From September 4 to 15, 1995, the United Nations Fourth World Conference on Women was held in Beijing. The conference has achieved a most remarkable result that it has passed Beijing Declaration and Beijing Platform for Action. The former declares, “The rights of women are human rights”. ¹ The latter clearly identifies it as “a platform giving rights to women”. ²
 

The year of 2015 was the 70th anniversary year of establishment of the UN, and the 20th anniversary of the UN Fourth World Conference on Women’s Human Rights as well. While in September this year, in the United Nations World Summit on Sustainable Development held in New York, the headquarter of the UN passed the sustainable development agenda after 2015. This agenda set 17 sustainable development goals for 15 years in the future and the fifth was to “achieve gender equality and strengthen the powers of all women and female children”. Hence, in 2015, a significant year of the era with “Beijing+20”, it should be important to investigate the process and change of legal protection for women’s human rights, he influence of the Fourth World Conference on Women and other changes that follow for embracing the development and challenges in the future. 

 

I. The identification of women’s human rights as a legal concept
 

Today, women’s human rights are a crucial component of universal human rights, which has been commonly recognized in international society. However, in a very long time, women’s human rights were not included in the concept of universal human rights.
 

The United Nations has made consistent endeavors to promote recognizing women’s rights as human rights and include it into major human rights so as to make women’s human rights one important component of universal human rights.
 

Here, we must mention World Conference on Human Rights, which was held by the United Nations in Vienna in 1993 and passed Vienna Declaration and Program of Action through that conference. For the development of women’s human rights, the most important significance of this conference is in that for the first time in history, it clearly confirmed, in the form of international human rights document, that the rights of women are human rights. Vienna Declaration and Program of Action points out, “human rights of women and female children are inalienable and inseparable component of universal human rights…Women’s human rights should be human rights activities of the UN, and includes one component of the work of promoting all documents of women’s human rights”. ³
 

However, the development of “women’s human rights” since its emergence to a legal concept, or the adoption of women’s human rights into law has undergone a tough road, both in domestic law and international law.
 

Firstly, in domestic law, in 1945 when the Union Nations Charter was signed, women in only 30 nations can vote in their countries’ election like men among the 51 founding members of the United Nations. ⁴ The good news is that with the continually deepening of the influence of international human rights treaties on nations, the concept of universal human rights has been increasingly widely accepted and stipulated in the constitution of a country. So the situation has gradually changed: firstly, constitutions specify the prohibition of discrimination based on gender; secondly, provisions about the right to vote have been improved; thirdly, substantive provisions that stipulate women’s rights as in Convention on the Elimination of Discrimination against Women into constitutions.
 

Secondly, in international law, the 1945 Charter of the Union Nations signified that the international society has universally accepted the concept of human rights. As an international law document, Paragraph 3, Article 1of the Union Nations Charter declares that one of the purposes of the United Nations is, “to achieve international cooperation in solving international problems of economic, social, cultural or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion”. However, due to the programmatic feature of the UN Charter, it lacks words like women’s human rights. Despite this, provisions about human rights in the UN Charter have demonstrated the development of women’s human rights in international laws. Undoubtedly, the UN Charter has not only laid a solid law foundation for the construction of international human rights treaties system under the framework of the UN, but also provided legal basis for promoting the cause of women’s human rights.
 

After the UN Charter, the United Nations has adopted “International Bill of Human Rights” as Universal Declaration on Human Rights, International Convention on Civil and Political Rights, and International Convention on Economic, Social and Cultural Rights, all of which emphases everyone is qualified to enjoy the rights and freedom set in declarations or conventions without prohibitions based on sex. Rights in Universal Declaration on Human Rights and the other two conventions are all defined as for “everyone” (that is all human beings, or every human being, or everyone), and mot just for men. Besides, other conventions as the UN core international human rights conventions all adopt the words of “everyone”.
 

Though the acknowledge and protection of women’s rights has not been at a unified level no matter in domestic or international laws, currently, on the whole, protecting women’s human rights has become a consensus in both international law and domestic law.

