Abstract: Aimed at eliminating all forms discrimination against women, ensuring human rights and fundamental freedoms for women in all fields and realizing de-facto equality between men and women, the Convention on the Elimination of All Forms of Discrimination Against Women adopted by the U.N. General Assembly is a most significant and most comprehensive legal document concerning the protection of human rights of women, which is called “The Charter of the Human Rights of Women.” This thesis reviews the achievements and problems in the fulfillment by the Chinese government of obligations under the Convention after signing and ratifying it; and also puts forward some feasible approaches for improvement thereof.

 

Key Words: Rights for Women; The Convention on the Elimination of All Forms of Discrimination Against Women; Human Rights; Warranty Obligations

 

Women who account for half the human population are an important driving force for social development. Like men, women ought to enjoy the basic dignity as human beings. It is a consensus of modern society that women and men share equal human rights and fundamental freedoms. However, in the past over 300 years during which human rights came into being and developed, Western countries, for a very long period of time therein, virtually excluded women from the subject of human rights. In that period of time, human rights did not include those of women and women were not entitled to enjoy human rights including political rights and civil rights; and in almost all social fields, women received unequal treatment both legally and in reality. It was a common phenomenon that women – accounting for half of the total population – were subject to discrimination in both Western and Eastern countries, though the causes therefor and consequences thereof were different to varying extents. It was not until the end of World War II that, within the context of increasing demand for protecting human rights, the protection of women’s rights began to attract the attention of the international community, and actions for establishing treaties to promote equality between men and women and eliminate discrimination against women were taken one after another. The United Nations has attached great importance to the human rights of women since it was founded, taking promotion of equality between men and women as its basic principle and aim, and formulating a series of conventions, declarations and proposals to urge all countries to protect women’s rights and eliminate discrimination against women, among which the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), known as the Charter of the Human Rights of Women, is the most important and comprehensive one, signifying a peak in legislation in the field of international protection of women’s human rights.¹

 

CEDAW has been widely acknowledged by the international community. By 2014 – the 35th anniversary year of the birth of CEDAW, the number of state parties to the convention had reached 188.² As an extension to the convention, the Optional Protocol to the Convention on the Elimination of all Forms of Discrimination Against Women was open to the contracting states to sign on the International Human Rights Day (December 10), 1999. By December 2014, 105 nations had signed the Optional Protocol to the Convention on the Elimination of all Forms of Discrimination against Women.³

 

 

 

CEDAW comprises a preamble and 30 articles in six parts. The Introduction reaffirms faith in fundamental human rights, in the dignity and worth of the human person, and in the equal rights of men and women, as is laid out in the Charter of the United Nations and the principle of the inadmissibility of discrimination emphasized in the Universal Declaration of Human Rights. Since "extensive discrimination against women continues to exist", the Convention requires all States Parties to “adopt the measures required for the elimination of such discrimination in all its forms and manifestations”. Part I, II, III and IV (Articles 1-16) are the essential content of CEDAW, specifically and comprehensively defining all measures to eliminate prejudice against women and prescribing the equality of women and men in political, social, economic and cultural fields as well as in citizenship, marriage, family, etc., mainly from the perspective of warranty obligations of State Parties thereto. CEDAW provides for total ban on discrimination against women and requires total equality between men and women, which involves equality of rights thereof in all fields. It also spells out the necessary approaches, measures and methods for realizing equality between men and women and the principle of inadmissibility of discrimination as well as the obligations assumable by States Parties, etc. Part V (Articles 17-22) is about enforcement of the Convention, including establishment of the Committee on the Elimination of Discrimination against Women, its functions in supervising the implementation of the Convention through examining the reports submitted by States Parties, the rules for the system of reporting by States Parties, the procedure for review thereof, etc. Part VI (Articles 23-30) concerns the signing, ratification, revision, entry into effect, reservation and interpretation of the Convention.

