater equality as the Convention established: “… the maximum participation of women, on equal terms with men, in all fields, is essential for the full and complete development of a country, the welfare of the world” (CEDAW 1979).
At present, women continue the struggle to further expand their rights for employment opportunities with equal salary and positions and ending discrimination within the framework of a society that is still patriarchal. Patriarchy is a form of society in which man, the masculine, has supremacy by the simple fact of being male. It relegates the woman, the feminine, to the background. These two roles – the power and domination of man and the service and submission of women – are sustained and perpetuated by society as a whole: the government, justice system, laws and regulations, customs, beliefs, etc. Therefore, this type of society is not only clearly discriminatory against half of its population, but it is also wasting women’s potential contributions to the community, which is much more than caring for the family. Men and women should have equal opportunities without forgetting that we are different.
Patriarchy historically places women under subordination of man and empowers women for political action at the same time changing their situation in front of the system legal and their daily life. Subsequently, the analysis becomes more complex when accounting for the social and cultural constructions of differences between men and women. This concept refers to “the distinction between sexes and, therefore, together we defend ourselves from the order of the corporal and the very diverse socio-cultural systems, collectively constructed from these differences” (Barbieri M. Teresa 1996: 51). When recognizing women as subjects, sexuality and reproduction become their own areas of sexual difference. As Mary Wollstonecraft argued, “The differentiated roles that, due to gender reasons, are imposed in the family and home environment, do not exhaust the condition of being of the woman and should not imply a basic education different for men and women… To render it weak, and what some may call beautiful, the understanding is neglected, and girls forced to sit still, play with dolls and listen to foolish conversations; the effect of habit is insisted upon as an undoubted indication of nature” (Mary Wollstonecraft, 1996 : 220).
“Traditional cultural practices and beliefs reflect the values and beliefs held by members of a community for periods often spanning generations. Some of these are beneficial to all men, while others have become harmful to a specific group, such as women. One of the most important features of both religion and culture are that they are both linked to power and are described and defined by people in power (because of patriarchy, the people in power are often men)” . The relationship between the private place that women occupy and the public, mainly male, demonstrates a whole area of coexistence that was absent from the doctrine and practice of Human Rights. They emphasize the indivisible and interdependent nature of Human Rights, and their absence in the private sphere prevents them from performing in the public, while establishing priorities regarding their importance and protection. A clear example is gender violence within the family, invisible for a long time in the doctrine of Human Rights. Indeed, Human Rights are relevant in all spaces, including within family relationships. Its violation prevents the enjoyment and exercise of other rights, regardless of the place where they are exercised.
Despite the immense power of patriarchy and despite the cowardice or complicity of the greater part of governments, things have improved. This has been aided by both street protests and the daily use of freedom of speech. Spaces are also opened and maintained on the Internet, which has broadened the opportunity to protest and speak out about women rights. The progress is slow, very slow, but do not faint and give up. In the face of these serious obstacles, the answer remains the same: we have to include all of us who fight for a better world and reform this exploitative capitalist society in which we live or survive. You have to organize, fight, and resist. And I believe that in that field of resistance, despite the challenges.
From the discussion above, it has been suggested that the fundamental problem that arises from the women’s rights and international law is not whether we can make legal claims based on a feminist collective subject like that of ‘women’, but: How can we prevent this subject from falling off the radar? How do we integrate the intersectionality of categories of sex, race, gender, or class in specific situations of social vulnerability for all women without creating new problems? On other occasions, solutions may require making legal claims based on these other identity subjects. In these cases, however, it will be necessary to think about the way in which these claims are transferred to the legal level. The objective, in this sense, would be to legislate and modify the processes that produce inequality and discrimination, and this requires the integration of various methodologies and strategies based on a specific subject such as ‘women’, as well as the use of new legal concepts to translate the situation of oppression suffered by women based on other inequalities.
“Convention on the Elimination of All Forms of Discrimination Against Women”. Treaties.un.org. Archived from the original on 23 August 2012. Retrieved 27 September 2011. www.un.org/en/sections/issues-depth/gender-equality/
Mary Wollstonecraft, Vindication of Women’s Rights. Madrid: Cathedra Edition, 1996 (1792)
Convention on the Elimination of All Forms of Discrimination against Women New York, 18 December 1979. www.ohchr.org/EN/ProfessionalInterest/Pages/CEDAW.aspx
Maria Teresa Barbieri. Certainties and misunderstandings about the gender category, in Laura Guzmán and Gilda Pacheco (Compilers) Basic Studies of Human Rights. San José: Inter-American Institute of Human Rights. 1996
Claudia Bratsberg-Olsen is a lawyer and has worked international law, gender law, corporate law, and several other areas. She is from Chile and now lives in Norway.