Culture, Custom and Women's Human Rights: CEDAW Convention Article Five
KEYNOTE: CEDAW CONVENTION ARTICLE 5
The Convention on the Elimination of All Forms of Discrimination Against Women prescribes cultural and social change to achieve total equality for women. CEDAW Article 5, addressing the cultural, customary and religious practices that impede women's human rights around the world, underscores the human rights principle that tradition can never be invoked as a justification for discrimination. Article 5 requires States Parties and individuals to change the fundamental attitudes and stereotypes that marginalize women in public and private spheres. It addresses the necessity of not only de jure, but de facto change.
In an effort to move Article 5 toward the center of women's human rights' implementation, the International Women's Rights Action Watch (IWRAW) held a consultation on the subject in January 1999. Bringing together an international panel of academic, legal and activist experts in New York, the consultation sought to frame the most critical aspects of women's human rights with respect to Article 5, analyze its place in the Women's Convention, and explore the links that exist between Article 5 and other international human rights instruments. The consultation focused on theoretical concerns as well as practical results, and was designed to generate and assess specific strategies for addressing the issues of culture, tradition and custom with respect to health, education, employment and family law.
The consultation was opened with a keynote by Hon. Unity Dow, Judge of the High Court of Botswana. Dow is well known as the plaintiff in the Dow v. Attorney General, the landmark case in which she successfully challenged the citizenship law of Botswana on grounds of sex discrimination. She now is en route to becoming even more well known as the first female judge in Botswana, appointed in part on the basis of her record in using the legal system to challenge stereotypes and traditions as they affect law and policy.
Dow remarked on the complexity of the transition from speaking with an NGO voice to speaking with the impartial, official voice of the judiciary, from challenging the government to being in government. But she went on to say that even as an impartial jurist, her position can be used to advance the status of women. Judges in a common law system have the opportunity to develop the law in the context of evolving human rights standards, but most of them have not heard of the CEDAW Convention or its ratification in Botswana. Dow is in a position to inform her judicial peers about human rights. NGOs remain important to her work in the court, as a source of cases in which she can use her expertise in family law and human rights and as a general information source.
Dow's appointment challenged stereotypes in major and minor, but important, ways. Her status as the first female judge in the country is in itself a "stereotype buster." People have to think now about issues such as the standard form of addressing a judge (the usual "my lord" will not do), having female security guards, and providing chairs in chambers and in the courtroom that are sized for a woman to sit in.
The appointment also is an acknowledgment of how far women have come in the last decade in the region. Dow's work on women's human rights and on family law involved every aspect of Article 5, and the appointing power saw this as valuable and necessary in the court system.
The lively discussion following Dow's speech revolved around the question of women's attitudes to and the necessity of serving in government. Several participants weighed in with the opinion that despite the drawbacks and the discomfort, NGOs must consider government service as necessary to advance their program. Amal abd el Hadi (Egypt) noted that she had turned down an appointment to a government committee on population, fearing co-optation, but now she sees it as a missed opportunity for input. Most importantly, she said, we must create systems of accountability by government to NGOs, and we must do that by creating linkages between NGOs and government to foster that accountability. Irene Ovonji-Odida of Uganda noted the necessity of having clear goals for those who go into government. With that clarity, it is possible to use existing mechanisms and frameworks, such as the constitution and the CEDAW Convention, to advance women's status. Women in government, including the judiciary, must maintain their links with NGOs so they can know what is important to female citizens-since the men with whom they deal, despite apparent neutrality, certainly are not free from male-centered biases.
THEORY AND ACTION USING ARTICLE 5
Moderator: Professor Christine Chinkin, United Kingdom
Panelists: Professor Shaheen Sardar Ali, Thandabantu Nhlapo, Sunila Abeyeskere
Moderator Christine Chinkin opened the session with a reading and a trenchant comment on CEDAW Article 5. This Article challenges States Parties to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.
The article addresses need for change in law, education and culture to advance women's status. It emphasizes the role of social and cultural patterns of conduct, and the importance of eliminating gender stereotypes to achieve equal rights for women.
The second section of Article 5 requires that family education programs contain a "proper understanding of maternity as a social function and the recognition of the common responsibility of men and women in the upbringing and development of children." In General Recommendation No. 3 (Sixth session, 1987), the CEDAW Committee further urges States Parties to "adopt education and public information programmes, which will help eliminate prejudices and current practices that hinder the full operation of the principle of the social equality of women."
As a statement of an overarching theme, according to Chinkin, Article 5 should be applied in conjunction with each substantive article of the Convention. The understanding and application of Article 5 are complicated by varying interpretations of culture and custom, uncertainty about the place of human rights instruments in enforcement of modification of social and cultural practices, and the difficulty of defining a minimum human rights standard, irrespective of culture or religion. To confront these complex problems, definitions, clear strategies and a careful consideration of culture are essential.