 

 

CEDAW is the most important legal document about the protection of women’s rights adopted by the United Nations. Kofi Annan said it stands out as a landmark of international legislation in gender equality in the 20th century, a code of human rights for women and a central pillar of International Human Rights Law.⁴ Its significance as a landmark is reflected in the following respects:

 

 

In comparison with comprehensive human rights conventions with extensiveness and lack of pertinence of their focus areas and limitedness of international conventions that protect women’s rights in particular fields, , CEDAW is a charter concerning the protection of women’s rights in all fields. First of all, it provides for women’s broadest rights. It forbids discrimination against women in every field, specifying women’s equal rights with men in all fields including politics, economy, society, culture, medical care and family life. Secondly, it comprehensively prescribes the obligations and responsibilities of the State to secure implementation of the convention. A prominent feature of CEDAW is that it not only comprehensively prescribes women’s rights, but also, more significantly, spells out the obligations and responsibilities of States Parties in terms of implementation of the Convention. Moreover, in contrast with the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights that focus only on the infringement of human rights in public life, CEDAW not only requires States Parties to adopt all appropriate measures to regulate the act of the State and ensure the equal rights of men and women, but also requires all countries to take necessary measures to eliminate prejudice against women by individuals and in marriage and family, extending responsibility of the State to cover private life, which is doubtlessly a major breakthrough. 

 

 

One of the important features of CEDAW is to go beyond equality in form and take the equality of opportunities and results as its aim, making it clear that besides the equality before the law, equality in fact should also be realized. As mentioned in previous passages, Article 4 of the Convention provides that where that the “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”, which means that the Convention allows States Parties to take temporary special measures, such as positive acts, preferential treatment or quota systems, to promote actual equality between men and women in education, economy, politics and employment. Article 5 requires that States Parties shall take temporary special measures to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices 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. Without any doubt, CEDAW has taken yet another giant step in protecting equal rights for women in comparison with previous conventions on human rights, which is intended to realize equality in fact between men and women. 

 

 

The plural implementation mechanism made up of procedures for report, appeal and investigation put the implementation of CEDAW in the States Parties under the supervision of the Committee on the Elimination of Discrimination Against Women, which can provide relief afterwards for women whose rights have been infringed upon by a State Party and endows the Convention with very strong implementation capacity.

 

 

China is one of the first States Parties that signed CEDAW in 1980. On July 17, 1980, China acceded to the Convention, which was approved of by the 16th Session of the 5th Standing Committee of the National People's Congress on September 29, 1980 to make it effective in China. On November 4, 1980, the instrument of ratification by China was submitted and deposited. China made a reservation toward Provision 1 in Article 29 at the time of the accession to the Convention. This provision stipulates, “Any dispute between two or more States Parties concerning the interpretation or application of the present Convention which is not settled by negotiation shall, at the request of one of them, be submitted to arbitration. If within six months from the date of the request for arbitration the parties are unable to agree on the organization of the arbitration, any one of those parties may refer the dispute to the International Court of Justice by request in conformity with the Statute of the Court.” In keeping with China’s consistent position of rejecting compulsory jurisdiction of the International Court of Justice, China declared when signing the Convention that it would not be bound by this provision, which was affirmed by Standing Committee of the National People's Congress. This reservation, however, does not impact China’s fulfillment of the substantive provisions of CEDAW. Besides, China has not ratified or acceded to the Optional Protocol to the Convention on the Elimination of all Forms of Discrimination against Women. Therefore, neither the appeal procedures nor the inquiry procedures apply to China. So far, China has, in accordance with the provisions of CEDAW and the requirement of Committee on the Elimination of Discrimination against Women (hereinafter referred to as the Committee), submitted eight reports and taken five deliberations thereof. In accordance with requirement of CEDAW, China submitted to the United Nations its first national report on the implementation of the Convention in May 1982, which was deliberated by the Committee in 1984; the second national report was submitted in June, 1989, and was deliberated by the Committee in 1992; the third and the fourth consolidated national reports were submitted in May 1997; the supplementary report to the third and the fourth consolidated national report and the first report of the Hong Kong Special Administrative Region were submitted in 1998, and were deliberated by the Committee in 1999; the fifth and sixth consolidated national reports, including the second report of the Hong Kong Special Administrative Region and the first report of the Macau Special Administrative Region, were submitted in August 2003, , and were deliberated by the Committee in August 2006; and, the seventh and eighth consolidated national reports, including those of the Hong Kong Special Administrative Region and the Macau Special Administrative Region, were submitted in 2012, , and were deliberated by the Committee on October 23, 2014.⁵ The Committee appreciated the seventh and eighth consolidated regular reports submitted by the Chinese government for their conformity with the spirit and principles of the Convention.⁶ The Committee required China to submit the ninth regular report in November 2018.⁷