 

II. International human rights treaties and protection for women’s human rights
 

International human rights treaties have become important international law norms for protecting women’s human rights due to its legally binding force and supervision mechanism established under it. After World War II, the UN and its specialized bodies have passed hundreds of universal human rights documents, including dozens of international human rights treaties. ⁵ Among all international human rights conventions, the most important universal human rights conventions are International Convention on Civil and Political Rights, and International Convention on Economic, Social and Cultural Rights; ⁶ and the most comprehensive convention concerning protecting women’s human rights is the Convention on the Elimination of Discrimination against Women, so their contents about protecting women’s human rights will be analyzed in particular. 

 

1. Universal human rights conventions and protection for women’s human rights
 

For the development of legal protection for women’s human rights, Universal Declaration on Human Rights as a universal international human rights document, is undoubtedly the cornerstone of legal regulations of the UN concerning protecting women’s human rights. Universal Declaration on Human Rights passed on December 10, 1948 declares: “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” The Declaration stated two human rights that shall be protected: civil rights and political rights, besides economic, social and cultural rights. Though without legally binding force, the Declaration has set universal standard for human rights, a basis for other international human rights conventions and even basis for other nations’ domestic law. Thus, until now, Universal Declaration on Human Rights has actually become a customary international law.
 

International Convention on Civil and Political Rights and International Convention on Economic, Social and Cultural Rights both passed by the UN on December 16, 1996 are the core of “international human rights charter”, and vital and legally binding universal international human rights convention for protecting women’s human rights. Article 2 in International Convention on Civil and Political Rights promulgates: “Each state party to the present Convention undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Convention, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” And the same goes with Article 2 in International Convention on Economic, Social and Cultural Rights.Though the above-mentioned two conventions on human rights fail to define “distinction”, Article 2 in the two conventions has defined the non-discrimination principle as the fundamental principle for international human rights laws, which means that all individuals are equally entitled to the rights set in conventions. Meanwhile, the two conventions on human rights stipulate that the subjects of rights are “all individuals” or “everyone”. And since the most common distinction is gender distinction (mainly on women), so the two conventions on human rights require, in Article 3, that parties to the convention undertake to insure that men and women are entitled with the same and equal rights recognized in the convention. This provision in fact emphases the principle of equality between men and women.
 

Besides, implementation mechanisms established under International Convention on Civil Political Rights, International Convention on Economic, Social and Cultural Rights and Optional Protocol to the International Convention on Economic, Social and Cultural Rights, are playing a vital role in supervising the implementation of relevant conventions. And it has no doubt that such kind of mechanism is a legal barrier not to be neglected in protecting women’s human rights from being violated.

 

2. Convention on the Elimination of Discrimination against Women
 

The UN Convention on the Elimination of Discrimination against Women (CEDAW), passed on December 18, 1979 and coming into effect in September 3, 1982, is a comprehensive convention on protecting women’s human rights. As an important component of the UN conventions system on human rights, CEDAW has developed into a universally accepted, legally binding international human rights legal document. CEDAW not only “stipulates legally binding force of women’s rights principle recognized by international society and for all women”,⁷ but also stipulates ,
 

China signed Convention on the Elimination of Discrimination against Women on July 17, 1980 and delivered the instrument of ratification on November 4 of the same year. On December 4, the Convention took effect on China. ⁸ As a state party, China shall bear and undertake obligations under this Convention. On the one side, China shall follow the standards established in the Convention in its domestic legislation; and on the other side, China shall deliver its national report in accordance with of the duty under the Convention. And here we will mainly discuss issues delivered in national reports, and domestic legislation will be discussed later in this paper.
 