Defining and Deconstructing Culture
Professor Shaheen Sardar Ali, Pakistan
According to law professor Shaheen Sardar Ali, to interpret and use Article 5, we must begin by deconstructing the ways in which governments define culture and use their definitions to justify discriminatory practices. Custom, tradition and culture are not static, conceptual norms, Professor Ali emphasized; they are the evolving, dynamic practices by which a community willingly consents to abide and which should be acceptable to all sectors of society.
Societies with plural legal systems and a multiplicity of regulatory norms provide unique opportunities for interpreting and negotiating human rights. This is particularly true in former colonies such as South Asia and Africa, according to Ali, where the colonizers had fossilized the established norms and the indigenous culture beneath the umbrella of imported western law. In these countries, the social structures defining women's identities are like the layers of an onion. The inner and most resilient core is comprised of the fossilized customary and religious norms, and the outer layers are the colonizers' constitutional norms and legal systems. By drawing upon the numerous precedents and rights within a pluralistic legal system, women may have opportunities to negotiate which set of laws is most beneficial and egalitarian.
Article 5 in a Broader Context
Any interpretation of Article 5 must acknowledge the extent and scope of the substantive obligations it requires. Interpretation is particularly difficult considering that Article 5 has been used mainly in conjunction with other articles, and there is no General Recommendation which specifies States Parties' obligations under the article.
Ali maintained that any interpretation must address attitudinal changes and behavioral patterns spanning a woman's entire life cycle, including civil and political rights, economic, social and cultural rights, and rights of the child. The scope and extent of obligations that states parties undertake with respect to customs and attitudes must span the entire life cycle starting with the girl-child.
Ali highlighted the danger in adopting a narrow view of Article 5 with the following story. A few years ago, while training human rights workers in Afghan refugee camps, Ali emphasized the importance of women's equal access to resources. The group emphatically argued that Afghan girl-children already had such access. Ali explained that in villages, chicken is a rare delicacy. The men eat the breast, thigh and leg, and the women and children are left with the scrawny neck, which the men think of as "access." For Ali the story epitomizes the need to closely examine all facets of culture, even those that we may take for granted as normal, to ensure comprehensive, life-long equality for women.
From Defining Culture to Effecting Change
Ali provided two examples to demonstrate how, by demystifying culture, a discriminatory practice or law can be challenged. The first, polygamy, is said to be a preferred custom of much of the world. The government of a nation in which polygamy is legal is unable to fulfill its obligations under Article 5 because of the massive barriers of religion, tradition and culture. In twenty-five years of research in women's issues, Ali has yet to encounter a single male or female who honestly maintain that they revere the practice of polygamy. Most women abhor the tradition, and men wince at the thought of their daughter or sister being humiliated by it.
In fact, the custom of polygamy is actively subverted by Pakistani society. When a woman enters into a marriage contract, her family often demands an exorbitant payment from the bridegroom to impede his ability to afford to care for another wife. The other way Pakistanis subvert polygamy is by empowering women with education and access to economic resources. If a man is asked why he sends his daughter to university if she is just going to get married and might not be employed gainfully, the answer invariably is, "what if something happens tomorrow? What if the husband tries to bring in another wife? My daughter should be equipped."
Although polygamy is a fundamental aspect of Islamic law, it does not meet the necessary requirements of the definition of custom and tradition. Custom, culture and tradition are the "living law," maintained Ali. If the majority of people in her culture are willing to actively subvert it, the practice does not have the status of living law and cannot be a sanctified custom.
The second example is that of purdah or segregation of the sexes. Purdah is a custom that is sanctified by religion, and its supporters claim that it indicates the honor of women in the culture. Upon closer examination, however, it becomes apparent that purdah is not a feasible practice for the vast majority of people in Pakistan. Only those with resources can afford to maintain the customs of purdah. For example, Ali argues, most women do not have the resources to purchase the yards of fabric to drape around their bodies, nor to hire somebody to buy her food so she can remain indoors.
The culture of purdah is not the genuine culture or tradition or custom of the toiling masses of the women in the construction industry who hardly have one pair of clothes and can't afford yards of fabric. They're picking cotton, working in factories, toiling in fields, so why don't we accept that this culture by definition is an elitist definition, and an elitist culture, and how many elites do we really have in an impoverished country like Pakistan? So if the government would for instance say, "oh this is the custom, culture and practice of Pakistan," I would challenge it because it is not mine.
Challenge to customary practices that oppress women can successfully rest on such deconstruction of definitions and actions.
Identifying Focal Points for Enforcing States Parties' Obligations
Sunila Abeyeskere, Sri Lanka
According to Sunila Abeysekere, Article 5 pushes us to consider the historical construction of differences between men and women, and to explore the divisions between public and private life. Going beyond legal structures, the article identifies the core of oppression and subordination of women as the cult of male superiority and female inferiority and the ways this cult is acted out. It forces us to address the fact that despite the progress women have made, the world still primarily defines women by their private roles as mothers and housewives. Women who do not fit these roles, such as widows, single women, childless women and single mothers, are socially ostracized. Subordination is not limited to Islamic communities; certainly there are many other societies that dictate who women sleep with, if and when they bear children, and what professions they can pursue.
