INTERNATIONAL SYMPOSIUM COMMEMORATING THE 15th ANNIVERSARY OF WORKING WOMEN¨S
NETWORK: Temporary special measures at workplace
Dubravka Šimonovic Aug 29 2010
It is my great honor and
privilege to participate in this Symposium organized by Working Women’s Network
(WWN) on the occasion of the 15th anniversary of its work and 25th
anniversary of Japans ratification of the Convention on the Elimination of all
Forms of Discrimination against Women (CEDAW Convention).
My presentation will be based on
my work as the CEDAW Committee member for the past 8 years. For the past and
the present work of the CEDAW Committee which is constantly evolving and
developing our knowledge on the Convention as a “living women’s human rights
instrument” I would like to acknowledge important contributions provided by the
Committee members coming from Japan. I had an opportunity to work in the
Committee with late Ms. Fumiko
Saiga and with the current member Ms. Yoko Hayasi.
During my two terms as a CEDAW
Committee member and its former Chairperson I had twice the opportunity to
participate at the examination of Japans periodic reports and the adoption of
concluding observations in 2003 and 2009 respectively. In both sets of
concluding observations, those of 2003 and those of 2009, the Committee
acknowledged the progress achieved, but also noted remaining concerns and
shortcomings in the implementation of the Convention.
Japan is one
of 186 State Parties to the CEDAW Convention but it is not yet one of the 96
State Parties to the Optional Protocol to the Convention.
This Protocol, which has been ratified or acceded to by 96 States parties to
the Convention, provides the Committee with competence to consider complaints
from individuals or groups of individuals where certain preconditions are
fulfilled, most importantly where domestic remedies have been exhausted. It also allows the Committee to inquire
into reliable allegations of grave or systematic violations of the Convention.
To date, the Committee has considered over 14 communications and undertaken one
inquiry. Communications provide CEDAW with an opportunity to develop its
jurisprudence against the background of an individual factual situation, while
the inquiry competence allows it to craft recommendations to address grave or
systematic violations of women’s rights.
It is my understanding Working
Women’s Network is among those that strongly advocate Japans ratification of
the Optional Protocol to the Convention.
This is a very commendable goal and on this occasion I would like to
repeat the Committees recommendations from the last two sets of concluding
observations: The Committee encourages the State
party to continue to consider the ratification of the Optional Protocol to the
Convention.
The CEDAW Convention and
temporary special measures
The Convention on the Elimination of All Forms of Discrimination
against Women adopted more that 30 years ago has a central place for elimination
of discrimination against women and protection and promotion of human rights of
women and achievement of substantive equality between women and man.
The CEDAW Convention is a legally binding human rights treaty that
identifies legislative and other appropriate measures required to ensure
women's rights to equality and non-discrimination in the enjoyment of civil,
political, economic, social, and cultural rights. The Convention’s aim is the
elimination of all forms of discrimination against women resulting from the
activities or omissions on the part of States parties, their agents, or
committed by any persons or organization. Although the
CEDAW Convention is a gender specific instrument its goal is the recognition
and achievement of the de jure and de facto equality of women and men, which is
to be achieved by a policy of elimination of all forms of discrimination
against women. It protects women throughout their lifecycle and implicitly
includes girls. The Convention also provides for the accelerated advancement
of women by application of temporary special measures ( TSM) to accelerate
advancement in all areas covered by the Convention.
For better understanding of the TSM it is important to start
form the definition of discrimination against women as provided in the Article
1 of the Convention: “[...] 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.”
This definition includes both direct and indirect
discrimination against women, be it intentional or unintentional, in
respect of law or practice, in all aspects of public and private life. Direct
discrimination is intended to discriminate against women and constitutes
apparent exclusion, distinction or restriction of rights of women as compared
to men. Indirect discrimination occurs when apparently neutral legal standards
or policies which do not seek to discriminate lead to consequences that,
without justification, affect the enjoyment of rights by women
disproportionally, simply because they are women. The fact that the Convention addresses both direct and
indirect forms of discrimination against women makes it a unique instrument in
international law for the achievement of genuine (both formal and substantive)
equality between men and women.
