OBLIGATIONS OF THE STATE: ACTIVE ACTION
Dalibor Jílek
1. Introductory explanations
1.1The task is to prove that the realization of all agreed obligations following from the
1979 Convention on the Elimination of All Forms of Discrimination against Women requires systematic and synergistic actions made by the states parties. Because legal thought has to rely on proper dualistic approaches, one cannot avoid it. As will be shown, the Convention contains both obligations of ‘conduct’ and ‘result’. The latter are predominantly embedded in the Convention and as such they undertake the states to take appropriate legislative, administrative measures and judicial decisions. On the contrary, the obligations of ‘conduct’ rarely occur therein. Principally, the obligations imposing to refrain from performing a specific act are sparsely codified in the Convention. In this respect, continual activities are mainly required to achieve the conventional objectives. Besides, from the standpoint of methodology, such analysis cannot be elaborated in full therefore the selective approach absolutely prevails. Evidences, of course, are not incidentally to the task freely taken.
2. An open chain of human values, conventional objectives and obligations
2.1 Last sentences of the recital to the Convention disclose twin purposes.[1] As indicated in parts in the title, the Convention stipulates the ultimate objectives: the elimination of discrimination against women in ‘all its forms and manifestations’ and ‘full equality between men and women’ in all walks of life.[2] However, from the standpoint of reality, both objectives appear quite infinitive and, for the reason of their reaching, they should be perceived as an endless process in domestic societies. Since our world is nothing near perfect. It is no place from which structural inequality has already been swept away by common efforts of states. On this point, the term ‘structural inequality’ reveals imbalanced relations of men and women to power. Women are often denied power over decisions that profoundly affect them.[3] The contracting parties are aware of this incontrovertible and incontestable fact.
2.2 Indeed, each party to the Convention either had full opportunity to share in their formulation or to agree to them after mature consideration. In such sense, no objectives to the Convention are independent from the objectives of the parties to the Convention.[4] Therefore, one may fairly presume the endorsement of objectives by each contracting party and a free association of the states parties as a whole. It ensues also from their motivation to become conventional partners, faithful promises freely arrived at and, objectively, from the norm pacta sunt servanda.[5] Thus, the parties may mutually expect achieving the objectives and rely on it. Of course, this endorsement has not given by the states parties with absoluteness and unanimity inasmuch as those made the significant number of reservations, including such which appeared to be incompatible with the object and purpose of the Convention.[6]
2.3 In the formalist logic, the objectives accepted among the parties may be qualified only as erga omnes inter partes ends. But rather, they pace to a genuine universal dimension.[7] Some vestiges of both objectives could be found in the Preamble to the Charter of the United Nations that refers to ‘the equal rights of men and women’. As rightly reminded, in other perspective, this reference forms a binding element of a ‘mini human rights charter’.[8] Besides, the recital to the Universal Declaration of Human Rights affirms this requirement. Bearing in mind also their teleological relevance, the above-mentioned instruments are tightly interconnected, even if, on the other side, the Convention remains a posterior result of normative concretisation of both fundamental universal instruments.
2.4 Conventional objectives are determined and dependent on human values. The direct link between the understood objectives and human values such as ‘dignity’, ‘equality’ or ‘justice’ is intentionally articulated in the above-mentioned instruments. Their recognition, of course, is not restricted to these formal sources because each of them remains, by definition, universal worth. The worldwide instruments are primarily in the position of their binding recognition as such. In the context of the Convention and its observance, they cannot be ignored inasmuch as they have abilities to serve as permanent vectors that have to be taken into due consideration by the contracting parties always when deciding upon policy, legislation or choice of preferences how to achieve the agreed ends.
2.5 In the realm of human rights law, as usual, the objectives are realized through obligations whose addressees are states. However, obligations in international law are ‘differently structured as regards determination of the ways and means by which the state is supposed to discharge them’.[9] Some of them, called obligations ‘of conduct’ or ‘of means’ , require the state to follow a specific course of conduct. In relation to them, two opposite possibilities traditionally exist in law. The state either is bound to perform an active action or to refrain from performing a specified act. Once again, the human rights obligation may prescribe operative or agile action or conduct of omission. On the other side, international norms may take in obligations, called obligations of ‘result’, which only require ‘to bring about a certain situation or result, leaving it free to do so by whatever means it choose’.[10] In consideration of human rights treaties, it means that such a conventional obligation requires accomplishing a specific legal situation or social practices within the state. Both categories of obligations are incorporated in human rights treaties, including the Convention fighting for full equality of women and men. But the presence of both sorts of obligations therein is frequently uneven. The nature of obligations of ‘conduct’ determines their regulatory role in all sectors of international law. In most cases, they are appropriate to govern direct relations between states.[11] The Convention is not concluded, as indicated, to perform such fundamental normative tasks. Its objectives inwardly relate to internal law of the contracting states and the social practice. On this point, structure and nature of obligations of ‘result’ rather correspond to essence of such aims.