 

 

China, through legislation, actively fulfills the international obligations of protecting women’s rights. So far, there has formed in China a complete legal system to protect the human rights of women and promote equality between men and women with the Constitution as the basis and with Law of the People's Republic of China on the Protection of Rights and Interests of Women as the core, including over 10 laws and relevant judicial interpretations, more than 40 sets of administrative regulations and over 80 sets of local regulations, such as the Marriage Law, the Electoral Law, the Criminal Law, the General Principles of the Civil Law, the Law of Succession, the Labor Law, the Law on Population and Family Planning,  the Law of the People's Republic of China on the Contracting of Rural Land and the Law of the People's Republic of China on Maternal and Infant Health Care.⁸

 

The Constitution, laws, administrative regulations etc. of China all embody the human rights principle of eliminating discrimination against women and equality between men and women. First, there is the constitutional principle of equality between men and women. Article 48 of the Constitution of the People’s Republic of China provides: “Women in the People's Republic of China enjoy equal rights with men in all spheres of life, in political, economic, cultural, social and family life. The State protects the rights and interests of women, applies the principle of equal pay for equal work to men and women alike and trains and selects cadres from among women.” Second, the principle of equality laid down in the Constitution of the People’s Republic of China is materialized in many laws, such as the Law of the People's Republic of China on the Protection of Rights and Interests of Women, the Marriage Law, the Electoral Law, the Law of Succession and Labor Law.

 

 

The relevant legislation of China covers the forms of rights of women as stipulated in CEDAW. As the central legislation to protect women’s rights, the Law of the People's Republic of China on the Protection of Rights and Interests of Women (revised in 2005) provides for more powerful legal support for all-round protection of the rights and interests of women. Article 2 of the “General Provisions” of the law provides, “Women shall enjoy equal rights with men in all aspects of political，economic，cultural，social and family life. It is a basic State policy to realize equality between men and women. The State shall take necessary measures to gradually improve various systems for the protection of the rights and interests of women and to eliminate all kinds of discrimination against women. The State shall protect the special rights and interests enjoyed by women according to law. It is prohibited to discriminate against, ill-treat, abandon or cruelly injure or kill the women.” It was the first time for Chinese law to specify the basic State policy of “equality between men and women”. What is particularly important is that this law provides for comprehensive and more pertinent protection of women’s political rights, cultural and educational rights and interests, labor and social security rights and interests, property rights and interests, personal rights, marriage and family rights and interests, etc, and further strengthens legal responsibilities therefor, which is in relatively comprehensive fulfillment of the obligations prescribed by CEDAW.

 

With the perfection of and effective implementation of the relevant laws, women in China enjoy, on an equal footing with men, political rights, cultural and educational rights, labor rights, property rights, personal rights, marriage and family rights, etc. 

 

 

In accordance with the aforesaid laws and regulations, special rights and interests enjoyable by women in China, firstly, include the special rights enjoyable due to physiological characteristics, such as preferential treatment receivable during the menstrual period, pregnancy, the obstetrical period and the nursing period, the special protection receivable by women with regard to types of work assignment, allowance for women who have lost the child-bearing capacity as a result of receiving the sterilization operation in terms of child-rearing, and preferential treatment in health protection with respect to birth control. And secondly, the law also provides for special rights enjoyable in realization of equality in fact. Such special rights have been established to compensate for disadvantages caused to women as a result of historical or realistic conditions and to ensure enjoyment of equal rights with men in reality, specifically including the quota system in election, priority to stand for election and preference in the fostering and selective promotion of female candidates as cadres, entitlement of female adolescents to preferential treatment and priority in divisions of property at the time of divorce. 

