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Some considerations concerning women’s rights

Yu. Diachuk, Kyiv
During several recent decades international and national legislation has enriched with various documents about human rights. A significant part of these document relates to the regulation of the legal rights of women. The permanent attention to women’s rights on the side of states considerably promoted the acceptation of legal acts and recommending acts of the universal and local character. By and by national legislation systems begin to accommodate to the international standards of women’s rights. In general, the attitude to women in the society has been considerably corrected. The women have not only won some rights, they have got rights equal to those of men.

Nonetheless, the very fact of existing special rights for women is neglected in the society. So, it is necessary, first of all, to answer the question: is it reasonable to single out women’s rights as a separate block? And here one must remember the specifics of this group of rights, which mostly belong to the universal conception of human rights, but in some cases even get outside its framework.

First, a great complex of human rights belong to all social groups of population, that is why women’s rights are surely human rights too.

Secondly, women’s rights are rooted in the same documents as the universal conception of human rights. That, first of all, is the UNO Statute of 1945, in whose preamble the member-countries pointed out again the importance of human rights and the equality of the sexes. Article 1 of the Statute proclaimed the respect to the human rights without the division according to the sex as the main goal of the UNO. The same principle is declared also in Articles 8, 13, 55, 76 of the Statute, the duty of member-countries to cooperate in this respect is fixed in Article 56.

The Universal Declaration of human rights of 1948 has become another corner stone of the human rights and women’s rights. The principle of non-discrimination of women is again pointed out in Article 2 of the Declaration.

However, the conception of discrimination is not always suitable when we deal with women’s rights. This is so because these rights are somewhat peculiar. Among others, the maternity right does not concern the stronger sex. This fact must be the basic one in our discussion. It is especially important because discussions about violating women’s rights really concern this topic. The conception of discrimination is suitable when we speak about the cases when the obvious advantage is given to men, when the latter are given advantages in distributing certain rights, freedoms or opportunities. In the case of maternity, the discrimination in the favor of man is impossible. So this group of rights is peculiar as to the legal regulation.

It seems that according the women’s right to give birth to a child there must be no controversies. Yet, in practice, these rights of women are grossly violated. Some statistical data confirm this statement. So, the absence of information and adequate sexual education say, in Argentina, results in the death of 333 women because of abnormal births, and bring about 861 deaths because of gynecological ailments per year. This happens partly because 40% of women have no opportunity or desire to turn to doctors. This idea is confirmed by the fact that from half a million of women, that die of births every year, 98% are from weakly developed countries. The reasons of the mortality are also rooted in the defects or absence of social services, of systems of maternity protection, and often just the absence the needed information and women’s remoteness from the civilization.

As a result, the high birthrate and high mortality rate of newborns both become inevitable. Say, in Africa, the birthrate of 1000 newborns is accompanied by 700 stillborn babies, when in Europe the corresponding figures are 100 thousand and 10.

One of the most frequent reasons of death among women is abortion. In Argentina, according to data of the department of health protection of mothers and children of the Ministry of social relations and health protection for 1985, 400 thousand abortions were made. It became a frequent contraceptive measure among poorer women. Besides, 80-90% of women in the Third World give birth without qualified medical aid (data for 1991). All these problems require flexible and reasonable interference on the side of the state for regulating family problems with the aim of protection of mothers’ and children’s health.

It deserves attention that these were family questions from which human rights protection activities in the sphere of women’s right began. In general, the history of feminist movement counts about a century. As long as in 1902 the Hague international conventions concerning collisions of national laws about marriage, divorce and guardianship were adopted. The League of Nations treated the problem very seriously, and in 1935 and 1937 several basic reports on the state of women’s rights were prepared. Similar studies were carried out on the regional level, especially in the North and Latin America.

The legal documents were accumulated, but the decisive step was made in the UNO Statute, where equal rights for men and women were adopted. By and by a number of related documents were adopted by the UNO General Assembly and the International Labor Organization.