Drastic modification of cultural patterns frightens governments, individual men and women, and all the social structures that depend on maintaining the status quo. For this reason, there has been a great deal of reluctance to analyze or use Article 5. This fundamental resistance to modifying social and cultural patterns that advantage men in society must be taken into consideration when implementing Article 5.
The Preservation of Ethnic Identity
In Sri Lanka, stated Abeyeskere, the reluctance to modify cultural practices and subscribe to a universal set of rights and practices is particularly real because of the 15-year old ethnic war. Minority communities find their identities being threatened. Minority communities need to affirm their identities, not only politically (i.e. through wars of self-determination), but as individuals, in the way they dress, whom they marry, and with whom they link as a community. In a country that is multilingual, multi-religious and multiethnic, the identity needs of minority communities under siege must be respected.
In almost all besieged communities, women are forced to play a dual role. They are forced to reproduce because the community is small in numbers, and must bear the identity of the community by marking their foreheads, covering their heads and wearing their clothes in a particular way.
In this discussion of the ways and means of modifying social and cultural patterns of behavior, it is important to understand communities need identity. While we can never take away people's rights to be who they are, we can not tolerate the mistreatment of women by any culture. One of the reasons that governments do not want to address this issue is that governments in particular have a vested interest in maintaining differences and conflicts between communities. It's an unfortunate realpolitic of our world.
Eliminating Gender Stereotypes
Abeyeskere emphasized the importance of understanding the political implications of challenging social and cultural norms using Article 5, stressing the need to understand how to go about winning change from governments that have a vested interest in keeping differences going.
Abeyeskere emphasized the importance of using the other treaty bodies and linking with other human rights monitoring bodies in developing and implementing advocacy strategies. For example, to change the ubiquitous gender stereotypes in the media, the issue of free speech must be confronted. One strategy is to invoke the concept of hate speech and expression that generates animosity or hostility toward a particular community as it is addressed in the International Covenant on Civil and Political Rights. Part of the strategy is to link with others in the human rights community who are dealing with freedom of expression, censorship, hate speech, etc., that have a clear position, and use their knowledge to inform our actions.
One effective strategy for eliminating gender stereotypes is to start with education. Article 5 refers to the elimination of prejudices in customary and all other practices, and addresses stereotyped roles for men and women. One of the first general recommendations made by the CEDAW Committee (Sixth Session, 1987) calls on states to implement educational programs aimed at removing cultural stereotypes. Yet most States Parties have taken very little substantive action to develop primary education curricula that eliminate gender-based stereotyping. Making primary school curricula more gender sensitive produces concrete and measurable results and has the potential for long range impact in eliminating cultural practices that affirm inferiority of women. It is possible, according to Abeyeskere, to put in place very specific criteria for gender sensitivity in primary education curricula, discouraging stereotypes-they should portray mothers who work and fathers who change nappies.
Family education, which is addressed in Article 5 (b), is another natural entry point for engaging States Parties. In many countries, the taboo topic of sexual education is couched in the language of family education. According to Abeyeskere, we may challenge States Parties to define what they mean by family education. Who is educating whom about family? What kind of family?
Family education is great because it talks about maternity as a social function. Nobody in our governments talks about maternity as a social function. Maternity is seen as one's function as an individual mother. Health authorities have to make sure that I reproduce safely and don't produce too many children, but not as a social function. I'm fulfilling an obligation to society by having children or not having them, or by deciding when and how to have them, that's not on anybody's agenda. But this article talks about the common responsibilities of men and women in the bringing up of children, and I think that we tend to overlook the part about family education . . . If we win on the grounds of proper family education that does not stereotype and is respectful to women, then I think we've moved a long way toward modifying social and cultural practices.
Using Existing Cultural Structures to Effect Change
Dr. Thandabantu Nhlapo, South Africa
Dr. Nhlapo, a former law professor, provided examples from his current experience working on law reform in South Africa, where the attempt has been made to constitutionalize Article 5. Many aspects of South Africa's equality and nondiscrimination provisions are designed specifically to end discriminatory practices and gender stereotypes in traditions and customs. Yet the right to enjoy the culture of one's choice is also enshrined in the constitution, as is the right to be bound by a personal family law, whether or not that personal law arises from a particular custom or tradition.
Agreeing with Professor Ali's onion analogy about the layers of women's identities, Nhlapo added that the conceptions of culture in African countries that have undergone the colonial experience, particularly the British colonial experience, have themselves been distorted and fossilized. For example, a Norwegian scholar published a study on childlessness in Zimbabwe. She had assumed that levels of education of a particular woman or group of women would correlate with some of the strategies that they use to deal with childlessness. Instead, the study revealed that regardless of their level of education, women's decisions about dealing with childlessness were still heavily influenced, first, by traditional healing, and second, by the church.