During the period of more than twenty years since 1995, China has delivered to the Committee on the Elimination of Discrimination against Women its national report on the Convention on the Elimination of Discrimination against Women for four times. The last time was in January, 2012, when China delivered to the Committee its seventh and eighth co-regular report. On March 10, 2014, with regard to this report, the Committee brought relevant list of issues and problem to China, including the implementation details of Articles 1 to 16 of the Convention. ⁹ China replied to the list form the Committee on August 15, 2014. ¹⁰ On November 14, 2014, the Committee delivered Concluding Observation on China’s Seventh and Eighth Co-Regular Report, which confirmed China’s positive achievement in legislation and approval of international documents, and meanwhile pointed out the fields of concern and advices from the committee. The Committee’s fields of concern includes: The Convention can not be directly applied in domestic courts of state parties, so domestic courts haven’t directly cited or applied provisions of the Convention; and in accordance with Article 1 of the Convention, comprehensive definitions about distinction on women shall be adopted in state parties’ legislation, so as to make sure women will not receive direct or indirect distinction in each field of their life. ¹¹ China will “take necessary actions to implement the current concluding observations during the current report term and the next as regulated by the Convention.” ¹² This is also the follow-up actions that China will take.

 

III. China’s domestic legislation on protecting women’s human rights
 

Usually, the first line of defense of protecting women is domestic protection for women’s human rights. ¹³ In other words, the domestic law is the most effective and major ways of implementing international human rights treaties, and thus protecting women’s human rights. Up until now, China has approved 28 international human rights conventions. ¹⁴ Afterwards, the Chinese government kept its commitments and took legislative steps to realize women’s human rights and remove distinction. Regarding to the significance and influence of the UN Fourth World Conference on Women on China, it is not to be neglected when analyzing and discussing the protection of Chinese law on women’s human rights and its changes.
 

After the UN Fourth World Conference in Women was held in Beijing in 1995, no matter as words or concepts, expressions like “gender”, “gender equality” and “gender mainstreaming” have been used increasingly more frequently, and in increasingly wider fields. Up until now, they have been adopted, at least in the 12 fields of concern as listed in Beijing Platform for Action.
 

That is to say, in theses 12 fields of concern, the concept of gender equality is come up with, or actions to promote gender mainstreaming are on process or have been on the road. In fact, these concepts have already been adopted by China’s law field. And as they are gradually recognized and accepted by China’s law field, China’s laws have been changed more or less.
 

Here in this article, development and changes of China’s legal protection for women’s human rights will be elaborated from the perspective of gender through comparison among a few of laws directly related to gender equality enacted before and after 1995.
 

1. The Legislation before 1995
 

Chinese government has taken positive legislative measures to establish and implement the principle of gender equality since 1949. Until 1995 when the fourth United Nations World Conference on Women was held, China has formed a legal system of protecting the gender equality, which bases on the Constitution, takes the Marriage Law and The Law of Protection of Women's Rights and Interests as the main body, and includes specific laws and regulations.
 

(1) The Constitution. China has enacted four constitutions since 1949, and they are Constitution of 1954, 1975, 1978, and 1982. All of those provide for the fundamental rights of citizens, and determine the principle of gender equality. The Constitution of 1982 is the current one. It has been revised in 1988, 1993, 1999 and 2004 hitherto. In terms of the number and main types of constitutional rights, the Constitution of 1982 provides for 29 rights and 23 types, which has expanded considerably compared with the Constitution of 1954, 1975, and 1978. ¹⁵Undoubtedly, the fundamental rights of citizens provided by the Constitution of 1982 build the foundation of the Constitution and legal rights that Chinese citizens shall enjoy. Every time the Constitution of 1982 is revised hereafter, the content of the fundamental rights of citizens expands. This not only means the constitutional protection of basic citizen rights steps forward, but also shows our progress in the concept of rights. However, in terms of the protection of gender equality and the concept of human rights, the Constitution revised in 2004 breaks through most. In this regard, it will be discussed later.
 

(2) The Marriage Law of the People’s Republic of China Marriage Law promulgated in 1950 is the first one of its kind after the CPC took in power in China. The law, abandoning feudal marriages, stipulated that women enjoy equal rights with men in marriage and family. Based on this law, the amended Marriage Law was adopted at the 3^rd Session of the Fifth National People’s Congress on September 10, 1980. The law defines clearly the equality of between man and woman and equal status of husband and wife in the family.
 

(3) Law of the People's Republic of China on the Protection of Rights and Interests of Women Adopted at the Fifth Session of the Seventh National People's Congress on April 3，1992, this law is the first of its kind aimed at protecting rights and interests of women in China.The fundamental of this law is that equality of man and woman, special protection of women, prohibition of discrimination against, maltreatment of and cruel treatment of women. This law also contents substantial rights confirmed by Convention on the Elimination of Discrimination against Wome, CEDAW. It provides for the protection of political rights, cultural education rights, working, assets, human body and marriage and family rights of women. 
 