The Convention in the Article 2
contains a primary requirement for States parties to “embody the principle of equality of men
and women in their national constitutions or other appropriate legislation” and
to ensure the practical realization of this principle.” This requirement of
practical realization of equality makes clear that the Convention envisages
substantive equality between women and men in the enjoyment of all human
rights. It also requires State parties to : 2 (e) to take all appropriate measure to eliminate discrimination against
women by any person, organization or enterprise.
Article 4.1 of the Convention provide a legal
ground for a adoption of temporary special measures:
1. Adoption by States Parties of temporary
special measures aimed at accelerating de facto equality between men and women
shall not be considered discrimination as defined in the present Convention,
but shall in no way entail as a consequence the maintenance of unequal or
separate standards; these measures shall be discontinued when the objectives of
equality of opportunity and treatment have been achieved.
TSM are those measures aimed at accelerating the achievement of de facto equality of men and women.
Various terms are used for
temporary special measures such as positive discrimination, positive
measures, affirmative action, positive action and inverse discrimination.
The
point of departure of Article 4.1 is the de facto inequality and the need for
the creation of de facto equality between men and women, which is the reason
for the introduction of the “temporary special measures” for the acceleration
of the de facto or real equality of men and women. Real or de facto inequality can be detected through
statistics and indicators about the political participation of women, education
employment, health or any
other field which are an indicator of real inequality and the need for the
acceleration of real equality. The
introduction of such measures puts women in a more favourable proposition which
to some extent places men in an adverse position, but only until the
achievement of the same level of de facto equality, or of the purpose, that is,
for which they are introduced, and hence they are not to be considered
discriminatory.
The
Committee, for the sake of explanations of the nature and purpose of temporary
special measures, adopted General Recommendation no. 25 concerning Article 4
Paragraph 1 at the July session in 2004.
The Committee advocates the use of the term of the Convention,
“temporary special measures”, which are temporary according to their purpose,
i.e., can last as long as equality endures. They must not lead to the maintenance
of separate unequal standards and should be stopped when equal opportunities
for and equal treatment of men and women have been achieved. They are special
in that they are related to a concrete objective, and the term measures relates
to various legislative and administrative instruments and programmes. The Committee recommends the states
parties to include provisions into their constitutions or laws provisions that
will enable the passing of temporary special measures. In its explanation of
the term real or de facto
equality, the Committee says that the Convention requires that women be given
the same starting position, but also that “through the provision of a favorable
environment they are enabled to achieve identical outcomes”. . An example of temporary special measures is the quota system
that some states incorporate into laws in order to ensure an increased
participation of women in politics, while others criticize these as
unconstitutional. For the latter, the Committee recommends putting into their
constitutions and laws the possibility of passing such measures, thus ruling
out any discriminatory nature in them. Those legal systems that allow for direct implementation
of Convention including Article 4 Paragraph 1 already have legal ground for the
introduction of these measures.
These measures should be applied to all
other areas in which there is de facto discrimination against women, that is to
all the substantive articles of the Convention including in the employment
field.
Article 11
1. States Parties shall take all appropriate measures to eliminate
discrimination against women in the field of employment in order to ensure, on
a basis of equality of men and women, the same rights, in particular:
(a) The right to work as an inalienable right of
all human beings;
(b) The right to the same employment opportunities,
including the application of the same criteria for selection in matters of
employment;
(c) The right to free choice of profession and
employment, the right to promotion, job security and all benefits and
conditions of service and the right to receive vocational training and
retraining, including apprenticeships, advanced vocational training and
recurrent training;
(d) The right to equal remuneration, including benefits,
and to equal treatment in respect of work of equal value, as well as equality
of treatment in the evaluation of the quality of work;
(e) The right to social security, particularly in
cases of retirement, unemployment, sickness, invalidity and old age and other
incapacity to work, as well as the right to paid leave;
(f) The right to protection of health and to safety
in working conditions, including the safeguarding of the function of
reproduction.