Nhlapo described and evaluated three of the major strategies that have been used in South Africa to modify discriminatory cultural practices. The first is "internal adjustment," the modification of customs and practices within a particular community. Though this may sound like a tenuous method, it is the most sustainable and lasting when completed. In Swaziland, where customary law discriminates against widows, a member of Women and Law in Southern Africa Project (WLSA) has formed a widows' association, which has marched on the palace to demand redress for discriminatory rules, such as not being allowed to appear in public during mourning, and therefore not voting in the last election because that would mean appearing in public. As a result of NGO pressure, the plight of widows is now on the agenda in that country. Agreeing with Ali, Nhlapo stressed that custom is adaptable changing, so there is a scope of internal adjustment, which can include tribal lawmaking and a variety of other modifications.
Another strategy, "judicial interpretation," involves enabling the courts to play a key role in spearheading changes. If a country has constitutionalized some of aspects of Article 5, then its courts have the necessary tools to work with. This strategy is currently being used in the South African courts. One case involves the customary practice of exchanging cattle or other items of value between the man's family and the woman's family, which is called lobolo. In a recent case, the validity of a marriage was challenged on the basis that either lobolo had not been negotiated or that it had been paid through the wrong person (the mother instead of the father). In this situation, where the father had abandoned the family, the mother was considered the head of the household. The court determined that the family was not required to find a male relative to negotiate and receive lobolo, maintaining that the mother has as much a right as the father to make and receive lobolo. Agreeing with Abeyeskere's position that minority identity must be represented, Nhlapo stated that this position carries even more force in South Africa, where the "minority" group is in fact the majority. Liberation is expected to enhance the profile of African ways, not to diminish them. It is important to respect a particular custom, while requiring it to operate fairly.
The third strategy, "conscious law reform," argued Nhlapo, should be considered a key option for eliminating discriminatory practices in cultural practices. This entails taking steps to deliberately change laws while being sensitive to the complexities of culture and customary norms. In South Africa, Nhlapo has been involved in such legislative reform, and he emphasized the critical role that NGOs can and must play in the process.
Luisa Ait Hammou, a participant from Algeria, emphasized an additional complexity in reforming legally sanctioned customary practices. In some cases, she stated, legislation can actually be less progressive than social mores, although social mores also present problems. For example, polygamy is legal in Algeria, but it is rarely practiced. But its legality has never been changed, because no one uses it. As a result, many NGOs do not consider it as much of a priority as Article 39 of the Family Code, which requires women to obey their husbands. And yet it is necessary to advocate on both articles, as they are related to social practices. When social practices are much more advanced than the law, it is important to devise appropriate strategies.
STRATEGIES FOR ADVOCACY USING ARTICLE 5
Moderator: Miho Omi, Japan
Panelists: Dr. Fanny Cheung, Amal abd el Hadi, Katsumi Nishimura
Government Reform: The Equal Opportunities Commission in Hong Kong
Dr. Fanny Cheung, Hong Kong
The government of Hong Kong established the Equal Opportunities Commission (EOC) in 1996 in accordance with a sex discrimination ordinance that had been adopted the previous year. It is a sixteen-member statutory body which is independent from the government, but fully funded by it. Dr. Cheung explained that the anti-discrimination legislation covered by the EOC includes a sex discrimination ordinance but also includes disability discrimination and family status discrimination. Under the sex discrimination ordinance, unlawful acts of discrimination are considered on the grounds of gender, marital status, and pregnancy. It encompasses both direct and indirect discrimination, sexual harassment and victimization.
Regulation of the employment field by the Hong Kong EOC includes recruitment, terms and conditions of employment, employee benefits, training, promotion and dismissal. The legislative mandate also encompasses non-employment fields such as education, provision of goods, services, and facilities, government activities, management and disposal of premises and professional club memberships.
The EOC operates to eliminate discrimination and promote equal opportunities. To this end, the EOC conducts legislative reviews, issues guidelines for employers and government bodies, and investigates grievances. According to Hong Kong law, an aggrieved individual can either take the issue to court in a civil suit or lodge a complaint with the Commission. If the complaint is lodged with the EOC, it is obligated to investigate and conciliate the matter. The EOC does not adjudicate; it attempts to settle the case amicably. If the aggrieved person cannot achieve satisfactory settlement through conciliation, he or she can apply to the EOC for legal assistance to bring the case to court, and the EOC can bring a case in its own name if it affects the public interest. The EOC has the power to conduct a formal investigation, obtain information, make recommendation and enforcement notices if it has found after the investigation that an unlawful act has been committed.
