31 March 1995

Doc. 7271

REPORT on achieving real progress in women's rights as from 1995

(Rapporteur: Ms ERR, Luxembourg, Socialist Group)

Summary

      Human rights of both women and men are universal and indivisible. All states have the duty to ensure their respect and enjoyment, irrespective of socio-cultural and religious traditions or economic and political systems.

       One such fundamental right is the right to equality between women and men, which forms an integral part of the values the Council of Europe stands for. In this context, the concept of parity democracy, which recognises the fact that humanity is composed of women and men with equal dignity and value and means full participation of women on an equal footing with men at all levels and in all aspects of the running of a democratic society, must be supported by the Council of Europe.       

      However, in some countries even de jure the fundamental right to equality between women and men does not exist, and if it does, more often than not it is de facto not implemented.

      To remedy this situation the report proposes, on the national level, to establish appropriate equality machinery in the form of institutions and anti-discriminatory legislation. On the international level, the right to equality should be incorporated into the European Convention on Human Rights as an independent, autonomous and justiciable fundamental human right. Other international instruments, such as the European Social Charter and the United Nations Convention on the Elimination of All Forms of Discrimination against Women, must also be strengthened. Only then will the fundamental rights of women be adequately safeguarded.

I. Draft recommendation

1.       The Assembly considers that human rights of both women and men are universal and indivisible, and that it is the duty of all states to ensure their respect and enjoyment, irrespective of socio-cultural and religious traditions or economic and political systems. In this context the Assembly affirms that the principle of equality between men and women, or parity democracy, is an integral part of the values the Council of Europe stands for.

2.       The concept of parity democracy recognises the need for equality in terms of participation and representation of men and women in all areas of society, based on the principle of partnership and sharing of rights and responsibilities.

3.       The Assembly is convinced that de jure and de facto equality between men and women is crucial for the very functioning of a democratic society. The question of parity democracy is especially important in the new member states, where rapid political and economic reforms have had a negative impact on the situation of women in some cases.

4.       The Assembly is disappointed to have to state that the principle of parity, or even of equality, between men and women is still not included in the constitutions of all Council of Europe member states. What is more, even member states which have enshrined the principle of equality in their constitutions often lack concrete legislation backing up this provision; legislation that is badly needed to make parity democracy truly achievable.

5.       International legal machinery, such as the European Convention on Human Rights, and the United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), also needs to be strengthened in this regard.

6.       Therefore, the Assembly recommends that the Committee of Ministers

      i.       include the principle of equality of rights between men and women in an additional protocol to the European Convention on Human Rights as soon as possible, as recommended in Assembly Recommendation 1229 (1994);

      ii.       adopt specific policies and promote action programmes to engage the governments of member states to address the problems of women both in traditional areas of responsibility and in new ones, in particular concerning violence against women, the increasing number of destitute women which is tending to make poverty a predominantly female phenomenon, and the traffic in women;

      iii.       speedily adopt the draft protocol to the European Social Charter providing for a system of collective complaints;

      iv.       ensure that the principle of equality of rights between men and women be included in the constitutions of member states;

      v.       become active to eliminate all discrepancies that currently exist in the legislation of member states as regards the treatment of women as individuals rather than in the context of their family or in relation to their husbands;

      vi.       encourage member states to create at national level appropriate institutional bodies to ensure the real achievement of equality between men and women, such as equality commissions, offices of the plenipotentiary for women's affairs, offices of equal status, offices of the "ombud type", or ministers for women's rights with responsibility for abolishing direct and indirect discrimination between the sexes and for promoting the access of women to a position of parity;

      vii.       ask member states to adopt specific anti-discriminatory legislation foreseeing appropriate sanctions for cases in which the equality of women and men is not respected, especially in professional life;

      viii.       request that member states incorporate sexual discrimination, as exemplified by the refusal to allow women to teach or to become judges, the obligation to wear the veil or other discriminatory clothing, or forcible marriage, in the criteria of political or religious persecution used to justify the request for asylum on the part of women;

      ix.       invite all member states who have not yet signed and ratified the United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) to do so before the year 2000, and all member states parties to the convention which have made reservations to make their national legislation compatible with the convention and withdraw the reservations as soon as possible;

      x.       ask all member states to support the adoption of the draft additional protocol to the CEDAW Convention, empowering that convention's supervisory body to examine individual and group complaints.