3. Conventional obligations of ‘conduct’
3.1 For the reasons mentioned above, the obligations of ‘result’ themselves are sparsely embodied in the Convention in question. But they are not omitted from the normative content of the Convention inasmuch as their functions are in some respects irreplaceable. Obligations of ‘result’ may precisely transfer legal requirements into internal legal orders. For instance, Article 2, letter (a) places on the contracting parties the obligation ‘to embody the principle of equality of men and women in their constitution or other appropriate legislation if not yet incorporated therein’. Distinctly, the obligation requires not only legislative action but also specifies the juridical content of such a particular course of conduct. On the other hand, the read commitment provides for the legislative option as regards formal sources to which the principle of equality of men and women as a quintessential regulative idea shall be inserted. In this regard, the option between the constitution and other pieces of legislation should be elucidated in a formalist way. Some states parties have no written constitution[12] and therefore only their ordinary laws guarantee human rights. Of course, in such cases, it is absolutely impossible to do so and the parties lose afforded options. If their constitutions are in force or drafted, such states parties should rather prefer to incorporate this principle therein for several cogent arguments. Primarily, this principle oriented to social good, [13] as expressed in some places of the Preamble to the Convention, must be associated with the highest legal force in the internal legal system. Not only for the reason that the principle obtains the superior position in the hierarchal legal orders, such a status presumes conformity any norm flowing from the inferior legislation to this rationale, but predominantly for necessary practical consequences of such a position. The process and mainly final result of adoption, interpretation and application of lower norms must be adequately in line with the constitutional principle. Such a formally legal position of the principle may facilitate its formative and trans-formative effects, if implemented. Besides, as regards the significance of constitutions, they necessarily regulate fundamental social and societal relations and firm legal foundations of any state. The placement of the principle of equality between fundamental constitutional institutions reveals its significant social weight. But the conventional obligation pursues its practical impacts,[14] its ability to influence vertical relations between the state and women and as well horizontal relationships whose subjects are women.
3.2 For illustration, tightly before dissolution of Czechoslovakia, Parliament of the Czech Republic again solemnly declared in the introductory provision of the 1992 Charter of Fundamental Rights and Freedoms[15] that ‘human are free and equal in their dignity and in their rights’. An immediate analysis of this constitutional formulation discloses substantive philosophical background downing to Jean-Jacques Rousseau and his mighty work on social contract.[16] The legal phrase is written in abstract terms and, in particular, refers to both permanence and continuity of equality in dignity and rights.[17] The general clause on equality is expanded in further constitutional provisions. It could be therefore wrong not to mention Article 3 of the Charter guaranteeing fundamental rights and freedoms to everybody without distinction to gender. Though the term ‘women’ is not taken in express words, the purpose of transposition of the principle in the Czech Constitution is entirely attained. A pragmatic stance should be accepted in its transposition to the internal legal system.
3.3 Nevertheless, constitutional provisions are shaped frequently with the high degree of abstraction and indeterminacy. Although Article 3 of the Charter is assumed by legal theory and practice as an anti-discriminatory clause covering gender, the word ‘discrimination’ is not used therein. Likewise, the opposite term ‘equality’ remains aside. Both terms are exceedingly significant not only for the living legal language but also for practice and thus they must be carefully clarified in laws or judicial judgements. Generally speaking, equality in law amounts to a right to equal treatment of comparable situation[18] or a right to be free from discrimination while, by contrast, the term ‘discrimination can be construed as illegitimate adverse treatment.[19] In legislation, usually, twin legal forms of discrimination are prohibited: direct and indirect discrimination. Moreover, jurisprudence refers to structural discrimination linked to living faces of oppression of women consisting in their exploitation, marginalisation, powerlessness or violence against them. But up to now, in the Czech legislation, the principle of equality men and women is enshrined in some parts of legislation like the Employment Act,[20] the Act on Official Territorial Self-Government Units,[21] the Labour Code,[22] the Act on Professional Soldiers,[23] the Service Act,[24] the Act on Wages[25] and the Act on the Service of Members of the Security Corps.[26] As apparent, the dispersed legislative condition prevails over its unification. The above-mentioned laws bring under their binding control only normative fragments of the principle of equality men and women. Naturally, such a statutory situation inevitably generates legal lacunae, shortcomings and defects what endanger the worth of legal certainty. Furthermore, this rationale is expanded only within the own purpose of those laws. To change this disadvantageous juridical condition, thus a single act on legal means for protection against discrimination and on equal treatment (called an anti-discrimination act) has been recently started drafting. As soon as it will come to force, it may become much more visible for public. Mainly, the draft does not exclusively aim at equal treatment of men and women or at fighting against discrimination of women. Its scope of application is a broader one inasmuch as it comprises all grounds of discrimination that are not put in whatever hierarchy amongst them.[27] Therefore, sincerely speaking, the inclusive ambit of the bill is entirely amplified. For example, discrimination on grounds of sex also incorporates pregnancy, motherhood or sexual identification. As regards the content itself, the draft embraces the definition of key legal concepts, in order to counter indeterminacy, as the ‘right to equal treatment’,[28] ‘discrimination’,[29] direct discrimination,[30] indirect discrimination,[31] harassment,[32] sexual harassment,[33] persecution,[34] instruction to discriminate,[35] or incitement to discriminate.