Womens Rights Protected by the International Covenant

The concept of women’s rights occupies an important position in the international human rights law. It is widely understood that all people (irrespective of their gender) are born equal, that their Creator invests in them certain inherent, indivisible, inalienable, non-negotiable and non-derogable natural and fundamental rights. But a comparative study of various civilizations of the world suggests that this truth was not universally accepted, that women were discriminated against. In India,[1] China,[2] Greece,[3] Rome,[4] and Scandinavia,[5] women had limited rights and sometimes no rights at all. Women in these ‘highly civilized’ lands were treated as slaves, subjected to and depended on men, enjoyed little freedom be it in matrimonial, social, or political matters and possessed nominal proprietary rights.

It is interesting to note that till the late nineteenth Century there was a practice under the English Common Law that: ‘..all real property which a wife held at the time of marriage became a possession of her husband. He was entitled to the rent from the land and to any profit which might be made from operating the estate during the joint life of the spouses. With the passage of time, the English courts devised means to forbid a husband’s transferring real property without the consent of his wife, but he still retained the right to manage it and to receive the money which it produced. As to a wife’s personal property, the husband’s power was complete. He had the right to spend it as he saw fit.[6]

This deplorable state of unchecked discriminatory treatment of women continued till 1945, when the United Nations Organization was established by the common effort of several States who committed themselves to the promotion and protection of human rights and fundamental freedoms for all. Their determination found expression in the Preamble to the UN Charter (1945) as follows: ‘to reaffirm faith in fundamental human rights, in the dignity and worth of human person, in the equal rights of men and [w]omen and of nations large and small.’ Shortly afterwards in 1948 the UN adopted the Universal Declaration of Human Rights, which entitles to all in Art.2 the rights and freedoms within its scope ‘without distinction of any kind, such as race, colour, [s]ex, language, religion, political and other opinion, national or social origin, property, birth or other status.’ These two monumental documents laid the foundation for a series of successive treaties on human rights including the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) and the International Covenant on Civil and Political Rights (1966), the subject of this essay.

Women’s rights under the ICCPR and ECHR:

Mindful of the unfair treatment of women through the ages and the atrocities perpetrated during the two world wars and their aftermath the United Nations Organization at its formation, in its Charter (1945), its Declaration of Human Rights (1948) and in most of the treaties concluded under its aegis prudently devised and employed a universally acceptable all inclusive and gender neutral language.

The United Nation’s noble intent of proposing and universally promoting and guaranteeing equal treatment to all genders, men and women is visible in its Charter, which begins with the words ‘We the People’, is sufficient proof of its determination in creating a world free from discrimination. Similarly, the same determination is also evident in the preamble and provisions of the U.N. Declaration of Human Rights and in the European Convention for the Protection of Human Rights and Fundamental Freedom (1950) [hereinafter referred to as ECHR] and the International Covenant on Civil and Political Rights (1966).

In the aforesaid documents/instruments one can witness the all-gender encompassing language such as ‘all human beings’, ‘everyone’, ‘no one’, ‘every human being’, ‘every citizen’ that further substantiates the U.N.’s aims of promoting gender equity and equality.

Thus, the rights and duties promoted in the U.N. Charter and the Declaration, especially those protected under the ECHR and the ICCPR are equally applicable to men and women, as can be seen below.

Both the instruments guarantee to all men and women:

Right to life;

Right to freedom from torture, inhuman and degrading treatment or punishment;

Right against slavery or servitude;

Right to Liberty and security of person, and right to compensation for unlawful arrest or detention;

Right to a fair trial;

Right not to be punished without law;

Right of appeal in criminal matters and right not to be punished twice for the same offence;

Right to prohibition on imprisonment for non performance of a contract;

Right to respect for family and private life (privacy);

Right to freedom from thought, conscience and religion, subject to limitations prescribed by law;

Right to freedom of expression, subject to conditions and restrictions prescribed by law;

Right to freedom of assembly and association, formation and membership of trade unions, subject to legal restrictions;

Right to equality between spouses;

Right of men and women of a marriageable age to marry and found family;

Right to equality before the law and against discrimination on grounds such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status;

Right and opportunity to conduct public affairs including adult franchise and right to be elected in general periodic elections;

Right to property (only provided by the ECHR in its first protocol, 1952);

Right to education (only provided by the ECHR in its first protocol, 1952);

Right to freedom of movement and residence;

Right of those belonging to ethnic, religious, or linguistic minorities, not to be denied the right in community with others of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language (Art.27 ICCPR);

Duty not to abuse the rights and freedoms guaranteed by these instruments, or indulge in any propaganda of war, or any anti-national, racial or religious hatred.

The creation of the rights enlisted above has been on the basis of the principle of equality. Equality between men and women whether it is in the realm of family, society, religion, education, public affairs, or any other sphere of human activity, has to be ensured for a society to be free and fair. Unless equality is achieved the idea of rule of law will be far-fetched.

Conventional mechanisms for protection of human/women’s rights under the ICCPR and ECHR:

Both the ICCPR and the ECHR are significant early U.N. instruments on equal rights for men and women. The instruments apart from requiring the State parties to domestically enforce/secure the rights and freedoms guaranteed therein, provide for, as a secondary measure, a system of State reports, communications and complaints to the Human Rights Committee (under ICCPR), to the Human Rights Commission and the Court of Human Rights (under ECHR). The communication or complaints for contraventions of respective conventional rights can be individual, State, or inter-State and should be made only after exhaustion of domestic remedies. Such communications/complaints to be admissible have to be from States that have expressly recognized the competence of the respective bodies in such matters.