The ’second wave’ of the feminist movement was aimed at the factual, not only juridical, equality of men and women. The period between 1975 and 1985 was declared to be the Women’s Decade. In 1993 the Declaration on liquidation of violence against women was confirmed. It was this document that finally pointed out massiveness of this phenomena.

After this long and fruitful work the women’s rights seemed to become very popular in the world. Yet, only the UNO Vienna Conference in 1993 for the first time officially confirmed the existence of special women’s rights and the wide scale of their violation. At last, at the conference in Rio-de-Janeiro in 1999, the key role of women in human progress was officially confirmed.

Having such a rich legal base and the history of active work, the women’s rights protection movement nowadays reconsiders its positions even about the legislation technologies and the very conception and interpretation of women’s rights. That is why the new legal norms on women’s rights have to be created on the basis of the so-called women’s legal analysis. The existing conception of human rights has an obvious trace of men’s approach to rights, since the main document in this sphere were created by men, since all the world culture of recent millennia is characterized with ‘the masculine orientation’. The application of women’s legal analysis in the legislation process does not mean that the norms to be created would be more biased for women than for men. This only means that in the estimating the effect of such laws on the human rights theory and practice it would be necessary to assess how women themselves perceive violations of their rights.

Up to now women-MPs and legislators were in the minority of absent. In Latin America, as well as on the entire post-Soviet space, in 1987 the proportion of women in national parliaments equaled from 0% to 13.3%. In general, these indicators grow very slowly and did not step over the mentioned upper limit. And in Antigua, Barbuda, Santa Lucia and Uruguay the women even do not figure in the candidates’ lists. The additional factor is the massive illiteracy of women, that reaches in the Caribbean 23% — 45% in various countries.

In 1990 only 3% of administrative positions in the world governments were held by women. This proportion, however, is not uniform. In the governments of 93 countries no women work. Even in international organizations of the UNO structures and the Council of Europe, which often initiate adoption of the documents on human rights, the women executives make only 5%. The women representation in top echelons of power in the world makes less than 10%, mostly in specific branches: education, health protection, social welfare. The problem is that any political activity of women is practically impossible, since the time-table of work in the organizations and establishments suits a man more than a woman, who has family duties.

One of several opportunities to increase the number of women-MPs is to adopt national laws about quoting the number of women in the candidates’ lists and in parliaments. Such a practice is adopted in Sweden, where the number of women in the parliament and in government equals 50%.

The first official documents, such as the UNO Statute of 1945, the Universal Declaration of human rights of 1948, the Declaration of the UNO General Assembly ‘On the liquidation of discrimination of women’ of 1967, fixed the equality of sexes, whereas the Geneva Convention of 1979 for the first time introduced the legal norm that liquidated all forms of discrimination of women as different from a mere discrimination on the basis of sex. Thus, a deviation was made from the principle of so-called gender neutrality, which demanded the same attitude to men and women based on their equality. It was officially recognized that the peculiarities of women, the necessity of protection of health of mothers and children and the wide practice of discrimination demand special legal norms.

For a long time the conception of the absolute state sovereignty and the activities of sovereign countries on their territory did not obey to be influenced, thus standing in the way of realizing women’s rights. That is why this group of rights is usually related to the third or fourth generation of human rights, together with the rights related to the environment and refugees. But since the time when the recognition of women’s rights became one of the international standards of observing human rights, a question was at once raised about the responsibility for violating such rights.

Certainly, nowadays not a single state is not able to abuse the established norms of the international rights without being punished. Yet, up to now, the main problem, with which women’s movements and organizations come across, is the tendency to single out women’s rights from the entire sphere of state activities. It is so because one of the main features of the international standards of human rights is that that they have a state basis, i.e. that a violation of human rights is such only in the case, when the state, that signed the related international document, is responsible for this violation to when the abuser is a state officer, who works within the rights given to him by the state. A positive example in this respect may be the activities of the European Court of human rights in the case ‘Cyprus vs. Turkey’ of 10 July 1976, when Turkey was found guilty for raping Cypriot women by Turkish army men. That created a precedent for blaming a country for the actions of the country official representatives.