II. Draft order

      The Assembly instructs its Committee on Legal Affairs and Human Rights to monitor the annual report foreseen in the United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), as far as member and applicant states of the Council of Europe are concerned, and to keep it informed of important developments.

III. Explanatory memorandum

by Ms ERR

I. Introduction

1.       In 1975 we celebrated the first International Women's Year. Twenty years later, in September 1995, the United Nations will organise its fourth World Conference on Women in Beijing. On that occasion, the priorities and goals in the field of equality will be determined for the next ten years.

2.       This report is an attempt to take stock of the activities of the Parliamentary Assembly of the Council of Europe in the field of equality and to pinpoint the areas in which it can still improve on its record.

A.       Assessment of the work done in the Council of Europe

3.       The following chapter makes a brief assessment of the work done in the Council of Europe in the field of equality.

i.       Parliamentary Assembly

      —Wo       rk programme4.

4.       Following the creation of the Ad hoc Committee on Equality of the Sexes of the Bureau of the Assembly in June 1993, work in the field of equality has developed and become more structured in the Assembly. Notably, equality questions appear more often on the agendas of different committees and there has been a clear increase in the number of reports in the field of equality in their work programmes.

5.       The Assembly has adopted several recommendations and resolutions that directly concern equality:

      —Re       commendation 1243 (1994) on demographic change and sustainable development;—

      —Re       commendation 1229 (1994) on equality between men and women;—

      —Re       commendation 1146 (1991) on equal opportunities and equal treatment for women and men on the labour market;—

      —Re       commendation 1081 (1988) on problems of nationality in mixed marriages;—

      —Re       solution 1018 (1994) on equality between women and men;—

      —Re       solution 1011 (1993) on situation of women and children in the former Yugoslavia;—

      —Re       solution 855 (1986) on equality between women and men.6.

6.       The Assembly has also rejected texts calling for equality during the recent years. Notably, texts on following topics did not receive the required support in the Assembly:

      —Eq       uality between women and men: the right to free maternity;—

      —Ge       nder equality in education.7.

7.       Various Assembly committees are presently working on the following reports:

      —Eq       uality between women and men/motherhood: free choice;—

      —Sy       stematic gang rape of women and children on the territory of former Yugoslavia;—

      —Eq       uality between women and men in the choice of a child's surname;—

      —Po       rnography;—

      —Tr       eatment of embryos and foetuses and bio-ethics in general;—

      —Tr       affic of women and forced prostitution in the Council of Europe member states;—

      —Si       tuation of migrant women in Europe;—

      —In       ternational Conference on Population and Development (Cairo, 5-13 September 1994);—

      —Re       presentation of women in the Parliamentary Assembly;—

      —Eq       uality of opportunity within the general secretariat of the Council of Europe.—

      —Re       presentation of women 8.

8.       In many Council of Europe member states, women are under-represented in their national parliaments, although hardly any legal barriers exist to prevent women from participating in political life.

9.       Although the representation of women in the Parliamentary Assembly has increased slightly since I presented my report in June 1994 on the equality between men and women, the percentage remains remarkably low. In October 1994, twenty-seven Representatives out of 237 members of the Assembly, and thirty-seven Substitutes out of the equal number of Substitutes, were women.

10.       The situation is especially alarming in the new member states. Although much has been achieved in terms of democracy in these new member states during the last five years, in terms of parity democracy they clearly lag behind.

11.       It is important to note that this trend does not reflect the general tendencies in other member states, nor the demographic situation in the new member states. For example, the parliamentary delegations of Hungary, Romania and Slovenia, and the special guest delegations of Albania, Belarus, Bosnia-Herzegovina, Latvia, the Former Yugoslav Republic of Macedonia and of Ukraine all have no women delegates.