2. In order to prevent discrimination against women on the grounds of
marriage or maternity and to ensure their effective right to work, States
Parties shall take appropriate measures:
(a) To prohibit, subject to the imposition of
sanctions, dismissal on the grounds of pregnancy or of maternity leave and
discrimination in dismissals on the basis of marital status;
(b) To introduce maternity leave with pay or with
comparable social benefits without loss of former employment, seniority or
social allowances;
(c) To encourage the provision of the necessary
supporting social services to enable parents to combine family obligations with
work responsibilities and participation in public life, in particular through
promoting the establishment and development of a network of child-care
facilities;
(d) To provide special protection to women during
pregnancy in types of work proved to be harmful to them.
3.
Protective legislation relating to matters covered in this article shall be
reviewed periodically in the light of scientific and technological knowledge and
shall be revised, repealed or extended as necessary.
According to Article 11, States parties are
obliged to undertake “all appropriate measures” to eliminate discrimination
against women in the field of employment, that is to enable women to have equal
rights to work and being employed and the right to pay and benefits equal to
those of men for equal work in given workplaces, which is comparable, while the
right to equal treatment for work of equal value is much harder to compare. To clarify the latter right the
Committee adopted General Recommendation no. 13 in 1989, in which it proposes
to states parties that they should investigate and develop a manner of valuing
jobs in a gender-neutral way which will enable jobs of various kinds in which
it is mainly men that work and those in which women are mainly employed, in
order to determine as far as possible equal pay for work of equal value, and to
inform the Committee concerning this
Paragraph 2 of this Article relates to
preventing discrimination against women on the basis of marriage and maternity,
and they may not be dismissed purely because of pregnancy or maternity leave,
nor may they be discriminated against by being dismissed because of their
marital status. It is the obligation of the state to introduce paid maternity
benefit or similar benefits and to ensure women secure return to their earlier
job according to the same rank and welfare benefits. Although Article 11 (b) mentions paid maternity leave and
not parenting (parental) leave, which would refer to both parents, the
Committee extends this to the father of the child for the sake of encouraging
joint responsibility in the upbringing of children according to Article 5 of
the Convention. Numerous
states parties are introducing special leaves for fathers, but in practice very
few of them take advantage, so as not to reduce the family income, when they
are limited to a certain amount that does not keep up with the amount of
regular pay. Exceptionally, some
states have introduced a special leave for fathers only, and in Norway 80% of
fathers avail themselves of it.
The state is bound to set up a network of child
care establishments so that parents can adjust their familial obligations to
their work obligations and participation in public life and it is bound to
provide special protection for women during pregnancy from work in places that
are detrimental to them.
Committees
concluding observation for Japan and
TSM
When I joined
the Committee it examined fourth and fifth periodic reports of Japan
(CEDAW/C/JPN/4 and CEDAW/C/JPN/5) at its 617th and 618th meetings in July 2003
and adopted Concluding observations. Six year latter the Committee considered
the sixth periodic report of Japan (CEDAW/C/JPN/6) at its 890th and 891st
meetings in July 2009. (CEDAW/C/SR.890 and 891) and adopted Concluding
observations.
I vividly remember that on both
occasions in addition to the high level and very competent Governmental
delegation we had a large attendance of the national NGO representatives of Japan.
In fact I believe this may be one of the largest number of national NGO
representatives we had so far that attended the session of the Committee. They
presented their numerous shadow reports during the informal meeting of the
Committee with NGOs but also during an additional lunch time briefing by which
they contributed with their written and oral reports to the quality of
constructive dialoged with the governmental delegation. The Committee reflected on the good
cooperation between the Government and NGOs in both sets of concluding
observations.
If we now look at the specific concerns
and recommendation expressed by
the CEDAW Committee in 2003 and 2009 we can observe that the Committee in the
2003 Concluding observations commended Japan for the timely submission of its
Fourth and Fifth periodic reports while in the 2009 Concluding observations the
Committee noted that the Sixth periodic report was overdue. Additionally, the
Committees expressed its concern that its previous Concluding observations have
been insufficiently addressed.