[36] In the civil system of law where judgements have no legal effects as its formal sources, such legislative definitions become binding guidelines of legal and social practices not only for judicial or executive organs but also for natural and legal persons. No doubt, the principle of equal treatment is not understood in absolute terms, it cannot be applied under all circumstances, exemptions therefore are specified by this bill in many provisions. Incidentally, unequal treatment on grounds of pregnancy and motherhood is expressly permitted, i.e. maternity leave or a different retirement age for women. For the principal reason of achieving full equality of men and women, positive actions are allowed by the draft as well. Temporary special measures may be taken in cases of ensuring access to health care, education, or goods or services, including housing, i.e. when a single woman with the child seeks a flat. Besides, the draft provides for in part two legal means of protection against discrimination. First, the person affected by discriminatory conduct is entitled, in particular, to seek judicial protection. As the direct victim of discrimination, he may claim before a court the cessation of continuing discriminatory conduct. The function of cessation is to make an end to such an illegal act. Very close to cessation, there is a further legal consequence of the breach resting in reasonable satisfaction. Satisfaction is rather the remedy for those injuries being frequently of non-material character. Claims for satisfaction may consist in an acknowledgement of the breach, a formal apology or another appropriate modality, if necessary, they may include financial compensation. Second, the bill goes further in the legal protection of victims inasmuch as it lays down actio popularis, of course, conceptualised in a narrower personal scope as concerns those who may sue. Only legal persons are entitled to defend a larger of number of persons affected by discriminatory conduct. In such cases, as a rule, the breach is quite evident but it could be individually proved with difficulty. In terms of institutional dimension, the bill brings novelties. The Centre for Equal Treatment shall be set up as an independent body enjoying relative autonomy from government. By definition, it will not be incorporated in the administrative structure of government. The independent and impartial status of the Centre is fundamentally determined by due performance of its functions. Broader competences and mandate shall be delegated to the Centre operating as an advisory, informational, and enlightening body in matters of equal treatment and protection against discrimination.[37] This institution will provide effective assistance to victims of discrimination, prepare independent studies regarding discrimination, publish analysis in the field of equal treatment, and submit recommendation as regards discrimination. As a necessary condition, free access to the Centre shall be secured. Anyone may contact the institution with a proposal delivered in two ways: in writing or orally. If a submitted proposal meets simple requirements, the Centre institutes proceedings with that proposal.[38] The draft also provides for mediation as an amicable method of solving dispute as to direct or indirect discrimination. The precondition of using mediation is a consensus of both parties and their permanent cooperation. Indeed, the consensus of the parties to the dispute forms an inescapable prerequisite of successful out-of-court solution. One of the results of efficient mediation rests on achieving an agreement between the parties on submitting a petition for conciliation to a court. Nevertheless, the dispute may be solved without an intervention of judicial power. As such, mediation operates as a rather integrating method channelling to reconciliation.[39]
3.4 As suggested above in paragraph (2.5) of this contribution, the specific course of conduct may consist in omission. Such obligations requiring non-active conduct are quite exceptionally embodied into the Convention. Perhaps, one obligation of this sort should be revealed as follows. Article 2, letter (d), as an astonishing provision within the normative context of the Convention, which above all mobilizes, exhorts and stimulates the contracting parties to permanently shape social and legal practices, encompasses the obligation to refrain from engaging in any act or practice of discrimination against women. The passive course of conduct is addressed to the legislative organs of the state just as well as to the executive or judicial organs at all level of state machinery. Any legislative acts must correspond to the objective of eliminating any forms or manifestation of direct and indirect discrimination against women. In this regards, such lawmaking organs are undertaken not to enact laws or regulations that have the effects of creating or perpetuating discrimination against women. When passing the discriminatory law, the legislative organ is consequently obliged to cease the continuing illegal act by amending, rescinding or nullifying this law or its provision. By analogy, the executive or judicial organs are obligated not to make discriminatory decisions directing against women, if discrimination is caused, those organs or their superior bodies must redress such grievances, annul or reverse such decisions. This strict legal requirement flows from the secondary obligation to cease any illegal act.
4. Conventional obligations of ‘result’
4.1 Obligations of ‘result’, which are much more common in international law than in internal law,[40] are mostly involved into the Conventions. By comparison, conventional obligations of ‘result’ do not require a particular course of conduct on the part of specified state organs.[41] They imposed upon the contracting parties the achievement of the required result provided for by the conventional norms. The states parties are free to choose appropriate means that are necessary to fulfilling the commitments. Such freedom of choice is profoundly codetermined by a plethora of social, political, economic or legal circumstances existing in a given state. Beyond doubt, women find themselves in heterogeneous positions in every particular society. It cannot be overlooked that their social and societal situation differs from one state to another state, from one region to another region. Each party cannot ignore this far-reaching fact at all. Hence the state may choose whatever means it deems most appropriate and optimal for achieving a concrete legal or social situation prescribed by the Convention.