Cheung considers that changing societal attitudes and mores is essential to promoting equal opportunities. Attitudes are not unlawful, because people are entitled to their opinion. At the same time, attitudes affect behavior, and punishment only inhibits behavior without replacing it with a new behavior.
Cheung outlined the five major methods the EOC has implemented to eliminate discrimination and promote equal opportunity:
At the outset, public education about the EOC's mandate and functions proved to be critically important. Initially, two conflicting positions existed on how the Commission should operate. Eager for substantive reform and encouraged by the establishment of the EOC, human rights NGOs wanted to see change overnight. In addition, justice had previously generally been administered by an authority acting through prosecutors taking the discriminator. As a result, many in the public expected the EOC to have a prosecutorial as well as an investigative authority.
At the other end of the spectrum, skeptics stated their belief that women were doing well in Hong Kong, and that the EOC should protect men instead of women. Recognizing the public's need for accurate information about the EOC's function, the law, and the concept of discrimination and equal opportunity, the EOC acted quickly to initiate research projects and conduct a public education campaign. It used a public access channel, radio shows and docudramas to reach the population.
In addition to the media campaign, the EOC launched a campaign to foster community participation. The Commission saw this as another effective way to reach many people, and it recognized the value of encouraging various groups to reach out to their own constituencies and inform them about the EOC. It allocated small grants to community organizations to run their own exhibitions, seminars, fairs, and a variety of other events that the Commission thought would reach people effectively and engage the public.
The third strategy was to target groups that were particularly important to reach in the first few years of the program. Employers and workers were the first target, as research revealed that discrimination is most prominent in the employment field, and gets most attention from the public. The EOC organized and conducted training and seminars for employers, issued codes of practice under the law on employment that had a statutory status and provide guidelines on the meaning of the law, what employers can and can't do, interview questions that could and could not be asked, etc. The Commission also engaged teachers and social workers by offering free talks. About 200 times each year the EOC goes to organizations or invites the public to the EOC for free seminars.
The next strategy was to engage corporate entities in the reform process. The EOC sought to convince employers that working collaboratively with the EOC to end discrimination is in their best interest. Maintaining that discriminatory hiring practices lead to a restricted applicant pool, the EOC convinced employers that they would have access to the greatest number of potential applicants, and would therefore have the greatest hiring choices, if they incorporate the EOC's reforms.
The fifth strategy was to develop in-depth educational materials to train trainers on establishing sexual harassment policies. Materials included videotapes, exercises, and other references. They were distributed to groups and individuals for training purposes.
To help coordinate these five areas of activities and monitor their effectiveness, the EOC developed a database and commissioned eight studies to do a baseline assessment to measure effectiveness of EOC programs and changes in attitudes. The Commission has conducted a baseline survey on public perception of gender equality and what people see as sex discrimination.
In the last two years, the EOC's efforts have been devoted to public awareness. According to a baseline survey conducted in 1996, only thirty-five percent of the population knew about the EOC; as of 1997 public awareness of the EOC had risen to eighty-eight percent. In 1996 as many as thirty-seven percent of employment advertisements stipulated gender requirements. The EOC subsequently sent advertising agencies and employment agencies notices reminding them of the law. When an agency continued to specify gender in advertisements, the EOC first sent a warning. If the action was repeated the EOC took court action. By the end of 1997 the proportion of sex-specific advertisements had been drastically reduced.
Complaints and inquiries addressed to the EOC tripled by the second year of its existence. The plan for the next two years is to address discrimination that is inherent in systems, and equal opportunities in the schools.
Article 5 and Employment Discrimination: Japan
Katsumi Nishimura, Japan
Since 1994 nineteen female employees have filed individual law suits against subsidiaries of Sumitomo Industries and the government of Japan demanding payment of back wages due them because of historic sex-based wage discrimination after requests for mediation based on the Equal Employment Opportunity Law (EEOL) were rejected. The basis of the claims is that the Equal Employment Opportunity Law (EEOL) of Japan violates the CEDAW Convention, and that the government's position as to applying the EEOL also violates the terms of the Convention. The Japanese government claims that States Parties to the CEDAW Convention are not obligated to prohibit all forms of discrimination immediately, but gradually. Japanese trials can take up to ten years or more, and plaintiffs consequently carry a tremendous mental and financial burden. Despite these difficulties, nineteen women have sued Sumitomo. Three of them came to New York to talk about working women's status in Japan as exemplified by the Sumitomo cases.
Japan ratified the CEDAW Convention in 1985, after which it implemented the Equal Employment Opportunity Law (EEOL) in 1986. According to Nishimura, one of the plaintiffs in the Sumitomo Electric case, government propaganda maintains that the EEOL has rectified wage differentials and employment discrimination. After the EEOL passed in 1986, Sumitomo, like many other companies in Japan, initiated a personnel system of dividing jobs into separate tracks and assigning men primarily to one track, and women primarily to another, effectively continuing the tradition of gender-based discrimination in the workplace.
