March 8th is International Women’s Day, formally observed by the United Nations in recognition of the fact that ‘securing peace and social progress and the full enjoyment of human rights and fundamental freedoms require the active participation, equality and development of women’ and to acknowledge ‘the contribution of women to strengthening the strengthening of international peace and security.’ The official theme for International Women’s Day 2014 is ‘Inspiring Change’.
While there is much more to be done in order to fully realise the human rights of women around the world (for example, see here, here and here), today we celebrate four cases that can inspire us all to continue to see law as a positive instrument for realising women’s human rights.
Women’s Inheritance Rights
Late last year we saw an encouraging decision from the Court of Appeal of Botswana drawing upon a ‘living’ interpretation of customary law to underscore the importance of gender equality and to protect women’s socio-economic rights. In Ramantele v Mmusi the Court upheld Edith Mmusi’s and her sisters’ right to inherit their parents’ home, despite a claim from her male nephew that under Ngwasketse customary law the family home always passes to male heirs. As Tara Winberg wrote in an earlier post, ‘the Mmusi ruling has recognised and elevated the social reality of women’s inheritance over customary law stereotypes of exclusively male heirs.’
The Canadian Supreme Court in the case of Canada (Attorney General) v Bedford struck down as unconstitutional provisions that criminalised a certain activities associated with prostitution. The Court reasoned that such provisions violated the constitutional right to security of sex workers, who are predominately women. The criminal provisions prevented women from implementing safety measures such as hiring bodyguards, working indoors or properly screening potential clients and perform health checks. All of these prohibitions materially increased the risk of harm to sex workers. As Meghan Campbell argues, the reasoning of both the Supreme Court and the Ontario Court of Appeal in Bedford is welcomed because ‘rather than debate on the morality of prostitution or the importance of quiet and orderly neighbourhoods and streets, the [Court] squarely addresses how the law increases the risk of serious bodily harm to those who work in prostitution. Not only did it focus on the prostitute, but it allowed her interests to triumph’
Positive obligations to protect women and girls from domestic violence
The European Court of Human Rights has continued to develop a substantive equality approach to human rights. In Eremia and Others v Moldova police and the social services had put pressure on Ms Eremia to drop the case against her abusive husband, and had made sexist and stereotypical remarks to her when she complained of ill-treatment. The ECtHR held that there had been a violation of Art 14, in conjunction with Art 3. The case is important for a number of reasons, not least that the Court recognizes the gender discriminatory aspects of domestic violence. It confirms the positive obligations upon governments to protect from domestic violence, and applies a test of ‘effectiveness’ in this regard. As Dimitrina Petrova highlights, ‘the Court stated that the authorities’ actions were not a simple failure or delay in dealing with the violence against Ms Eremia, but amounted to repeatedly condoning such violence and reflected a discriminatory attitude towards her as a woman. It was clear from the facts of the case that the authorities did not fully appreciate the seriousness and extent of the problem of domestic violence in Moldova and its discriminatory effect on women.’ Accordingly, although the state had put in place a legislative framework allowing measures against persons accused of family violence, and had taken steps to protect the applicants, these had not been effective. This case clearly signals a move by the ECtHR towards a substantive conception of equality that is prepared to recognise and address institutionalised prejudices.
Education Rights in South Africa
In his official message for International Women’s Day, UN Secretary General, Ban Ki-moon highlighted primary education for girls as one of the key areas to address on the journey towards gender equality. Recent litigation in South Africa, whereby the delay on behalf of the government in providing chairs and desks for learners in socio-economically deprived classrooms in the Eastern Cape was declared as a breach of their constitutionally enshrined right to education, is a welcome development. Education has the power to transform lives, particularly the lives of women and girls. We look forward to seeing more developments in this area over the next 12 months.