However, because of limits of the point of perspective or views, these laws are still limited in contents, more or less because of social gender or blind spots, although they specify the protection of equity between men and women.
  

2. Legislation and Amendments of relevant laws after 1995
 

After 1995, China has witnessed great changes in politics, economy, culture, society and marriage and family, coupled with influences of the Fourth World Women Congress held in China as well as liabilities of international conventions ratified by China. In order to adapt to these changes and improve the protection of rights and interests of women, China’s legislature launched to amend laws or encode new ones. It is apparent that point-of-perspective of social gender have clearly been taken into considerations in the amended and newly legislated laws. 
 

(1) Amending Constitution. With supreme legal effects over all law-making procedures, the Constitution plays an essential role in the protection of human rights in China. Following a long-term development, the Second Session of the Tenth National People’s Congress passed the Amendment of the Constitution of the People’s Republic of China on March 14, 2004. The amended constitution made a breakthrough in enclosing human rights therein. ¹⁶ Article 33 of this new constitution provides: “the State respects and protects human rights”. Although the new constitution does not define the human right, it shall be understood that the human right here has common senses defined by international right convention and applied to each person’s rights inhabited within contracting states, or else this amendment has not any significance at all. ¹⁷ It is understood that human rights written in the Constitution not only intensifies the role of the Constitution in protection of human rights but also, concretely speaking, confirms women as holder of human rights as well as the protection of human rights of women. 
 

(2) Amending the Law of the People's Republic of China on the Protection of Rights and Interests of Women. To meet new changes, this law processed amendments in accordance with the Decision of Amending Law of the People's Republic of China on the Protection of Rights and Interests of Women adopted at the Seventeenth Session of the Standing Committee of the Tenth National People’s Congress on August 28, 2005. Compared with the original one, the law changes as follows: 1) Men and women are born equal. Article 2 reads: “Women shall enjoy equal rights with men, this is our basic policy”. This provision will facilitate the enforcement of equity between men and women, serving a strategic response to “mainstream of social genders” proposed by UN. 2) Principle of anti-discrimination. Also the second article provides: “the state adopts necessary measures to perfect regulations on protection of rights and interests of women, eliminate all forms of discrimination against women”. Although the law does not define “discrimination against women”, we can conceive that this provision is intended to couple with relevant stipulations by Convention on the Elimination of Discrimination against Women. It is understood that it is a progress compared with the original edition. 3) Bringing women development program into plan of national economy and social development. Article 3 reads: “The State Council proposes Women Development Program of China and brings it into the Plan of national economy and social development. Local governments above county level formulate women development plan executed in their administrative regions and connected to plan of national economy and social development”. This provides economic safeguard for human rights of women.  4) Clear ban of sexual harassment. Article 40 provides: “Sexual harassment to women is forbidden. The injured women have the right of complaint against work units and authorities concerned.”
 

(3) Amending Marriage Law. This law was amended in accordance with Decisions Regarding the Amendment (of Marriage Law of the People's Republic of China) passed at the 21st Session of the Standing Committee of the Ninth National People's Congress on April 28, 2001. The amended law reiterates the implementation of equity between men and women and clearly provides “The lawful rights and interests of women, children and old people shall be protected” (Article 2).
 

Moreover, special attention shall be made that the amended Marriage Law provides “ban of domestic violence” (Article 2) for the first time and takes “domestic violence” as a reason of permitting divorce (Article 32). The provision against domestic violence demonstrates changes of legislators in mind, i.e. domestic violence is no longer a matter of private affairs but one of public affairs. This transformation embodies a kind of point-of-perspective of social gender, i.e. discrimination against women restricts human rights of women.   
 

(4) Enacting Labor Contract Law. On June 29, 2007, the 28th meeting of the Standing Committee of the Tenth National People’s Congress enacted Labor Contract Law. The 42nd Article provides that the employer shall not dissolve contracts with women who are the period of pregnancy, obstetrics, nursing. 
 

