Excellencies, Ladies and Gentlemen:
It is a great honor for me to have been invited to speak to you today, and I would like to express my deep gratitude to the organizers of the World Women’s Peace Forum Gwangju and the Government of the Republic of Korea.
I. Introduction
The subject of this session is “Human Rights of Women and Violence against Women”. In the following, I shall examine these questions from a European perspective. Thus, I hope to contribute to the world-wide exchange of experiences and ideas that is the purpose of the World Women’s Peace Forum. Let me turn to the first issue:
II. Recognizing Women’s Human Rights in Europe
Here, the first question is to determine the contents of women’s human rights. Do they differ from men’s human rights? I give you the typical lawyer’s answer: Yes and no. No, women’s human rights do not differ from men’s human rights: Human rights are women’s rights. That means: All human rights recognized on the universal or regional level are rights that both men and women enjoy. All have the same right to life, to be free from torture, to express their opinions freely etc. But yes, women’s human rights differ from men’s human rights because the typical human rights violations against women are different. This is so because the social situation of men and women is not identical: In most societies, women still suffer from gender stereotypes and spend more time in the private sphere – particularly in the family – than men. Therefore, a much larger part of human rights violations against women happens in the private sphere. Consequently, the contents of human rights must be adapted so as to protect women effectively. Lastly, because of persisting gender stereotypes, women are still discriminated against – in the workplace and in public life. For that reason, comprehensive anti-discrimination law is needed, and measures must be taken to ensure women’s full equality in practice. The European experience is that the fight against gender discrimination is a long one – and has not yet been won.
I now turn to the question of how these dimensions of women’s human rights are realized in Europe, particularly within the framework of the Council of Europe and within the European Union. The first dimension is the
1. Equal Applicability of Human Rights to Men and Women
This dimension of women’s human rights does not pose problems in Europe. Article 14 of the European Convention on Human Rights guarantees men and women equality in the enjoyment of their human rights. This Convention applies to 47 states in Europe – to all members of the European Union as well as to 20 others, including, e.g., Turkey and Russia. In case of a violation of Article 14, any individual can bring a complaint to the European Court of Human Rights in Strasbourg, France, if domestic remedies have been exhausted. This Court will issue a binding judgment and may even oblige a State to pay compensation to the victim.
Within the European Union, human rights including gender equality are considered to be the basis of the Union. The European Charter of Fundamental Rights solemnly reaffirms the equal applicability of human rights to men and women (Articles 20 and 21). Although it is not legally binding, the Charter is considered to be an authoritative restatement of the law of the European Union, and the European Court of Justice in Luxemburg has begun to draw on the Charter when deciding whether EU law is compatible with human rights. Thus, I conclude that the first dimension of women’s human rights is realized in Europe. However, the situation is less clear when we look at the second dimension of women’s human right: The need for
2. Adapting Human Rights so as to Protect Women Effectively
Here, I would like to highlight recent case law of the European Court of Human Rights: In 2005, the Court decided the case of Siliadin v. France, a typical case of domestic slavery. At the age of fifteen years, Ms Siliadin was sent from Togo to France by her parents on a tourist visa. She was to work in the home of a specific third person so as to pay off the costs of her plane ticket; in return, the “employer” should ensure that Ms Siliadin received schooling and legal immigration status in France. In reality, Ms Siliadin worked seven days a week, fifteen hours a day, with no day off and no pay. She had to sleep on the floor and had no private area. She could not leave because her passport had been taken away. After Ms Siliadin had got hold of her passport, she escaped and brought criminal charges against her “employers.” Yet, they were acquitted because Ms Siliadin had been able to leave the house unsupervised and to contact her family. Therefore, the French court held that she had not been in a state of dependence or vulnerability, which was necessary for a criminal conviction.