Sumitomo Electric Industries was founded in 1897 and employs about 14,000 people, including 1,743 women. Using a personnel system that divides workers into separate tracks, Sumitomo employs Special Office workers, who are prospective candidates for management positions and are responsible for the future leadership of the company, and General Clerical Workers, who perform assistants' jobs. Women constitute the vast majority of General Clerical positions, while most Special Office workers are men. Until 1987, General Clerical Workers were automatically blocked from seeking promotion. A 1998 survey revealed that 2,786 out of 121,900 male workers, or 22.9 percent, were in management positions, compared to twenty-nine out of 1743 female workers, or 1.7 percent. Male high school graduates have been systematically promoted, while female high school graduates remain in the General Clerical category, where they earn sixty percent of male workers' wages.
The Sumitomo Electric employees approached their union for mediation, but it was unwilling to help. In 1994, the women applied to the Osaka Women and Young Workers' prefectural office of the Labor Ministry for mediation under the EEOL, hoping that the action would correct the gender discrimination in promotion of the high school graduates hired to do clerical work. Six months later the head of the Osaka Women and Young Workers' office refused to mediate, reasoning that the female workers could not use the salaries from a different job category to as the standard to rectify discrimination. In 1995, other female workers joined the case. During this time, women for Sumitomo Chemical, Metal and Banking Industries filed suits against the companies.
In 1998, the examination of witnesses finally began. Sumitomo argued that "The male high school graduates were hired by company-wide offices with the prospect of transfer to Special Office work, whereas female equivalents were hired by branch offices without such prospects." However, the plaintiffs had not been informed of the differences in hiring by branch or company-wide offices, nor were they given a choice between clerical work on the company-wide and on the branch basis. According to the company's explanation, women were not employed as Special Office Workers because:
at that the time, since the length of service of women in general was relatively short, (a woman) could not be expected to be trained as a candidate for an executive position who is required to build up business experience. Employees in management positions are expected to often work overtime and during holidays, whereas the maximum working hours of women were legally bound. So it was hard for women to be assigned to more demanding positions, and a transfer to another office was usually beyond the consideration for women, but not for men. In the 1960s, when we hired women, we thought we should be sensitive in our treatment of precious young female workers until they get married. Therefore, even when we had them go on one-day business trips, we tried to not have them go to an unfamiliar place.
The Sumitomo representative testified in this way without recognizing the company's responsibility to treat female employees as independent, mature workers. Moreover, the defense could not refer to any measures the company had taken to redress the results of past gender discrimination. The second witness testifying on behalf of Sumitomo asserted that at the time of the implementation of the EEOL the company had never reviewed its personnel management system, because it thought the system did not violated the new law. He claims that the company had opened the door for General Clerical Workers (who were mostly women) to be transferred to management positions. However, although the company policy had officially changed in 1987, it did not make any actual changes in placement or training. Consequently, it remained rare for female General Clerical Workers to be promoted.
For the plaintiffs, the most painful aspect of the lawsuit is that the government protects the company and does not support the women. In court, the state referred to the authority of the EEOL as follows:
The EEOL was implemented in order to ratify the CEDAW Convention. However, the EEOL does not ban all forms of discrimination based on sex in employment. When a law is enacted, it must not stray from reality . . . (Because of) the realities- women's occupational consciousness, conventions in Japanese employment practices (and) women's family responsibility-the law should fully reflect our society.
Violating Article 5 of the CEDAW Convention, the Japanese government insisted in court that the purpose of the law was not to modify reality. Instead, the EEOL outlines the goals that employers should endeavor to achieve. According to the government, the different treatment of employees caused by different hiring categories does not violate the guidelines. The government revised the EEOL in 1997 to prohibit employers from discriminating against women in recruitment, hiring and promotion, whereas the previous law stipulated only that it is the duty of employers to try to treat men and women equally. But the revision failed to prohibit indirect discrimination, and the guidelines approving the differences in treatment based on the employment category as nondiscriminatory remain unchanged. Consequently, the revised EEOL cannot be effective in eliminating discrimination based on hiring category.
In court, the plaintiffs allege that the EEOL of Japan violates the CEDAW Convention, as does the Government's attitude in applying the EEOL. The Government denied responsibility, asserting that States Parties are not bound to prohibit all forms of discrimination, nor to achieve these obligations immediately. To help clarify States Parties responsibilities under CEDAW, the plaintiffs applied to the court to call Marsha Freeman, IWRAW director, as an expert witness in 1998. The State submitted a statement requesting the court not to accept her as a witness, stating that IWRAW as an NGO is not eligible to judge States Parties obligations, and therefore her testimony would be irrelevant. The court has yet to decide whether Freeman will be allowed to participate as an expert witness.
Nishimura concluded with a plea for the international community's strong and continued support of the plaintiffs in their efforts to pursue the case and eliminate gender-based employment discrimination in Japan.