(5) Enacting Promotion Employment Law. On August 30, 2007, the 29th meeting of the Standing Committee of the Tenth NPC passed Promotion Employment Law Sub-paragraph 1 of Article 3 provides that: “Workers enjoy the right to employment on an equal footing and to choice of job on their own initiative in accordance with law”, whilst Article 2 reads: In seeking employment, workers shall not subject to discrimination because of their ethnic backgrounds, races, gender and religious beliefs, etc. The 27th article provides:” the State guarantees that women enjoy equal right to work as men” (Sub-paragraph 1). When a unit recruits persons, it shall not refuse to employ women or raise recruitment standards for females by using gender as an excuse, except where the types of work or posts are not suitable for women as prescribed by the State. (Sub-paragraph 2)

When an employing unit recruits’ female workers, it shall not have such provisions as restrict female workers from getting married or bearing a child included in the labor contract (Sub-paragraph 3). All are safeguards for female employment.
 

(6) Enacting Social Insurance Law of the People’s Republic of China. The 17th meeting of the Standing Committee of the 11th NPC adopted the Social Insurance Law of the People’s Republic of China on October 28, 2010, which came into force as of July 1, 2011.The sixth chapter gave provision of “Maternity Insurance” system. Articles 53 and 54 prescribe that employees shall participate in maternity insurance, the premiums of which shall be paid by employers in accordance with the State regulations, and employees shall not pay the same. The maternity insurance enjoyed by employees shall include medical costs for maternity and maternity allowance, and the unemployed spouses of employees shall have their medical maternity expenses. It can be safely said that the present Social Insurance Law guarantees rights of women under maternity condition to get material help from the State and society. 
 

(7) Amending The Electoral Law of National People's Congress and Local People's Congresses at All Levels.In accordance with the decision by The National People's Congress Standing Committee on the Amendments of "People's Republic of China National People's Congress and local people's congresses at all levels of the electoral law," the decision of 1oth meeting of October 27, 2004, the fourth amendment of electoral law is passed. Article 6 prescribes that of the National People's Congress and local levels on behalf of the People's Congress should be an adequate number of women representatives, and gradually increase the proportion of women representatives. Although it does not stipulate a concrete ratio of women representatives, adequate number is promulgated. Afterwards, the two amendments of 2010 and 2015 of the electoral law all clearly prescribe that a broad representative shall include adequate women and a gradual increase.
 

(8) Amending the Organic Law of the Villagers Committees.On October 28, the Standing Committee of the Eleventh National People's Congress of the People's Republic of China at its 17^th Meeting passed the Organic Law of the Villagers Committees of the People's Republic of China. Article 6 reads: “the villagers’ committee comprises 3-7 members including director, vice-director and member(s); of members shall include woman”. It does not prescribe concrete ratio of woman members; it can be seen from shall include expressions that rural women apparently take part in political affairs. 
 

In fact, legislation is not limited to these changes. In August, 2015, the 12th NPC at its 16th meeting heard for the first time the Law of the People’s Republic of China on Anti-Domestic Violence (draft). The amendment IX of the Criminal Code of PRC passed in the same month of 2015 eliminated Article 360 sub-paragraph 2 “Crime of whoring a girl”. These changes or reforms are pushed forward by the Fourth World Women Congress and more important, demonstrate that the Chinese legal field has to some degree acknowledged and received the point of view of social gender.
 

In retrospect, the 70 years after the founding of the UN, it is well received that the international human rights law was initiated and the domestic human law of women was perfected. The Fourth World Conference on Women is beyond doubt an important landmark in developing and reforming human rights laws of women internationally or domestically. Up to now, many international and domestic lawful regulations, which are multiple and complementary each other, have come into force to put human rights of women under dual protection of international human rights conventions and domestic laws.  
 

Some are still not denied that the protection of human rights of women remains shortages or defects. As far as international human rights conventions are concerned, on one hand, conventions themselves have restrictions, such as poor systematic power of convention and limited functions of monitoring organs; on the other hand, the member states of international human rights convention do not fully performed due to subjective or objective reasons. As far as domestic legislation is concerned, each country needs to further improve their laws tosome degree. Taking China forexample, to define discrimination, principles on relationship between international and domestic laws in constitution to solve domestic applying basis of international convention, this is a problem urgent for us to solve.   
 

