Promoting Domestic Implementation of CEDAW in China

Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), adopted unanimously by UN General Assembly in 1979, taken as one of the core human rights treaties of the United Nations, is the milestone of the movement for gender equality. To achieve the aim of gender equality, CEDAW endows women with comprehensive rights in civil, political, economic, social, cultural and domestic aspects, and imposes state parties to take all appropriate measures to eliminate all forms of discrimination against women.

People’s Republic of China ratified CEDAW in December 1980, and made a reservation on Article 29(1) of the Convention. China has not ratified the optional protocol. According to Article 18 of the convention, till now, China has handed in 6 periodical reports to the Committee on the Elimination of Discrimination against Women.

I. Implementation of CEDAW in China

(I)Relationship between CEDAW and Chinese Domestic Law

Relationship between CEDAW and Chinese domestic law essentially is the issue of relationship between treaty and domestic law of China.

Constitutional law of China and relevant constitutional legislations do not make an explicit prescription of the relationship between treaty and domestic law. There are two different opinions held by Chinese scholars on this issue. Some people believe that treaty is not the component of Chinese legal system. They argue that “Treaty is not a form of Chinese law origin, Chinese legislation do not prescribe that ‘treaty is a part of Chinese legal system”.[1] On the other hand, more international law scholars think that treaty acceded or ratified by China is one kind of origins of Chinese law, therefore is part of Chinese legal system.

A clear point is that, to implement the treaty, it must be linked up with domestic law. Practice in most of countries could be divided into two approaches. Firstly, the treaty is directly incorporated into the domestic legal system, and becomes a component of the legal system. Secondly, through domestic legislation, contents of the treaty would be transferred into domestic law. Some countries, such as Italy, Netherlands and Russia, specify the relationship between treaty and domestic law as well as the implementation and approach implementing the treaty domestically.

However, Constitutional Law of China does not mention the relationship between the treaty and domestic law. Consequently, domestic implementation approach of the treaty is not clear. Taking international human rights conventions for example, in practice, there are two ways to link up the treaty with Chinese domestic law. One of them is transformation. In 1992, the National People’s Congress (NPC) of China passed the Women’s Rights Securing Law of People’s Republic of China, incorporating relevant contents of CEDAW. On the other hand, some diplomatic statements of China assert that the treaty acceded by China comes into force domestically. For instance, in 1990, Chinese delegation told the Committee against Torture that, after the Convention against Torture and other Cruel, inhuman and Degrading Treatment came into effect in China, crimes prescribed in the convention would be considered as those prescribed in Chinese domestic law; provisions of the convention could be applied directly in China. It looks like that in China, international human rights conventions would be directly applied or transformed into domestic law.

In fact, not only the above two ways, different treaties have different ways to be applied domestically. In addition, there is no constitutional legislation basis; it is difficult to sum up usual practice of approach to implementing the treaty in China.

(II)Practice in China for Implementing CEDAW

i. Constitutional Guarantee of Gender Equality

Gender equality is a principle of Chinese Constitutional Law. According to article 48 of the Constitutional Law, “women enjoy equal rights with men in political, economic, cultural, social area, as well as family life. Women’s rights and interests are protected by state. Women and men should be paid equally. Women have the opportunity to be trained and selected as cadre.” In article 49, it prescribes that, “marriage, family, mother, and children are protected by the state. Every couple has the responsibility to practice family planning. Parents have the responsibility to cultivate and educate minor children; major children have the responsibility to support and assist their parents. Breach of marriage freedom and abuse of the old, women and children are forbidden.” Article 33 states that everyone who has the nationality of People’s Republic of China is Chinese citizen. Chinese citizen is equal before the law. Article 34 confirms that “every Chinese citizen who is above 18 has the right to vote and to be voted, regardless of his or her nationality, race, gender, career, birth, religion, education level, possessions, and residence.” In 2004, the fourth amendment of Chinese Constitutional Law was passed by the NPC of China, in which “the state respects and protects human rights” has been written in Constitutional Law. This is the first time the diction “human rights” came into Chinese legal system; and it lays the footstone of Chinese human rights protection career.