12.       The Committee on Parliamentary and Public Relations, which is presently preparing a report on the representation of women in the Parliamentary Assembly, will examine this question in detail.

ii.       Committee of Ministers

13.       The following list summarises the texts adopted related to women's equality by the Committee of Ministers since the first international Women's Year in 1975:

      —Re       solution (77) 1 on women's employment;—

      —Re       commendation No. R (84) 17 on equality between women and men in the media;—

      —Re       commendation No. R (85) 2 on legal protection against sex discrimination;—

      —Re       commendation No. R (85) 4 on violence in the family;—

      —Re       commendation No. R (89) 3 on the flexibility of retirement age, and—

      —Re       commendation No. R (90) 4 on the elimination of sexism from the language.14

14.        In accordance with Recommendation No. R (90) 4, guidelines for introducing non-sexist language have been set up, and in June 1994, the Secretary General of the Council of Europe sent to the directors of the different departments of the Council of Europe Instruction No. 33 calling for the proper application of these guidelines.

iii.       European Conference "Equality and Democracy: Utopia or Challenge?"

15.       The European Conference "Equality and Democracy: Utopia or Challenge?" took place in Strasbourg from 9 to 11 February 1995. The conference, though not a formal preparatory body, aimed at making a specific Council of Europe contribution to the upcoming United Nations 4th World Conference on Women in Beijing which might serve the cause of this important event.

16.       I would consider the conference a great success, focusing as it did on new dimensions of democracy and citizenship and on full enjoyment of human rights by women. The conclusions by the General Rapporteur Ms Vigdis Finbogadottir, President of Iceland (published as document EG/Dem (95) 18) can only be supported.

II. Parity democracy

A.       Concept of parity democracy

17.       The principle of equality between women and men, or parity democracy, is an integral part of the values that the Council of Europe stands for. The concept of parity democracy recognises the need for equality in terms of the participation and representation of women and men in all areas of society. The basic principle underlying the promotion of equality between women and men is the defence of the dignity and integrity of all human beings, both women and men. For a society to be truly democratic, it must offer equal opportunities for all. For a democracy to be stable and solid, both women and men must participate on equal footing in its functioning. De jure and de facto equality between women and men is crucial for the very functioning of a democratic society.

18.       Some people claim that the problem of equality between men and women, especially the achievement of parity democracy, should be put to one side until allegedly more "urgent" questions have been solved. This point of view is unacceptable, since the achievement of democracy is an absolute priority.

19.       As Ms Finbogadottir pointed out in her conclusions to the European conference, "no problem can be solved in a manner which is satisfactory, just and equitable for society in its entirety, for as long as half of society (that is, women) is to varying degrees excluded from the process".

20.       Another point of view that has to be rejected is that of cultural relativism, which invokes culture, religion and traditions to oppose and obstruct claims by women to the full and equal enjoyment of human rights, the full development of women's potentials and their full and equal participation in society. Rejecting this cultural relativist approach does not mean rejecting the diversity of cultures, but only those aspects of culture which act as impediments to the realisation by women of their talents, which constitute half of the human capital that no civilisation should want to renounce.

21.       A possible antidote to cultural relativism would be the recognition by governments, religious institutions and all sectors of society of legitimate claims by women to play a significant role in the definition and interpretation of religious, cultural and customary norms. Active steps should be taken to encourage women's involvement in these processes. In the meantime, however, it is important that member states incorporate sexual discrimination, as exemplified by the refusal to allow women to enter certain professions, such as becoming a teacher or a judge, the obligation to wear the veil or other discriminatory clothing, or forcible marriage, in the criteria of political or religious persecution used to justify the request for asylum on the part of women.

22.       It is essential to underline once more in this context that the universality and indivisibility of human rights needs to be upheld. Human rights also include women's rights, and questions such as parity democracy are also affected.

23.       Although the question of parity democracy concerns all the Council of Europe member states equally, it is of a particular importance to the new member states which are going through a period of transition. These countries have experienced rapid political and economic reforms. In some cases the reforms have had a negative impact on the situation of women.