 

 

Since 2006, China has kept improving the relevant laws, policies, schemes, etc and expanding women’s rights and the means of protection of thereof to eliminate discrimination against women, promote the equality between men and women and fulfill the obligations prescribed by CEDAW. Since 2006, China has enacted or revised more than 10 laws and sets of regulations concerning the protection of women’s rights and interests, and 31 provinces, autonomous regions and municipalities directly under the Central Government have enacted or revised measures for implementing the Law of the People's Republic of China on the Protection of Rights and Interests of Women.⁹ Revisions of legislations thereon include the provisions for maternity insurance in the Social Insurance Law and those for gender equality and protection of women’s rights and interests in the Labor Contract Law and the Law of the People's Republic of China on Promotion of Employment. The Law on the Organization of Villagers Committees revised in 2010 provides for more sufficient protection of women’s autonomous rights, continuing to require that there be female members in villagers’ committees and adding the compulsory rule that “female representatives should account for at least 1/3 of the meeting of villagers’ representatives”. In particular, the Anti-Domestic Violence Law, which was passed on December 27, 2015 at the 18th meeting of the 12th National People's Congress Standing Committee, and which came into force on March 1, 2016, provides, “The organs in charge of women and children’s affairs of the People’s Governments at or above the county level should organize, coordinate, guide, supervise and urge concerned departments in doing a good job of anti-domestic violence,” and “Women shall be under special protection during pregnancy and the nursing period,” preventing domestic violence against women and marking an expansion of the protection of women’s rights.

 

With regard to trafficking in women and forcing women into prostitution, the Chinese government has formulated the Program of Action against Human Trafficking (20132020.) Besides, the National Program of Action for Human Rights (2012-2015) points out that the country will gradually increase the rate of women in the deputies to the National People's Congress and local people's congresses at various levels and the Chinese People's Political Consultative Conference; that there shall be more than one female among the leading members of the People’s Congress, the government and the Chinese People's Political Consultative Conference at provincial and municipal levels and among the leading members of the government at county level; that the proportion of women on the principal leading posts in the local governments and working units at or above the county (or division) level shall be raised gradually; that the proportion of women among Board of Directors members, Board of Supervisors members and in the management of enterprises shall be raised gradually; that the proportion of female deputies to the Workers’ Congress and the Faculty Congress shall be gradually raised; and that there shall be a certain proportion of women in Villagers’ Committees and Neighborhood Associations. The Outline of the Program for the Development of Women in China (20112020) provides that “women’s participation in decision-making and management” shall be defined as a field given priority in development, etc. All such provisions embody the content and the spirit of the Convention and constitute the efforts and achievements of the Chinese government in the implementation of CEDAW.

 

Under efforts exerted by the Chinese government, the level of protection of women’s rights in China has been promoted constantly. For example, the policy of extending guaranteed small loans with fiscal interest discount to women adopted by the Chinese government has enabled nearly 4 million women to start up their own businesses with small loans; the pregnant and lying-in woman’s hospital delivery rate nationwide rose from 88.4% in 2006 to 99.2% in 2012; and the rate of maternal deaths dropped from 41.1/100,000 in 2006 to 23.2/100,000 in 2013.¹⁰

 

 

Although the series of measures taken by China with respect to implementation of CEDAW, have effectively promoted protection of women’s rights there still exist some insufficiency. In this article, only the relatively outstanding problems therein will be analyzed as follows.

 

 

3.1.1. “Discrimination Against women” has not been defined in legislation. Legislation is the primary measure to be taken in bringing the obligations prescribed by the Convention into domestic law, with a view to effectively implementing the Convention. Although China has provided for women’s equal rights with men in legislation on the basis of the principle of equality between men and women, there are still some defects. The most outstanding one of the defects which was repeatedly pointed out by the United Nations Committee on the Elimination of Discrimination Against Women when examining China’s regular reports is the lack of a comprehensive definition of “discrimination against women.” The existing law of China only positively prescribes women’s equal rights, with a lack of specific definition of what is “discrimination against women” in legislation, which negatively impacts fulfillment of the obligations prescribed by the Convention and hence the protection of women’s rights.
3.1.2 There is insufficiency of temporary special measures for realizing substantial equality or equality in fact, particularly those concerning women’s participation in politics. As mentioned above, the Convention allows adoption of temporary special measures to give preference to the protection of women, in order to realize de facto equality between men and women. Though relevant special measures are prescribed by Chinese law, such as those for the quota system in the aspect of women’s participation in politics and public life, there still exists a certain gap between Chinese women’s participation in politics and the corresponding international standard, in terms of quantity, structure and quality. Take the proportion of female deputies in the congress as an example. By March 2015, there had been 42 countries in which the proportion of female deputies in the total of deputies in congress reached 30% or higher. In comparison, although the proportion of female deputies to the National People’s Congress of China has kept rising, the rate was 23.4% for the 12th NPC.¹¹ This problem partially stems from unspecific or insufficient provision of the relevant legislation for the corresponding quotas thereof.