ii. Carrying Out CEDAW in Chinese Domestic Law

Legislation and amendment of domestic law are the main approaches for China to transfer CEDAW into domestic legal system. The Women’s Rights Securing Law of China in 1992 is a comprehensive law protecting women’s rights, and is the basic law for protecting women’s human rights. This law incorporates the rights confirmed in CEDAW, prescribes women’s rights in politics, culture and education, work, property, person, marriage and family. Relevant laws and regulations such as Civil Law, Criminal Law, Voting Law, Labor Law, Marriage Law, Education law, Law of Health Care of Mother and Infant, Inheritance Law, Adoption Law, Labor Union Law, Population and Family Planning Law, Agrarian Contracting Law, etc, have the specific provisions protecting women’s relevant rights and interests.

iii. Government Branch at the Wheel

National Working Committee on Children and Women under the State Council is the institute that focuses on children and women’ work. After that, working branches on children and women are established under provincial, city and county governments; and are sponsored by corresponding local government. These institutes are responsible for supervising and coordinating women and children work in other governmental branches, and they gradually work up effective working system. In 2001, the National Women and Children’s Rights and Interests Coordinating Group was established, which consists of 14 committees and ministries under State Council. To promote implementation of Women’s Rights Securing Law, this group carries out relevant investigations, makes intensive research on important and complicated issues, and urge the decision of typical cases.

iv.Judicial Guarantee of Women’s Rights and Interests

In China, on account of the ambiguous relationship between CEDAW and Chinese domestic law, limited purview and dissatisfied effectiveness of the court, as well as judges and lawyers’ poor understanding of human rights conventions, the case in which one party makes the claim directly based on CEDAW or the court directly invokes CEDAW to make decision is rare. It is the society that offers legal aid to women. In 1996, Ministry of Justice distributed a Notice on Promoting Legal Aid for Women to Protect Women’s Rights and Interests, according to which legal aid organizations, law firms, and notarization institutes must accept the cases in which women claim to be infringed. These institutes must consider the case directly and immediately, and charge lower or free to poor women.

Several legal aid branches under local judicial institutes are established, such as Jiangsu Legal Aid Center for Women’s Rights and Interests, Department for Women’s Rights in Helongjiang Legal Aid Center, and Workstation for Women’s Rights in Fujian Legal Aid Center. In some provinces, institutes for preventing and deterring domestic violence are founded, such as Beijing Domestic Violence Clinic, Qingdao Identification Center for Domestic Violence Injury. These institutes offer shelter, medical, psychological and legal aid to injured women.

Non-governmental organizations and different social levels give legal help to women. In 1992, Women’s Institute of Chinese Academy of Management Sciences opened the first national hotline to women in China. During the last decade, nearly one thousand hotlines have been opened to women. Some universities have set up legal aid center for women, some give sponsor to needy women.

v. Women’s Non-Governmental Organizations

Role of women’s non-governmental organizations is emphasized in China. According to their tenets, All China Women’s Union, All China Labor Union, Central Committee of the Communist Youth League of China, China Disabled Union, China Science and Technology Association, etc, are responsible for promoting gender equality. Since 1980s, women’s non-governmental organizations in several fields have been established. Each of the eight Democratic Parties of China has their own working committee on women.

II. Major Problems in Implementing CEDAW in China

(I)The Gap between CEDAW and Domestic Law

Quite small amount of states directly incorporate CEDAW in their domestic law, although the Committee on Eliminating Discrimination against Women always urges the states to do so. Most of parties, including China, prefer to transform the convention into domestic law.

However, certain contents of the convention would be omitted during the transformation. Consequently, the gap between domestic law and the convention emerged, some rights of women confirmed in CEDAW was absent in domestic law.