24.       Consequently, the Parliamentary Assembly has a great role to play in providing the population in the new member states with information on the situation of women in the other Council of Europe member states, as well as legal provisions in the field of equality. Women in new member states in particular need to know their rights and how to exercise them. The co-operation programme of the Assembly should include equality aspects in the future.

25.       In the same vein the Assembly should take into account the attitude of candidates for the European Court of Human Rights on the equality of the sexes when electing new members of the Court.

26.       The Assembly might also consider setting up a new committee to deal with the achievement of equality between the sexes and parity democracy. This committee might deal with all related issues currently examined by the Committee on Legal Affairs and Human Rights, the Social, Health and Family Affairs Committee, the Committee on Parliamentary and Public Relations and other committees concerned, as well as looking into the policy of the Council of Europe as a whole in this matter.

B.       Strategies to overcome obstacles:

      —Na       tional machinery27

27.       The creation of national machinery to promote equality is the main strategy to overcome obstacles. In many countries, especially in the new member states and those whose parliaments enjoy special guest status, institutional channels are not sufficient to guarantee representation of women in public life. Furthermore, discrepancies exist in the current legislation as regards the treatment of women as individuals instead of as wives.

28.       The Steering Committee for Equality between Women and Men (CDEG) organised an "International Workshop on national machinery to promote equality between women and men in central and eastern Europe" at the end of 1994 in Ljubljana. At this workshop specific emphasis was laid on the twofold dimension that equality policies pursued in the framework of national machinery must espouse:

      i.       on the one hand, the horizontal dimension of these policies, cutting across all sectors and areas of government, in order to guarantee a gender perspective in the policies adopted, and

      ii.       on the other hand, specific policies and programmes, both in traditional areas of government responsibility and in "new" areas which have recently been made visible in the political arena, such as violence against women, the growing feminisation of poverty, traffic in women, etc.

29.       To fulfil this purpose, it will be necessary to establish national level institutional machinery that focuses its activities on the determined eradication of discrimination in all aspects of life. Such institutions should have a high political profile, be vested with political power and have at their disposal adequate resources. Examples might be: equality commissions, offices of the plenipotentiary for women's affairs, offices of equal status, offices of the "ombud type", or ministers for women's rights with responsibility for promoting equality and parity.

      —An       ti-discriminatory legislation30

30.       Another strategy to overcome obstacles to equality in member states, as already proposed in Resolution 1018 (1994), is the inclusion of the principle of equality of rights in those constitutions which currently lack it.

31.       Many member states do already have such a provision in their constitution. However, this provision is rarely backed up by concrete legislation that makes any act of discrimination on grounds of sex an administrative or criminal offense. This, however, as I also emphasised in my last report, is necessary. If the discrimination of women continues to go unpunished, it will be very difficult to eliminate. Mentalities change only slowly; the threat of punishment can assist in the learning-process.

32.       This is especially valid in some of the countries of central and eastern Europe, where it sometimes proves difficult for women to obtain rights guaranteed by law due to the lack of response from law enforcement officials when laws are broken and the lack of penalties.

III. International legal instruments on equality

33.       It is exceedingly important that international legal machinery also be strengthened in the field of equality, since many of the obstacles to the realisation of the concept of parity democracy seem to be in part connected with the fact that the right of women to equality and self-determination has yet to be recognised at the European level as an autonomous, fundamental right, while it is being undermined on the worldwide level. Accordingly, this chapter deals both with the European Convention on Human Rights and the United Nations Convention on the Elimination of All Forms of Discrimination against Women.

A.       Inclusion of fundamental right to equality in the European Convention on Human Rights

34.       As I already observed in my January report, the principle of non-discrimination on grounds of sex is included in Article 14 of the European Convention on Human Rights. However, the present Article 14 is of a subsidiary character and of limited scope: the principle of equality is not the same as that of non-discrimination. In January 1994 the Assembly agreed with me that an independent, positive right to equality should exist and be protected through the said Convention. For this reason the Assembly recommended to the Committee of Ministers in Recommendation 1229 (1994) that it "establish the principle of equality of rights between women and men as a fundamental human right in an additional protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms".