NGO Advocacy Strategies to Eliminate Female Genital Mutilation in Egypt
Amal abd el Hadi, Egypt
Amal abd el Hadi, a human rights activist in Egypt, has witnessed the critical role NGOs can play in eliminating discriminatory practices by linking with each other and identifying workable strategies. Egypt was one of the first countries to take an active stance against female genital mutilation (FGM). Since the 1950s, the country's commission on human rights has actively opposed practices harmful to women's health, including female genital mutilation. In 1959, the Minister of Health issued a decree prohibiting the practice in public hospitals, although private doctors and individuals could still perform the procedure. In 1995 the Egyptian Demographic Health Survey showed that ninety-seven percent of Egyptian women (out of 15,000 surveyed) have been exposed to the practice of FGM. This shocked the Egyptian government, which had claimed in its 1994 report to CEDAW that female genital mutilation is a fading practice that was only being practiced in rural areas.
NGOs in Egypt had been working in preparation for an NGO forum for the September 1994 International Conference on Population and Development (ICPD), held in Cairo. For the first time, NGOs from all over the country were able to network and coordinate. Development of the ICPD document meant that reproductive and sexual matters were being opened for public debate. The combination of these elements provided Egyptian NGOs with the opportunity to put a very sensitive and formerly taboo issue up for public debate and to use the
conservative attacks against the document to widen the debate about these issues. The discussion became widespread, and the issue received a lot of media attention, thus becoming less taboo.
An Egyptian Task Force Against Female Genital Mutilation had been formed prior to ICPD in 1994. In view of the 1995 survey results on FGM, the group realized that it needed more information about why the practice of female genital mutilation is so widespread and why twenty years of efforts to eradicate the practice had been unsuccessful. They concluded that that the ICPD conference and the newly formed network of NGOs working around the issue represented a unique opportunity, because for the first time FGM was seen as a human rights issue, not just a health-related problem; irrespective of who performs the operation or whether anesthesia is used, it is a human rights violation. The group, after much debate, was able to take a concrete stand on the issue.
Following negative international publicity on female genital mutilation in Egypt, the Prime Minister announced that the practice would be made illegal. However, two weeks after the ICPD conference, after the publicity died, the government declared that female genital mutilation would illegal except in hospitals. The network filed a lawsuit against the Prime Minister, which was frozen shortly thereafter.
After seeing the results of the demographic study, the group concluded that passing a law criminalizing ninety-seven percent of the population was not feasible. Realizing that trying to pass a law through the conservative-dominated parliament making FGM illegal would result in allowing FGM to continue, albeit under better (medicalized) circumstances, the NGO network devised a series of alternative strategies.
They began by working with NGOs all over the country. As part of a national campaign, the network conducted training sessions, in both urban and rural areas. In addition, they trained the media, who then produced films and documentaries, and a state-sponsored TV segment. They lobbied women in government and conducted a public education campaign. In this way, the network continued to challenge the government until the government was forced to change its position.
The group produced materials to counter the belief that FGM was an Islamic practice, and produced a book on the facts and myths of FGM, resulting in the confirmation from the highest religious authority that it is not an Islamic practice. They also conducted research on attitudes and behaviors, particularly in the medical community. The network discovered that there was a village in Egypt that had outlawed FGM since 1991. They signed a document and stopped doing it as a result. In this village, community and religious leaders who were privately convinced that they needed to stop FGM started taking a public stand for the first time. The network distributed information about this to counter the opinion that FGM is a cultural imperative. According to Abd El Hadi, it is very important to work with the local groups and make the issues public, for this is what makes change. The current Health Minister has outlawed FGM completely, whether practiced in a home or in a hospital. 1
A lively discussion followed on the respective roles of state and society in changing customs and stereotypes. Emelina Quintillan, Director of Human Rights Advocacy Training of Women, Law and Development International, noted that Article 5 states at the outset government has an obligation to deal with the question. Therefore, we should be developing strategies on how to engage the system so that we can be successful. In Central Asia and Eastern Europe, certain groups are examining what makes an effective advocacy strategy to get the government to recognize its obligation. An important aspect of this process is to systematically look at what has made an effective advocacy strategy in other countries and adapting it to a new context. Quintillan highlighted the importance of using Article 5 as an instrument for forcing States to recognize their obligation, thereby relating women's human rights to States' responsibilities. She also emphasized that we must focus our attention not only on identifying the problems or obstacles, for most of us already know what the problems are, but on what constitutes an effective strategy.