On September 25, 2015, the UN Sustainable Development Summit adopted the fruit document of “Changing our world: Sustainable Development Agenda in 2030”. ¹⁸ This new agenda stresses that it respects the goals and guidelines of the UN Charter, international laws and relies on World Human Rights Declaration, international human rights conventions, Millennium Goals Declaration and World Heads Meeting documents, as well as other development rights declarations. The agenda demonstrates that its prospect aims to establish a world respecting human rights and human dignity, legal rules, integrity, equity and non-discrimination, in which each woman and girl can enjoy full gender equity and all lawful, social and economic setbacks hindering such enjoyment of rights are eliminated. It is obvious the direction of the protection of rights and interests of women set for international human rights conventions and domestic legislation.    

 

* ZHU XIaoqing(朱晓青)，Research fellow of Institute of International Law, Chinese Academy of Social Sciences.
 

1. Article 14, Beijing Declaration.
 

2. Paragraph 1, Beijing Platform for Action.
 

3. Paragraph 18, part 1 of Vienna Declaration and Programme of Action.
 

4. United Nations Department of Public Information editing: United Nations Handbook (the 10th edition), China Translation and Publishing Corporation, 1987, at 246.
 

5. Universal human rights documents listed by the United Nations High Commissioner for Human Rights include not only International Bill of Human Rights and core human rights treaties, but also other universal human rights document. Referred to the website of United Nations High Commissioner for Human Rights.
 

6. As of March 30, 2015, International Convention on Civil and Political Rights has 168 contracting states; and International Convention on Economic, Social and Cultural Rights has 164 contracting states. All from the United Nations website.
 

7. The UN High Commissioner for Human Rights: Fact Sheet No. 22: Discrimination Against Women: the Convention and the Committee, published by the United Nations in 2001, at 2.
 

8. China Government only reserved on Paragraph 1, Article 29 of Convention on the Elimination of Discrimination against Women, that is the provisions concerning any dispute and solution among state parties about explanation and adoption of the Convention.
 

9. CEDAW/C/CHN/Q/7-8.
 

10. CEDAW/C/CHN/Q/7-8/Add.1.
 

11. CEDAW/C/CHN/CO/7-8.
 

12. CEDAW/C/CHN/CO/7-8.
 

13. Rebecca J. Cook, “Women’s International Human Rights Law: The Way Forward”, in Rebecca J. Cook ed., Human Rights of Women: National and International Perspectives, University of Pennsylvania Press, 1994, at 28. Also referred to Women’s Human Rights—National and International Perspectives, translated by Huang Lie, China Social Science Press, 2001, at 29.
 

14. According to the Ministry of Foreign Affairs, the international human rights conventions approved by China include: the four Geneva Convention in 1949 and 2 additional protocols in 1977; the UN’s 16 conventions on human rights and relevant optional protocols; International Labor Organization 6 conventions on human rights. Materials are from website of the Ministry of Foreign Affairs.
 

15. According to analysis, the Constitution of 1954 provides 23 fundamental rights of citizen and 15 types of constitutional subject of rights; the Constitution of 1975 provides 20 fundamental rights of citizen and 15 types of constitutional subject of rights; the Constitution of 1978 provides 20 fundamental rights of citizens and 15 types of constitutional subject of rights. See also: Mo Jihong etc.: The New Development of Law of Human Rights, China Social Sciences Press, 2008, at 180.
 

16. About the historical evolution of the Protection of human rights in the Chinese constitutional system, see also Mo Jihong, Conventions on Human Rights and China,World Knowledge Press, 2005, at 127-204.
 

17. See also Mo Jihong etc., The New Development of Law of Human Rights, China Social Sciences Press, 2008, at 178-180.
 

18. About Changing Our World: Agenda for Sustainable Development in 2030 (A / 69 / L.85), available at the website of the Office of the UN High Commissioner for Human Rights.