The European Court of Human Rights condemned France for a violation of Article 4 of the Convention. This provision prohibits slavery, servitude, and compulsory labor. The Court found that Ms Siliadin had been in a situation of “servitude” as she was forced to provide her services. The Court considered it irrelevant that the parents had sent Ms Siliadin to France. It considered decisive that she was vulnerable and isolated as she was a minor living illegally and as she had no financial resources. The Court held that states must provide effective protection to the victims, especially through criminal prosecution of domestic slavery. What is particularly important is that the Court emphasized that the vast majority of victims of domestic slavery worldwide are women. Therefore, it adapted the gender-neutral provision – the prohibition of slavery and servitude – so as to meet the needs of women. This judgment is very important because it makes clear that all states parties to the European Convention on Human Rights must take effective measures against domestic slavery. Moreover, I suggest that the decision can be used in favor of victims of forced prostitution because they are in a situation very similar to that of Ms Siliadin. Therefore, the European Convention also obliges the states to take measures to protect victims of forced prostitution. This obligation exists irrespective of whether a State has also ratified the relevant UN convention. Thus, I conclude that the potential of the European Convention of Human Rights for the effective protection of women’s human rights has not been realized to its full extent.
The third, and largest, dimension of women’s human rights concerns
3. Fighting against Gender Discrimination
In this respect, the European Union has been the most dynamic actor in Europe, in particular in the fields of labor law and social law. The reason is that the principle of equal pay for equal work has been a part of the EC treaty since the creation of the European Economic Community in 1957. By an extensive interpretation, the European Court of Justice turned this principle into a prohibition of gender discrimination that is directly applicable in labor relations, even if the employer is a private person. One of its major contributions to fighting gender discrimination is its concept of “indirect discrimination.” It covers rules that are gender-neutral on their face, but that have a significantly larger impact on one sex. The typical example is part-time work. Since most part-time workers are women, any discrimination between part-time and full-time workers affects women disproportionately. Thus, the unequal treatment has to be justified.
The second major contribution of the European Court of Justice to combating gender discrimination concerns positive measures. The Court held so-called “soft quota” to be compatible with the principle of substantive equality. “Soft quota” means a rule according to which a woman has to be promoted if she is equally competent as compared to her male competitor, unless there are personal reasons for promoting the man. Such personal reasons are very limited; they may be fulfilled if the man had to yield to a woman before or if he has been unemployed for a long time. Other reasons, such as the family situation, may not be taken into account. The case law of the Court is important despite the existence of Article 4 of the UN-Convention on the Elimination of Discrimination against Women (CEDAW), which permits states to take temporary special measures in favor of women. Many states, such as my own, had argued that their constitution prohibits such positive measures. Since European law takes precedence over national law, even constitutional law, the European Court of Justice put an end to this argument.
But of course it is not only at the workplace that women in Europe are discriminated against. Women are largely underrepresented in parliaments, both on the national and the European level, and in the higher management of public and private enterprises. Here, women’s NGOs such as the European Women Lawyers Association are actively promoting the balanced participation of men and women in all decision-making bodies, be they EU institutions, other public bodies or the boards of listed companies. We have had a first success: The new Fundamental Rights Agency of the European Union, which was created early this year, must have a balanced representation of men and women both among its experts and in its board and staff. We hope that this sets an example for other bodies set up by the European Union and for the member states with respect to their decision-making bodies.
Finally, I would like to turn to the special problem of
III. Combating Violence against Women in Europe
One can distinguish between two typical forms of violence against women ? domestic violence and trafficking. As I argued in the beginning, actions in this area are required by women’s human rights so as to protect them effectively. Moreover, the CEDAW Committee convincingly argues that violence against women is a form of gender discrimination if it is directed against women because they are women or if it affects women disproportionately. Therefore, measures to combat violence against women are also required by the prohibition of gender discrimination and the ensuing obligation of the states to ensure effective equality.