Adjudication on protection of women’s rights under the ECHR and the ICCPR:

Let us analyze by reference to the case law the extent to which women’s rights have been recognized and protected by domestic and international forums.

In V.S.M.Broeks v.Netherlands,[7] Broeks, a nurse drew the Human Rights Committee’s attention to the Dutch social security laws being violative of Art.26 of the ICCPR. She was dismissed from the services due to her illness. She was not paid unemployment benefits. According to the Dutch social security law, a woman employee would get unemployment benefits, if she could prove that she was the ‘only breadwinner’ in the family. This condition would not apply to men. She applied to the committee pointing out the discrimination between men and women in the country’s social security laws.

The Human Rights committee upheld her contention, and instructed the Netherland’s Government to remove the relevant discriminatory provisions.

In Lovelace v. Canada,[8] in 1977, Sandra Lovelace submitted a communication to the U.N. Human Rights Committee contesting the application to her of the Canadian Supreme Court’s decision regarding Lavell,[9] and challenging her loss of Indian status following her marriage to a Canadian.

Case Summary: Sandra Lovelace was an Indian citizen. She married a Canadian and decided to settle down in Canada. On marriage she relinquished her Indian citizenship and took Canadian citizenship. After some years, disputes arose between her and her husband that resulted in their divorce. According to the Indian law, once she relinquished her citizenship, she may or may regain it, that being dependant on the discretion of the Indian Government. She was residing in Tobigue. She was not allowed to return to India. The Canadian Government asked her to leave the country as she was a divorcee. She submitted an application to the Human Rights Committee stating that the decision of the Canadian Government infringed her right under Art.27 of the ICCPR.

The Human Rights Committee gave a decision in her favour, and asked the Canadian Government to amend its laws.

In Shirin Aumeeruddy-Cziffra v. Mauritius,[10] the Human Rights Committee considered a communication wherein a Mauritian woman alleged that a certain Mauritian immigration law discriminated against women in violation of Articles 2(1) and 3 of the ICCPR.

Brief facts: The Mauritius Government enacted the Deportation (Amendment) Act 1977. According to this enactment, foreign men married to Mauritian women had to apply for a residence permit, which could be refused or withdrawn at any time, by the executive. If the permit was revoked the foreign men had to be deported from Mauritius. However, if Mauritian men married foreign women, the foreign women automatically became entitled to residence. The applicant challenged this rule contending that the said condition incorporated in the 1977 Act was against the Articles 2, 3, 4, 17, 23, 25, 26 of the ICCPR.

The Human Rights Committee accepted the applicant’s argument and held that Mauritius had indeed violated the covenant without adequate justification and instructed the Government to amend the 1977 Act in consonance with the ICCPR.

In a famous decision of the U.S. Supreme Court in Jane roe v. Henry Wade,[11] delivered in 1973, the Right to Personal Liberty embracing, as it does, the Right to Privacy, has been held to be ‘broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.’

India being a U.N. member and signatory to the Declaration of Human Rights and a party to the ICCPR incorporated most of the rights contained in the above in Part III of its Constitution as un-alterable ‘Fundamental Rights’. The Indian Apex Court has responded to matters relating to gender justice in a favourable manner. Some of the cases significantly advance the cause and dignity of woman.

In Nilabati Bahera @ Lalitha Bahera v. State of Orrissa,[12] The Indian Supreme Court, in recognition of right guaranteed in Art.14 of the ICCPR as also reflected in Art.14 (Right to equality and equal protection of the laws) and Art.21 (Right to life and personal liberty) of the Indian Constitution, awarded compensation of INR.1,50,000 to the petitioner for the unnatural death of her 22 years old young son in police custody.

In Mary Rose V. State of Kerala,[13] the Supreme Court scrutinized the constitutional validity of the inequality provisions of the Christian Succession Act,1916. The petitioner, a Keralite Christian contended that the act infringed the right to equality by providing a lower share for women. The Court avoiding the issue of constitutionality, held that the Indian Succession Act of 1925, granting equal inheritance rights to men and women, governed Christians in the State.

The Apex Court has on many other occasions safeguarded women’s rights such as in the Air Hostesses’ case (1981),[14] where pregnancy as a disqualification to continue in public employment was declared ultra vires Articles 14 and 16(1) of the Constitution; Gurmit Singh’s case (1996),[15] rape was held to be violative of the right to privacy; Vishaka v. State of Rajasthan,[16] where adequate safeguards to working women against sexual harassment were provided; State of A.P. v. P.V. Vijaykumar,[17] The Court laid down that the State has the power to give priority to women over men Government services where they were equally qualified.

There have been a series of international cases with regard to restrictions on wearing of the Islamic headscarves by women at Universities. It is to be noted that following cases involved women and not school girls and therefore emphasis is to be laid on women’s right to make an independent choice. However, most of the judgements regarded restrictions on the headscarves at Universities as non-violations of the freedom to manifest one’s religion. The judgements were highly contextualized, depending on the political motivation behind the proscription of headscarves.

In Senay Karaduman v. Turkey,[18] the European Commission of Human Rights maintained the decisions of the Turkish courts prohibiting the wearing of headscarves on University campuses.

In the case of L. Sahin v. Turkey,[19] the European Court of Human Rights held that ban on religious symbols in Universities was based on the principle of secularism. In circumstances