However, the violation of women’s rights is done not so often by state or its official representatives, as by private citizens in the sphere of private relations. In this case we have not the opportunity to demand international responsibility from a state, but only about the responsibility of private individuals for the violation of the national legislation. Yet, there are still countries in the world with the weakly developed legislation, that cannot guarantee the efficient protection of women’s rights in the case of their abuse. That is why some countries still protection the viewpoint that such violation are not covered with international legal documents, since such relations are not regulated by the state laws and are considered to be the private sphere.

Such position is ill-grounded, since the International Pact of civil and political rights of 1966 states that the state is obliged ‘to guarantee to all persons, who stay on their territory and obey their jurisdiction, all the rights stipulated by the mentioned Pact’. So states must guarantee to their citizen the rights they have and to take up the necessary measures from their violation. This is approved in the Geneva Convention of 1979 that encompasses international norms about the protection of women from discrimination in national legislation. Moreover, taking account of the fact that the impossibility to observe women’s rights is often linked with religion and national culture, the duty of states was stipulated to change the customs of men and women with the aim of getting rid of prejudices, traditions and other practices, based on the idea of the inferiority of women or on the stereotypes of men’s and women’s roles. This means that in the international legal field the mainstays of the state behavior for the efficient protection of women’s rights are clearly marked. However, in the real practice, all these duties are executed very slowly or in general remain ignored. So, for example, at the state in 1996, the laws against the family violence were introduced only in 44 countries, against raping the wife – in 17 countries, against sexual harassment – in 29 countries, against maiming women genitals – in 14 countries (although every year about 2 million of women suffer from this brutality).

In general, the violence to women remains one of the most serious problems in the world. This problem is very wide, since violence has many forms.

The conception ‘cruelty’ or ‘violence to women’ includes every kind of violence related to the features of gender or a threat of such violence, aggression, physical, sexual or psychic sufferings inflicted on a woman, illegal limitation of freedom in the social or private life. Nowadays the violence can assume various forms: the physical violence applied to children in a family, coerced marriage or marital rape, incest, exploitation of women, coerced prostitution, sexual molesting in education establishments and at a job, abuse or limitation of human rights during armed conflicts. The most frequent kinds of violence: beating, rape, maiming, burning of a bride, coerced marriage, maiming genitals, violation on behalf of states with anti-democratic regimes, and discrimination as one of many kinds of violence.

Now human rights protection movements and international government and non-government organizations have enough information and statistical data, which again and again prove the actuality of the problem. This problem is neither artificial nor exaggerated. Thus, recently about 60 million have disappeared owing to unknown reasons, but the final cause is the discrimination of women. About one million of girls annually are coercively driven to prostitution; each 9 seconds in the USA a woman suffers from an act of violence from her sexual partner; more than 5000 women in India are killed annually because relatives of their husbands regard their dowry as insufficient. In some countries of the Near East and Latin America men are often pardoned for the murder of an unfaithful, disobedient or strong-willed wife, since this is considered as the question of ‘honor’ and may be explained by the ‘excitation of man’, the state of affect. There is evidence that violence and rape of women are a strategic maneuver.

But nevertheless, the most violent and brutal demonstration of abusing women is the ‘white slavery’ that is trading of women. This problem is the best investigated and legally regulated compared to all other problems that was posed before the world public by the global human rights protection movement. There exists a long list of documents that made the ‘white slavery’ illegal. They are: Paris international agreement of 1904, conventions of 1910, 1921, 1933, the UNO Convention against the trade of people and exploitation of the prostitution by the third side of 1949, Convention on slavery of 1926, Additional Convention on abolishment of slavery, slave trading, institutes and practices similar to slavery of 1956.