 

3.1.3 There is the absence of legislation in some fields. CEDAW requires full-scale protection of women’s human rights and fundamental freedom. Although the relevant legislation of China is of very extensive coverage, there is still the absence of legislation in certain fields. For example, though China has adopted the Program of Action against Human Trafficking, there still a lack of comprehensive legislation against human trafficking, which results in inability to curb the crime of trafficking in women effectively.  

 

3.1.4 Some legislation contravenes the notion of protecting human rights. A relatively typical example hereof is in the fight against prostitution by women. China has a system of detention-education of prostitutes, which means that in accordance with the Detention-Education Measures for Those Engaged in Prostitution or Whoring adopted by the State Council, public security organs can apply a series of administrative coercion measures to those engaged in prostitution or whoring, including imposition on them of six months to two years’ restriction of personal freedom, such as forced education and labor, without investigation and trial by court. Detention-education thereof means that long-term restriction of the personal freedom of citizens can be imposed without court investigation and trail, which will result in Power Rent-seeking and infringement by public power on personal rights, in contrary to the spirit of the rule of law, and in conflict with the provisions for the protection of citizens’ personal freedom in the Constitution, the Legislation Law, the Administrative Coercion Law and the Law of the People's Republic of China on Administrative Punishments. According to the relevant provisions of law, any coercive measures and punishment meant to restrict personal freedom can only be stipulated by the National People’s Congress and its Standing Committee in the form of enacting law. Therefore, the system of detention-education is against the rule of law and the notion of protecting human rights. 

 

 

Effective implementation of law is an indispensable approach for realizing rights. The law in China concerning the protection of women’s rights is in continued improvement, but the implementation the law is not ideal enough. There are the following several relatively outstanding problems.

 

3.2.1 There is inadequate protection of personal rights, particularly the rights to life and health. Traditionally, there has been in China the idea of giving preference for sons over daughters and the deeply-rooted notion of “raising children to provide against old age”, which makes the protection of women and female babies’ rights to life and health unoptimistic, and which is particularly serious in some rural areas. There still exist acts of gender-based selective abortion, forced abortion, drowning, abandoning, injuring or killing female babies, and ill-treatment of women who give birth to female babies or who are infertile, and such acts are often not punished powerfully by law. There still exist the phenomena of lax enforcement of laws or regulations on maternal and children health care and birth control, and ineffective supervision over enforcement of law thereon. It is imperative to enhance the capacity of carrying out administration by law and providing administrative service by law on the part of human resources for administrative management and technical service provision. Besides, it is yet to strengthen efforts to crack down on lawbreaking or criminal acts of trafficking in and kidnapping of women.  The laws forbidding prostitution by women and whoring are not enforced effectively, etc. 3.2.2. The protection of rural women’s rights to and interests on land is ineffective. Though it is provided in the Law of the People's Republic of China on the Protection of Rights and Interests of Women, the Law of the People's Republic of China on Land Contract in Rural Areas, etc. that women enjoy equal rights with men in the contract-based management of farmland, distribution of income in rural collective economic organizations, use of fees in compensation for rural land expropriation or requisition, use of rural housing sites, etc., barriers meant to restrict or ignore obtainment of land rights by women in rural areas still exist in large quantities. In some regions, Villagers Committees, in the name of exercising autonomous rights in violation of the relevant provisions of the Law of the People's Republic of China on Land Contract in Rural Areas, restrict exercise of the right to land contract by women or deprive them of this right. Meanwhile, there is lack of effective mechanisms for settling land disputes involving women.