It noted in particular, that those past
recommendations regarding the lack of a definition of discrimination in line
with the Convention, the discriminatory provisions in the Civil Code, the
visibility of the Convention, the situation
of women in the labour market and the wage discrimination women face and
the low representation of women in high-level elected bodies have not been
addressed and urged Japan to
address the previous recommendations that have not yet been implemented and to report
on their implementation in its next periodic report. As you can see if the
previous shortcomings are not sufficiently addressed they are becoming a part
of the present recommendations that require priority attention of the State Party.
In Concluding observations of 2009 the
Committee expressed its concern that the Convention has not been given central
importance as a binding human rights instrument and as a basis for the
elimination of all forms of discrimination against women and the advancement of
women in the State party. It also noted that article 98, paragraph 2, of the
Constitution of Japan stipulates that treaties that are ratified and
promulgated have legal effect as part of the State party’s internal law, but
expressed its concern that the provisions of the Convention are
non-self-executing and are not directly applicable in court proceedings. In its
recommendations the Committee urged Japan to:
In relation to concerns of the
Committee expressed in both 2003 and 2009 Concluding observation related to the
definition of discrimination in line with the Convention and its incorporation
in domestic legislation. The Committee called Japan to take urgent steps to
incorporate the Convention and the definition of discrimination against women,
as contained in article 1 of the Convention. It expressed its regret
that the Law on Securing of Equal Opportunity and Treatment between Men
and Women which was revised in
2006, did not incorporate such a definition but introduced a narrow definition
of indirect discrimination and recalled that the absence of a specific
provision with a definition of discrimination against women, encompassing both
direct and indirect discrimination in both the public and private spheres,
constitutes an impediment to the full application of the Convention.
Looking again at the fact that article
98, paragraph 2, of the Constitution of Japan stipulates that treaties that are
ratified and promulgated have legal effect as part of the State party’s
internal law, recommendation for a full incorporation of a Convention should be
carefully addressed primarily from the angle of giving the Convention
provisions full effect thought the implementing legislation including specific
legislation on the TSM.
Starting from 2008 and the introduction
of the Follow-up procedure two issues or two recommendations have been identified in each concluding
observation for immediate follow-up by the each State Party, with an interim
report on progress being required within one or two years. With respect to
Japan the Committee in its last Concluding observations of 2009 requested Japan to
provide, within two years, detailed written information on the implementation
of the recommendations contained in paragraphs 18 and 28 above.
Under paragraph 18 the Committee
selected for a follow-up its recommendation on the temporary special measures. It first expressed its concern that no
temporary special measures are in place to accelerate de facto equality between
men and women or to improve the enjoyment by women of their rights in Japan, in
particular with regard to women in the workplace and the participation of women
in political and public life. The Committee recommended to Japan to urgently adopt
temporary special measures in accordance with article 4, paragraph 1, of the
Convention and the Committee’s general recommendation No. 25, with a special
emphasis on the areas of employment of
women and participation of women in political and public life, including
women in academia, and with numerical
goals and timetables to increase representation of women in decision-making
positions at all levels
The Committee is also calling NGOs to
provide on a systematic basis information to the Committee in relation to the Committee’s
follow-up procedure and such information will be made public on the Committee’s
website. Since the Follow-up procedure is a procedure without constructive
dialogue the importance of additional information form other stakeholders is
even more important.
Hopefully, majority of the Committee’s
concerns will be timely and appropriately addressed by Japan. It seems that the
elaboration of the Third Basic Plan for Gender Equality is an excellent
opportunity for the Government to use the CEDAW Convention and its provisions,
including the Committee’s General Recommendations such as 25 on TSM as key tools to eliminate
discrimination against women and accelerate advancement of working women
in Japan. It would be important
that the Government addresses Committee’s Concluding observations with specific
legislative and other appropriate measures for their implementation, with
prioritization of the implementation of the Follow–up recommendations.
Results achieved, including the
ratification of the Optional protocol, would be reflected in the Japans next
periodic report and the Committee’s concluding observations, but more
importantly in everyday lives of women in Japan. Now, 25 years after the
ratification of the CEDAW Convention, working women in Japan rightfully expect
application of TSM that would accelerate achievement of de facto equality
between mean and women in the field of employment in line Japan’s commitments
under the Convention and the CEDAW Committees recommendation.
Thank you
2010.09.11 00:41
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