Slavery is a crime in the entire world for a long time, that is why it seems implausible that the all the center of Europe is divided in sex-industry into the countries-customers and countries-providers of women for prostitution. Such countries as Sweden (1500 sex-workers are registered here annually), Finland, Germany (one of the most active buyers of women in the world, in 1996 the number of prostitutes reached 50 thousand), France, the Netherlands, Belgium, Switzerland, the USA, Japan and Macao are the most active users of the lively goods in the world. At the same time the Baltic countries, Poland, Russia, Ukraine, the South Africa and Latin America are the best providers of potential prostitutes to the developed countries.

This is not accidental that the poorest countries or the countries, which go through the period economic reforms or are to be on the way of development, are centers of the world supply in the sphere of sex-business. That is economic difficulties and the low living standard which make women to seek for work abroad.

That is true, that the problem of discrimination of women even in the well-developed countries, so it is easy to imagine how bleak are the prospects of women in the countries, where women have ever been the second-rate population. It is not surprising that the World Bank in 1992 formulated this problem as a factor of artificial creation of super-occupation of men and unemployment of women. According to total calculations, more than 50% of women work in services, on less socially valuable jobs (although 78% of women get higher education, only 26% work according to their preparation), that is get smaller salaries. In the families, where a woman is the only provider, the situation becomes really difficult. Such families are officially regarded as poor.

According to the data of the same World Bank, in 1994 in Argentina, the most developed country in the Caribbean, in 100 largest firms of the country women occupy only 4.9% of jobs, in services – 6.2%, in banks – 3%. At the same time, finding a job for a woman is rather problematic, since the employers require many specific demands concerning age, marital status, origin, number of children, the place of residence. According to the official data, 80% of employed women earn poor salaries owing to the reasons that have nothing in common with their qualification, women have a smaller access to credit and financial services, education programs and investigations, they make their carriers in a much slower way. And what can be said about women, who are illiterate? What a chance to find a job have they? The number of such women reach 45% in some countries of the Latin America.

So, the reason of separation of countries into countries-providers of slaves and countries-consumers is always economic and often political drawbacks. That is why the duty of the countries with have such disadvantages is the creation of protective laws aimed at the illegal export of women abroad.

A typical example of such a legislation is the Ukrainian one. One of the directions of state activities in this sphere is the punishment of traffickers, slave trade and coercive prostitution. In Ukraine the most frequently applicable norm is Article 210 of the Criminal Code of Ukraine (‘Keeping brothels and procuration’). In 1995-1997 the number of the convicted by this article was 14 persons. There are also Articles 119, 123, 208, which are aimed on the protection of the women’s sexual freedom, but they are applied much more infrequently. In the draft of the new Criminal Code of Ukraine Articles 141 and 149 are introduced, which stipulate the prohibition of trading women and coercive prostitution.

Since Ukraine has joined the UNO Convention against the trade of people and exploitation of the prostitution by the third side of 1949, Convention on slavery of 1926, Additional Convention on abolishment of slavery of 1956, it is necessary to improve the national legislation with the aim of the protection of women against their illegal export abroad. Thus, by the Law of Ukraine of 28 March 1998 a number of changes was introduced to the Criminal Code of Ukraine, and Article 124 was added about the slave trade. This article stipulates the ban for trade or exploitation of people in sex-business, the punishment being incarceration for the term up to 8 years with a possible confiscation of property, in the case when minors are involved – from 5 to 10 years.

Such reaction of the state was provoked by the massive export of the Ukrainian women abroad. 400 thousand women (which is 10% of the total world number) up to 30 left Ukraine during the last decade. Very often they are tortured and killed.

There is no doubt that the protection of women nowadays is quite urgent, since there exists no country, without any kind of violence against women. Now this is not just a juridical, legal, economic, political and social problem. Nowadays it is mainly a cultural problem, a problem of archaic stereotypes, unjustified social preferences and standard roles, which are disbalanced to the advantage of men. So, a state must not only ratify the needed international documents and create a flawless legislation. First of all such a social medium must be created, in which the observation of women rights and human rights in general would be a reality. These changes shall, step by step, create a new system of social relations, which will be based not on sex differences, but on social and legal factors. Such system of social relations is called now ’gender’.
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