Firstly, in Chinese legal system, there is not a specific definition for “discrimination”. In 2005, Resolution Revising Women’s Rights and Interests Protecting Law was passed in the 17th session of the 10th Standing Committee of the NPC. A principle against discrimination is written in the revised Women’s Rights and Interests Protecting Law, that is “state must take measures to eliminate all forms of discrimination against women”. We still could not find a clear definition of “discrimination against women” in the revised law, nonetheless, it is a step walking towards CEDAW.

Secondly, in domestic law, some counterpoints of CEDAW are vacancy. For instance, No. 19th general comment of the Committee believes that violence against women is a kind of discrimination against women, and infringes human rights. The comment presses parties to remove violence against women. However, China has not yet carried out spirit of the comment in domestic law.

Thirdly, there are no effective procedures to safeguard these material rights of women.

(II)Discrimination against Women in Private Sphere Is Neglected

Private sphere in which women are the major members was not in the research scope of traditional international law and human rights theories. Therefore, most of women were excluded from human rights concept. Core theory of feministic international law is the critics on division of public and private sphere. Feminists assert that it is unreasonable to divide international law into public and private sector, “a dual-standard is invented to deal with women’s rights”.[2] On the basis of criticism against public and private division, feminism calls on reform of state responsibility. [3]

CDEAW is the fruit of feministic reform. Article 2(5) of the convention asks states “to eliminate discrimination against women from any person, organization, or enterprise”. Article 5(1) attempts to achieve “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”. Correspondingly, a notable characteristic of state parties’ responsibility under the convention is that state must be responsible for all personal discrimination actions against women. States must crack down on the aggressor; otherwise, states must pay out for their nonfeasance.

However, either the law executing branch or the officials obstinately persist that they are merely responsible for “public affairs”, personal fields are beyond their authority.

Taking domestic violence for example, usually the victim will firstly appeal to the police, while the police believe that domestic violence is family affairs, and should be disposed domestically. Therefore, in case of alike reports, the police either prevaricate or slightly console the victim. They neither put down the case nor produce official judicial identification, saying nothing of making some relief to the victim. As a result, women victims could not acquire timely help; they even could not get the proof. Similar situation also happens to the procuratorate. Procurators must consider whether it is in accordance with standards of public prosecution case or not; private prosecution case must be appealed by the victims themselves. Judges always take domestic violence as household bother. Invaders could not be sentenced according to their maleficence. Compensation claims brought forth by women victim are usually denied.

(III)Limited Role of National Human Rights Institution

National institution for promoting women’s human rights in China is National Working Committee on Children and Women under the State Council. However, it is in the corner because of lower fame, poor independence, limited authority, and financial problems. All of these factors weaken its efficiency in promoting women’s human rights.

In addition, similar predicaments also face with non-governmental organizations which might be filled with experts on women’s human rights. They know how to make use of international human rights documents to promote women’s human rights,while their promising programs and plans are often abortional because of resources shortage.

III. Reasons for Obstacles Facing China’s Implementation of CEDAW

(I)Absence of Gender Consciousness in Human Rights Theory and Practice

Legislation which incorporated the principle of gender equality but did not consider women’s experience will not improve women’s status. In fact, it will enlarge the gap between men and women further more. Legislation and development measures improving women’s human rights will not come into force if there is no approach aiming at alteration of attitudes and bias.

Executives which do not possess the knowledge of gender would not interdict the act of infringing human rights in private field, because they have not waken up within the range of state responsibility. Consequently, most of injured women could not receive deserved remedy. On the other hand, absence of gender consciousness in propaganda, education or policy-making will lead to pertinacious existence of bias discriminating women under which role of women in the society is family tender; women should be assigned to suitable work place which is fit for their ‘quality’. Bias like this hinders women’s equal opportunity as men to obtain social status and welfare; women have to depend on men, husband or family in housing, foodstuff allocation, and other services. Burdensome chores take on most of women’s hours; social and public activities are ‘circle of men’. Pertinacious concept about role of women and men makes direct and indirect discrimination against women permanently in the fields of education, work, everyday, etc.