Aida Gonzalez Martinez, CEDAW Chairperson, responded that change is not the responsibility of the State alone. Of course States Parties have ratified the Convention, so they have to take responsibility. But the Convention is directed not only to the State, but also to individuals and enterprises. The government is responsible to put into place legal, practical and administrative measures, but we are responsible too, for we already know what the problem is, but the millions of women in our countries do not know what is the problem or even their own rights or the role they can play. We are responsible to help them achieve this awareness and understand their rights as women in the world. Our two main responsibilities are to insist that the State accomplish the duties that it has undertaken to follow the Convention and to respect and protect human rights as a whole. And we are also responsible to the rest of the women to transmit this knowledge and give our support, and to imagine strategies to accomplish what Article 5 says. In certain societies women are responsible for care of children, and we women are transmitting these stereotypes. We give boys certain educational toys and girls others. We have to change these stereotypical educational tools.
Another speaker noted that a central issue arising from the presentations is the limitations of law, whether litigation or a piece of legislation. Any legal strategy necessarily has to be coordinated with other strategies such as media, training, research and international advocacy. Through those multiple strategies we have the entry points that would also contribute to sustainable and lasting changes. When we talk about analysis of toys, food, etc., we need to contextualize-addressing the relationship between seemingly innocuous material objects such as food and toys, and ideologies.
IWRAW participants divided into four groups to identify priority issues, cultural obstacles to change, and strategies for using Article 5 with respect to education, employment and retirement, health, and family law. IWRAW Director Marsha Freeman instructed the groups to select key issues, identify the primary cultural obstacles to women's enjoyment of human rights with respect to those issues, and propose quantifiable and workable strategies accordingly.
Marsha Freeman, IWRAW Director
A story related by one of the participants illustrates the power of strategic advocacy to change entrenched customs. In a southern state of India, women's human rights experts implemented literacy programs that included stories portraying women's lives without using gender stereotypes. One of the stories was about advocacy; in it, four women identified an issue that was of particular concern to them, and each person mobilized support by telling several neighbors about it, who then told their neighbors, and in this way the community achieved change.
A sixty year old female student in the literacy class read the story and considered it symbolic of her life. She told her neighbors about it, who also felt that the story was about them. Neighbor to neighbor, they created a huge movement that blocked the sale of liquor (the largest revenue source in the state), toppled the government, and, with savings generated by these changes, established micro-credit programs.
IWRAW Director Marsha Freeman noted that this story is significant in our discussion because it specifically relates to the question of impact-our next frontier. All of the strategies discussed in the consultation are things we know how to do and have done: Public education using the media, challenging and publicizing the challenge to laws and policies, documenting advocacy strategies. Freeman noted that people are often successful in very specific strategies that aren't necessarily about changing legislation; they might be about changing a policy statement or a regulation within a ministry to train people in a certain way. These are things that ultimately change the culture. We know how to do them.
Another theme in the strategies discussion has to do with the role of women in making things happen in public life. This is not only a question of electing women, but of supporting people into appointive positions, as well as supporting women who advise or assist males in leadership positions. These strategies are critical to achieving change. Many of the strategies that were addressed and analyzed during the consultation were about changing laws and policies, literacy and public education programs, using media, etc. One strategy, which was discussed earlier by Dr. Fanny Cheung, involves conducting baseline assessments documenting and measuring the current status of women so that we can later evaluate the effectiveness of the strategies. Although statistical data are often available, information on women's attitudes about their status takes a different kind of analysis.
We are always inspired by other people's successes, not only because knowing about successful strategies can help inform our own decisions, but also because then we can use the examples to challenge our national, state and local governments and convince them that change is possible and has already been achieved in other countries. IWRAW is eager to continue receiving and disseminating information about successful programs.
Freeman stated that Article 5 should be the center of most discussions of women's human rights. For example, apparently unaware of its specific obligations under Article 5, the government of Japan in the Sumitomo case states that it can only go as far as the culture permits, which is a direct contradiction of its obligations under that article. Similarly, Article 5 can be used to strengthen a variety of cases in which we do not think of using it. We must address concretely the questions of stereotyping, custom, religion, culture, and a variety of other factors that seem vague but are used universally to keep women from enjoying their rights. We must remind the States of their obligation to work with this element of the treaty, as a special, cross-cutting obligation, and that we are expecting them to do so.
Sunila Abeyeskere, Sri Lanka. Executive Director, Inform; 1998 recipient of UN Human Rights Prize
Professor Shaheen Sardar Ali, Pakistan. Professor of Law, University of Peshawar; visiting faculty, University of Warwick, UK
Dr. Fanny Cheung, Hong Kong. Chairperson, Equal Opportunities Commission, Hong Kong
Professor Christine Chinkin, United Kingdom. Dean, Faculty of Law, London School of Economics
Hon. Unity Dow, Botswana. Judge, High Court of Botswana
Amal abd el Hadi, Egypt. Women's Program Coordinator, Cairo Institute for Human Rights Studies
Marsha Freeman, USA. Director, IWRAW
Dr. Thandabantu Nhlapo, South Africa. Member, South African Law Commission
Katsumi Nishimura, Japan. Plaintiff in sex discrimination lawsuit against Sumitomo Electric Corporation and Government of Japan
Miho Omi, Japan. Japanese Association of International Women's Rights
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