35.       I am disturbed by the fact that the work on this additional protocol is not progressing very fast on the level of the Committee of Ministers. The Assembly can but reiterate its demand and ask that the proposals included in its Recommendation 1229 (1994) be speedily implemented.

36.       I am currently working on a separate report on Article 14 (the non-discrimination clause) in the European Convention on Human Rights, which I hope to present to the Assembly later this year.

B.       Monitoring the respect of the fundamental right: United Nations Convention on the Elimination of All Forms of Discrimination against Women and reservations made by Council of Europe member states

37.       One of the advantages of the European Convention on Human Rights is that it provides an efficient control procedure with the European Commission and European Court of Human Rights — this is why pressing for the inclusion of the right to equality in the Convention is of such fundamental importance. As I also outlined in my January report, other international legal instruments (which unfortunately lack a comparable control procedure) do exist, such as the United Nations Convention on the Elimination of All Forms of Discrimination against Women.

38.       The above convention was adopted by the General Assembly of the United Nations on 18 December 1979. Until today, twenty-seven (out of thirty-four) member states of the Council of Europe have ratified or acceded to this Convention, and three (out of eight) states whose legislative assemblies enjoy special guest status: Austria, Belgium, Bulgaria, Cyprus, the Czech Republic and Slovakia (as successor states to Czechoslovakia), Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Luxembourg, Malta, the Netherlands, Norway, Poland, Portugal, Romania, Spain, Sweden, Turkey and the United Kingdom, plus Belarus, Ukraine, Russia (as the successor state of the Soviet Union). Switzerland has signed, but not yet ratified the convention. Latvia, Liechtenstein, Lithuania, San Marino and Slovenia (of the member states) have not yet signed or ratified the convention, nor Albania, Bosnia-Herzegovina, Croatia, the Former Yugoslav Republic of Macedonia, and Moldova (of the special guests).

39.       The convention aims at eliminating all forms of discrimination against women. In the preamble, the States Parties to the convention recall that discrimination against women violates the principles of equality of rights and respect for human dignity, is an obstacle to the participation of women, on equal terms with men, in the political, social, economic and cultural life of their countries, hampers the growth of the prosperity of society and the family, and makes more difficult the full development of the potentials of women in the service of their countries and of humanity.

40.       In Article 1, the term "discrimination against women" is defined, for the purposes of the convention, as meaning any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.

41.       The convention further specifies the undertakings of the State Parties to take all appropriate measures to eliminate discrimination against women in the political and public life of the country, and to grant women equal rights with men to acquire, change or retain their nationality, as well as with respect to the nationality of their children (part II of the convention).

42.       Part III of the convention covers the areas of economic and social life, while part IV secures equality before the law for women, and the elimination of discrimination in all matters relating to marriage and family relations.

43.       In part V of the convention, the setting-up of a committee on the elimination of discrimination against women is provided for, to which State Parties to the convention must submit their national reports and which publishes an annual report on follow-up measures and progress on the rights established in the convention.

44.       Unfortunately, though the convention itself is very laudable and an important legal instrument in the field of equality, its effectiveness is undermined by two factors: Firstly, the convention lacks any provision enabling the supervisory machinery to receive and examine notifications and complaints, either from states or from individuals. Secondly, too many reservations have been entered by the States Parties to the convention, some of which are incompatible with the object and purpose of the convention.

45.       As an example for a reservation which runs counter to the convention's objectives, the Libyan Arab Jamahiriya entered a reservation by which it limited its responsibilities under the convention by invoking religious law (Shariah). This should be considered an unacceptable infringement of women's individual rights, which should be valid universally, independent of any specific cultural environment, as indivisible human rights. Some Council of Europe member states have also made reservations which can be considered contrary to the object and purpose of the convention. For example, Turkey has entered a reservation with regard to the articles of the convention dealing with family relations which are not compatible with the Turkish Civil Code. A significant number of reservations limiting the convention's application, although not generally considered contrary to its object and purpose, have also been entered by other member states, notably Austria, Belgium, Bulgaria, Cyprus, France, Germany, Ireland, Italy, Luxembourg, Malta, the Netherlands, Poland, Spain, and the United Kingdom.