Similar limitation also exists in human rights theories. For example, many textbooks of human rights law in China always take women’s human rights as ‘special’ human rights besides universal human rights.[4] Premises of the studies like this marginalize women who posses half of the population all over the world. Human rights of women, as a result, are hardly brought forth to the agenda as mainstream human rights.

(II)Deficiency of CEDAW

Flaccid languages are used in CEDAW. “All kind of suitable measures” is repeatedly used to ask state parties to bear their responsibility, which leaves expansive space for discretion. In addition, a number of significant reservations and declarations made by state parties further erode the effectiveness of the convention.

Although production of CEDAW was considered as a good idea, and CEDAW penetrates the reason of women’s inferior status, feminists believe that CEDAW should be responsible for marginalization of women’s human rights in International law.[5] Objectively, main human rights institutes do not pay attention to women’s human rights; or they at most mention women issues involved in CEDAW rather than human rights of women. Procedures safeguarding CEDAW is incapable comparing with procedures of other international human rights conventions. A list of women’s rights plus feeble implementation procedure is of no use to rooted inequality.[6]

IV. Suggestions Improving Implementation of CEDAW in China

(I)Popularization of CEDAW in China

Generally speaking, CEDAW is not as famous as ICCPR or ICESCR. In some countries, such as Algeria, CDEAW is not familiar to not only executive officers but also human rights non-governmental organizations or women’s organization.[7] In fact, similar situation also happens to other state parties, which forms a basal obstruction to efficient implementation of the convention.

Committee of CEDAW calls for state parties to promulgate the convention in their official language,[8] to educate and train assemblymen, judges and executive officers of CEDAW related knowledge, and to propagandize human rights information to women who must be informed of the approach of remedy under the convention in case of being infringed.

Actually, popularization of the convention should be faced with the whole society, especially the men. As we all know, policy-making level in every field of the society is mainly controlled by men; traditional concept of male dominant role in family is still very prevalent. Consequently, invasion of women’s human rights always comes from men. Therefore, protection of women’s human rights is not women’s own business; it is the responsibility all over the society.

Additionally, we should make an extensive understanding of popularizing the convention. All the essence are contained in relevant documents including the convention and its protocol, the latest development of international community as well as foreign countries, general comments made by the Committee of CEDAW, Beijing Declaration and Platform for Action, and other gender related information. Besides, according to the Committee, state parties should promulgate the conclusion observations in their official language, to inform the public, especially the politicians and executive officers of measures which have been taken and will be taken to promoting legal and material gender equality.

(II)Mainstreaming Gender Perspective

Gender mainstreaming was defined by ECOSOC in the 1997 Agreed Conclusions as follows:

Mainstreaming a gender perspective is the process of assessing the implications for women and men of any planned action, including legislation, policies or programs in all areas and at all levels. It is a strategy for making women’s as well as men’s concerns and experiences an integral dimension of the design, implementation, monitoring and evaluation of polices and programs in all political, economic and societal spheres so that women and men benefit equally and inequality is not perpetuated. The ultimate goal is to achieve gender equality. [9]

Mainstreaming of gender perspective is a significant strategy for realizing gender equality, and makes a profound annotation of the definition which emphasizes equal opportunity, rights and liabilities to men and women. Rather than chasing identical opportunities, rights or liabilities between men and women, gender perspective fights against sexual determinism, and calls for equivalent consideration of interests, requirements and priorities of men and women.[10]

Inequality between man and woman is an issue of relationship. Formal strategies which focused on women, such as providing more education and resources to women have not given rise to the satisfied result. To remove the inequality, more attention should be paid to the relationship between men and women on division of work, remunerations, resources allocation, and participation of policy-making. A reform mainstreaming gender perspective in policy-making, institution construction, as well as other extensive areas is indispensable.