As is well known, almost 80 % of the victims of human trafficking are women, and more than two thirds of them are victims of sexual exploitation. Until 2000, measures against trafficking taken at the international level were primarily law enforcement instruments. They did not contain strong and mandatory provisions on victim protection and assistance. This began to change with the so-called “Palermo Protocol” of the UN General Assembly and the 2005 Council of Europe Convention on Trafficking. While the UN Protocol only obliges states to consider measures aimed at the physical, psychological and social recovery of victims and at permitting them to remain in the country, the Council of Europe Convention obliges the states to do so. However, women’s organizations have criticized that the Convention does not effectively protect victims of human trafficking. For example, the Convention only provides that victims be given a period of 30 days to consider whether they want to cooperate with national authorities in the prosecution of the traffickers. In the opinion of women’s organizations, this time is not sufficient, given the traumatic experience that victims had to go through. Similarly, the Convention obliges states to issue a residence permit to the victim if that is necessary because of the victim’s personal situation or because the victim’s help is needed for the criminal prosecution of the traffickers. Women’s organizations had called for prescribing a minimum time period of six months for the residence permit, so as to give the victim relief and security for future planning, but they were not successful.
In contrast, the human rights approach has not yet been adopted by the European Union. It introduced, in 2002, a framework decision on combating human trafficking which aims at harmonizing the criminal law of the EU member states in this area. There are no provisions on protecting the victims’ human rights, and the general EU rules concerning victims focus merely on the victim’s role in criminal proceedings. Consequently, EU law lacks rules concerning the special situation of women who are victims of trafficking.
As regards domestic violence, the Council of Europe and the European Union have only recently begun to take actions. At the end of last year, the Council of Europe launched a campaign on the subject. It focuses on awareness-raising, in particular within the parliaments of the member states and among their law enforcement authorities and the judiciary. Recent decisions of the European Court of Human Rights and of the CEDAW Committee show that a lot remains to be done: In most states, laws are in place which punish acts of domestic violence, but there is a lack of protection during the investigations and the criminal proceedings. Lawmakers have to introduce temporary restraining orders through which victims can exclude the perpetrator from the common apartment, and more women’s shelters have to be set up. In addition, prosecutors have to be aware of the psychological situation of a victim of sexual violence.
Likewise, the European Union has resorted to programs aimed at awareness-raising; there are no plans to introduce new legislation. The reason is that there is a dispute as to whether the EU has the power to legislate in this area. If one follows the CEDAW Committee and considers violence against women as a form of discrimination, Article 13 of the EC Treaty would be a suitable legal basis. However, as this interpretation is contested, the European Women Lawyers Association is actively lobbying for an express inclusion of this power into the new constitutional treaty for Europe.
IV. Conclusion
I would like to emphasize that the European Court of Human Rights has begun to develop a gender-sensitive jurisprudence. Moreover, political bodies have become aware of the need to take measure for combating violence against women. However, the recognition that violence against women is a form of discrimination has not yet taken root. With respect to ensuring women’s equality in the workplace, it was mainly through the EU and the European Court of Justice that progress was achieved in the EU member states. In contrast, there is still much resistance to taking measures aiming at improving women’s equal participation in the public and economic sphere.
Despite significant progress in the recognition of gender-specific human rights violations and of the manifold forms of discrimination against women still prevalent in Europe, much remains to be done. The demographic problem that Europe faces because of its ageing societies helps promote measures aimed at reconciling employment and family life and thus at ensuring equality of the sexes in working life. In contrast, it is more difficult to enlist support for measures combating violence against women, which many actors still regard as a “private” matter. Finally, the most difficult part is ensuring equal participation of women and men in the exercise of public functions and economic decision-making because it requires men to cede power to women. Women’s organizations have to emphasize that through the recognition of women’s human rights and full equality between the sexes, men will lose individual power, but society as a whole stands to win. In my opinion, this conclusion is valid for all regions of the world, and it is this message that I would like to convey to the World Women’s Peace Forum Gwangju.