46.       All these reservations cast serious doubts on the commitments of the reserving states to the objects and purpose of the convention, and contribute to undermine the basis of international treaty law. Instead of making reservations, if national law is incompatible with the convention, national law should be changed to make it compatible. I can only call on all member states who have not yet signed and/or ratified the convention to become parties by the year 2000 (as the Assembly did already in Resolution 1018), and on all member States Parties to the convention which have made reservations to amend their national legislation and withdraw the reservations as soon as possible. States who enjoy special guest status should do likewise.

47.       Member states should also be asked to support the adoption of the draft additional protocol to the CEDAW Convention, empowering that convention's supervisory body to examine individual and group complaints.

48.       The same should apply to the Council of Europe's own Social Charter: the draft protocol to the European Social Charter providing for a system of collective complaints needs to be speedily adopted, since it would enable specific women's rights enshrined in the Social Charter or its protocol to be enforced, such as the right of men and women workers to equal pay for work of equal value, the unlawfulness of an employer giving a woman notice of dismissal during her absence on maternity leave, and the right to equal opportunities and equal treatment in matters of employment and occupation without discrimination on the grounds of sex.

IV. Conclusions

49.       Human rights of both women and men are universal and indivisible, and it is the duty of all states to ensure their respect and enjoyment, irrespective of socio-cultural and religious traditions or economic and political systems.

50.       The right to equality between men and women is one such fundamental human right. The concept of parity democracy recognises the fact that humanity is composed of women and men with equal dignity and value; it means full participation of women on an equal footing with men at all levels and in all aspects of the running of a democratic society.       

51.       However, in some countries even de jure this fundamental right does not exist, and if it does, more often than not it is de facto not implemented.

52.       What needs to be done to remedy the situation? I propose, on the national level, to establish appropriate equality machinery in the form of institutions and anti-discriminatory legislation. On the international level, the right to equality should be incorporated into the European Convention on Human Rights as an independent, autonomous and justiciable fundamental human rights, which would guarantee respect for this right on an individual basis. Other international instruments, such as the European Social Charter and the United Nations Convention on the Elimination of All Forms of Discrimination against Women, must also be strengthened. Only then will the fundamental human rights of women be adequately safeguarded.

      Reporting committee: Committee on Legal Affairs and Human Rights.

      Budgetary implications for the Assembly: none.

      Reference to committee: Doc. 7127, Reference No. 1966 of 5 September 1994.

      Draft recommendation and order adopted by the committee on 13 March 1995 with 25 votes in favour and 1 abstention.

      Members of the committee: Ms Err (Chairperson), MM. Schwimmer, Jansson, (Vice-Chairpersons), Amaral, Arnalds, Bartumeu Cassany, Bentkowski, Berti, Bindig, Borg, Bučar, Candal, Columberg, Croze, Fogaš, Frunda, Fry, Fuhrmann, Galanos (Alternate: Christodoulides), Mrs Gelderblom-Lankhout, MM. Guenov, Hagård, Mrs Holand, MM. Hunault, Inönü (Alternate: Kiliç), Mrs Jaani, MM. Jaskiernia, Kairys, Karas, Kastanidis (Alternate: Vrettos), Kempinaire, Kirca, Lord Kirkhill, MM. Koschyk, Loutfi, van der Maelen, Maginas, McDowell, Mészáros, Moeller, Németh, Poppe, Rathbone, Rhinow (Alternate: Gross), Robles Fraga (Alternate: López Henares), Rodeghiero, Salvi, Mrs Scopelliti, MM. Severin, Solé Tura, Mrs Soutendijk-van Appeldoorn, Mrs Theorin, MM. Trojan, Vinçon, Mrs Wohlwend.

      N.B.       The names of those members who took part in the vote are printed in italics.

      Secretaries to the committee: Mr Plate, Ms Bakardjieva and Ms Kleinsorge.