 

3.2.3 There is gender discrimination in employment. In terms of employment and economic participation, though measures for improvement have been adopted one after another, there is still serious discrimination against women (especially those who are married but have not given birth). Men and women get different pay for the same work. Structural inequality of professions between men and women and professional segregation put women in a disadvantageous or inferior position, resulting in the existence of a de facto gap between men and women in terms of salary payment. Women subject to discrimination in employment are unable to safeguard their legal rights effectively, etc.

 

3.2.4 There is insufficient realization of women’s equal rights to receive education. China has made great achievements in increasing the schooling rate of female children and decreasing the illiterate rate of adult women. Plans for the development of women in the field of science and technology have also been made. Nevertheless, there is still insufficient realization of women’s equal rights to receive education with men. For example, in the annual national university admission, the minimum score for admission to some specialties is artificially raised for female applicants, causing discrimination against female applicants and making it unfair for them. Besides, there is insufficient protection of the right to receive education on the part of women of ethnic minorities, women with religious beliefs, female children and left-behind girls, disabled women and disabled female children. 

 

 

 

There are relatively many systems that need to be improved. For example, temporary special measures with greater binding force, such as introduction of compulsory quota systems, can be increased, to ensure women’s full and equal participation in election and appointment of women to job positions; comprehensive legislation against human trafficking can be made, to define trafficking in women, and to bring domestic laws into line with the corresponding standards of international law; there need to be equal threshold of the minimum university admission score for both male and female applicants, and financial and other resources therefor need to be increased, to ensure that women of ethnic minorities, women with religious beliefs, female children, left-behind girls, disabled women and disabled female children can receive education on an equal footing; and, all the laws, customs, conventions in both urban and rural areas that prevent women from obtaining the right to contract-based operation of farmland and from having their land-use right registered need to be reviewed, revised and improved, etc.

 

To repeal legislation that contravenes the conception of human rights protection is also a major means of perfection of systems. The most imperative work for the present is to abolish detention-education system. Even for prostitutes, their rights of basic personal freedom should be brought under restriction or protection in accordance with law, which is a requirement of unification of law and protection of women’s human rights in China, and which is also an important approach for fulfilling the obligations prescribed by the Convention.

 

 

The main points hereof include: strengthening of efforts for law enforcement, to put an end to lawbreaking acts of non-medical fetus sex determination stemming from the deep-rooted traditional preference for boys over girls, gender-based selective abortion, forced abortion, forced sterilization and killing of female babies;; provision of free services of birth control for all women; ; adoption of measures to eliminate discrimination against women affected by AIDS; obligation of the government to remove barriers meant to prevent women in rural areas from obtaining land-use rights; and to provide effective measures for settling land disputes involving women; and, ensuring that women’s entitlement to full property rights won’t be affected by the change of their marital status. 

 

To sum up, as the “Charter of Women’s Rights” in the international community, CEDAW is aimed at the elimination of all forms of discrimination against women and the practical realization of de-facto equality between men and women. It has been improved continuously through efforts of the United Nations Committee on the Elimination of Discrimination against Women, and provides more and more powerful legal protection for women’s equal rights with men. All the States Parties should earnestly perform their warranty duties in accordance with the Convention, with a view to eliminating discrimination against women and providing the most sufficient protection of the human rights and fundamental freedom of the women in the countries concerned.

 

(translated by Liu Ruiying)

 

*SUN Xiaohong （孙晓红）, associate professor at Law School, Shanxi University of Finance and Economics, doctor of law.

1. Xianming, Xu. International Human Rights Law. Law Press, 2004, p. 362.

4. Supra note 2, P.175.

5. United Nations Treaty Body Database.

6. Li Yani, “Constructive dialogue in the international domain: a record of the 59th meeting of the Committee on the Elimination of Discrimination against Women ,” Collection of Women Studies, Issue 1, January, 2015.

7. ［EB/OL］, CEDAW.

8. Xianming, Xu. International Human Rights Law. Law Press, 2004, p. 385.

9. “The United Nations Examines China’s Report on the Implementation of CEDAW”.

10. Ibid

11. Liu Bohong, “Women’s participation in politics in the international community and its influence on Chinese women’s participation in politics”, Journal of Chinese Academy of Governance, 2015. Issue 2.