(III)Improving National Human Rights Protection Institution

Committee of CEDAW recommends the state parties to establish and strengthen effective national machinery, institutions and procedures, at a high level of Government, and with adequate resources, commitment and authority to advise on the impact on women of all government policies, to monitor the situation of women comprehensively, and to help formulate new policies and effectively carry out strategies and measures to eliminate discrimination.

In principle, respecting and protecting human rights are constitutional and legal responsibility of legislature, administrative organ, justice institution, and procuratorate in China. However, a uniform national human rights institution has not been established. Some scholars suggest that a committee of protection of human rights could be established as a standing committee under the National People’s Congress and Local People’s Congresses at different levels. The suggested committee is founded to promote implementation of human rights law, to supervise and give advices to other national machinery, to investigate complicated issues, and to carry out consultation, human rights education and propaganda.[11]

(IV)Strengthening Nongovernmental Supervision

Supervision of domestic implementation of CEDAW mainly comes from nongovernmental organization which has played an optimistic role in promoting women’s rights as well as realization of the convention, and which will accelerate the process of gender equality with its flourishing development. As some writers contend, a discussion on international human rights implementation mechanism which ignores contribution of nongovernmental organization is uncompleted. So this opinion continues, both human rights merit commitment and insufficient demonstrations of serious human rights invasion cases inspire activities of national and international nongovernmental organizations. Through cooperation with government and international organization, by dint of media diffusion, nongovernmental organizations discover serious invasion cases, impel to terminate the misdeed, and strive for relevant remedies. Furthermore, they try to persuade a comprehensive reform over legislation, system and practice of respecting and protection of human rights.[12]

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[1] Wan Exiang, International Treaty Law, publishing house of Wuhan University in 1998, p192.

[2] See Bai Guiming ed, International Human Rights and Its Development: China and Canada Perspectives, Law Press in 1998, p333.

[3] Huang Lie trans., Women’s Human Rights: International and National Perspective, publishing house of Chinese Social Sciences in 2001, p98-132.

[4] Some textbooks and monographs take women’s human rights as human rights of special group. See Hu Jianguang, Han Dayuan: Contemporary Human Rights Securing System, publishing house of China University of Politics and Law in 1993, Section I “Securing Women’s Human Rights” of Chapter VI “Securing Human Rights of Special Group”; see also Han Depei ed: Theory and Practice of Human Rights, publishing house of Huhan University in 1995, Section I “Securing Women’s Human Rights” of Chapter XXII“Securing Human Rights of Special Group; Luo Yuzhong, Wan Qigang: Human Rights and Legal System, publishing house of Peking University in 2001, Section I “Securing Women’s Human Rights” of Chapter VII “Securing Human Rights of Special Group.

[5] Hilary Charlesworth and Christine Chinkin, The Boundaries of International Law: A Feminist Analysis, Manchester University Press, 2000, p218.

[6] See Bai Guiming ed, International Human Rights and Its Development: China and Canada Perspectives, Law Press in 1998, p333.

[7] UN Doc. A/58/38, report of CEDAW in 2003, p12, para. 64.

[8] UN Doc. A/43/38, No. 6 general comment of CEDAW: Effective National Institution and Promulgation.

[9] United Nations Publication: Overview on Mainstreaming of Gender Perspective, the office of the special adviser on gender issues and advancement of women, 2002, p1.

[10] Office of the Special Advisor on Gender Issues and Advancement of Women, “Gender mainstreaming: strategy for promoting gender equality”, available at http://www.un.org/womenwatch/osagi/pdf/factsheet1.pdf.

[11] Mo Jihong: International Human Rights Conventions and China, World Knowledge Publishing in2005, p347-348.

[12] Zhang Naigen: International Law: Politics and Merit, Publishing House of China University of Politics and Law in 2005, p323-324.