Protection of Woman's Rights from the Perspective of International Human Rights Conventions

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By Liu Hainian, translated by Bi Xiaoqing

Women make up half of the world total population. Whether as wife or mother, they always play a very important role in the wellbeing of the family, in the raising of children and in the development of the society. However, for some physiological, social and historical reasons, women have become the largest disadvantaged group in the society. It has been proved that the significance of protecting the rights and interests of women far exceeds that of women's proportion in the total population.

I.

Both Chinese mythology of creation of the world by Pan Gu and the western story about the creation of human beings by God and the Garden of Eden in the Bible show that men and women were equal in the beginning of human history. The research on Iroquois tribes described by Lewis H. Morgan in his book Ancient Society and the investigation by anthropologists on the ethnic minorities in Southwestern part of China show that women once occupied a dominant position in the society in certain periods of human evolution and this phenomenon still exists in Lake Lugu of Dali Prefecture in China's Yunnan Province. Later, women's dominant position was taken away by men only because of some physiological and social reasons. And this transition was a social progress related to the development of the productive force. There is no evidence to show that it was a process of violence struggle like the life-or-death class struggles that followed. However, gradually the situation had changed. Women became dependent on men and gradually turned into their appendants. Some even become men's exclusive or common sex toys.

The traditional Chinese code of moral conduct advocates the Three Cardinal Guides (ruler guides subject, father guides son and husband guides wife) and Five Constant Virtues (benevolence, righteousness, propriety, knowledge and sincerity) and women's Three Obediences (namely, woman was required to obey her father before marriage, and her husband during married life and her sons in widowhood) and Four Virtues (fidelity, physical charm, propriety in speech and efficiency in needle work). From this we can see that, in ancient China, women's status, whether in the society or in the family, were the lowest, even lower than those of their own children. The above traditional ethics were confirmed by law and given the coercive state power during the period Western Zhou Dynasty, about 3,000 years ago, so as to strengthen the dominant position of men and the feudal patriarchal hierarchical order which took the blood relationship as its linkage and monarchical power as its center. Although such legal system was abolished along with the last emperor during the 1911 Revolution, its influence has not been totally eradicated from people's mind even today.

Western countries do not have such a long history of feudal system as in China and other oriental countries and therefore are less severely influenced by ideas of traditional ethics. In ancient times and the Middle Ages, the restraint on women was mainly manifested in the areas of property rights and inheritance, which determined that they were inevitably dependent on men and that their status in the family and society was low. Even after the ideas of freedom, equality and human rights were put forward by modern Enlightenment thinkers and were embodied in laws through the Bourgeois Revolution, women had still been in a powerless position for a long period of time. It was only after the adoption and implementation of the UN Convention on the Political Rights of Women in 1952 that women in major western countries began to enjoy the right to vote and other rights. In some western countries, such rights were not realized until the 1970s.

Examples of low status of women in Chinese and western societies include: in traditional Chinese society, after a girl is marriage to a man, her own name loses significance and she is only called by her husband's family name, such as Mrs. Zhang, Mrs. Wang or Mrs. Li. To avoid mix-up, in formal occasions, her own family name is added to that of her husband's, for example, Mrs. Zhang-Sun, Mrs. Wang-Zhao and Mrs. Li-Zhou. And this change of family name has implications to property rights and personal rights. Today, this phenomenon still exists in some rural areas. I am not sure the practice in today's western countries and Chinese regions of Hong Kong and Taiwan of women using their husbands' family name is influenced by traditional ideas, because some of the women there have very high social status and it is possible that they use their husband's family name only to show their love for their husbands. In general, however, the low status of women is an undisputable fact.

II.

To change this situation and uphold women's rights, international organizations represented by the UN strengthened the protection of the rights and interests of women after the World War II and put the adoption of international conventions and promotion of domestic legislation in this field on their agenda. Although the progress has not been very fast, the coverage of the relevant laws have gradually expanded and the safeguards for women developed from those of general principles to those of specific and concrete safeguards.

1. Increasing Improvement of International Treaties on Women's Rights

On 26 June 1945, in view of the slaughters that occurred during the World War II, especially the slaughter of women and children committed by German Nazis and Japanese militarists, the UN Charter declares at its very beginning that its purpose is: "to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small." Article 1 (3) of the Charter provides that one of the objectives of the UN is: "to achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion."1 On 10 December 1948 the UN adopted the Universal Declaration of Human Rights (UDHR), which, as the first world instrument specialized in safeguarding human rights, greatly expanded and enriched the human rights contents in the UN Charter. In addition to its Preamble, the UDHR contains a total of thirty articles. It reiterates the principle in the UN Charter: "Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."2 The Declaration explicitly lists sex as a prohibited ground for discrimination and in the subsequent articles uses the terms "everyone" or "all" to describe the subjects of human rights so as to emphasize gender equality.

In order to give binding legal force to the principles established in the UDHR, the UN designated a Human Rights Commission to be responsible for the drafting of an international human rights covenant. At the beginning, the Human Rights Commission, guided by the ideology of western countries, drafted a human rights covenant centred on the civil and political rights in the UDHR and submitted it in 1950 to the UN General Assembly for deliberation. The General Assembly was of the opinion that the draft covenant failed to fully reflect the content of the UDHR and therefore needed to be revised and supplemented. Through the efforts made by socialist states and the developing countries, the General Assembly deliberated the two draft covenants submitted by the Human Rights Commission in 1962. On 16 December 1966, after over 10 years of deliberation, the General Assembly adopted the International Covenant on Economic, Social and Cultural rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR) with a vote of 105 to 0.

During the drafting and deliberation of the human rights covenants, the UN General Assembly, in order to adapt to the new situation, adopted the International Convention on the Political Rights of Women in 1952, the Convention on the Nationality of Marriage Women in 1957, and the Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages in 1962. Moreover, the ILO also adopted the Convention on Equal Pay for Work of Equal Value of Men and Women Workers in 1951. The adoption and implementation of the above conventions played a positive role in the safeguarding of women's rights and the contents of these conventions were embodied in the two international human rights covenants adopted in 1966.

The adoption of the two international human rights covenants was of great significance: firstly, the covenants gave legal binding force to the various principles provided for in the UDHR and, together with the UDHR, they became the core instruments of the International Bill of Human Rights; secondly, it further emphasized the indivisibility and interdependence of human rights. For example, the Preamble of the ICESCR points out: "in accordance with the Universal Declaration of Human Rights, the ideal of free human beings enjoying freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his economic, social and cultural rights, as well as his civil and political rights"; thirdly, it took a step further from the UDHR with respect to the safeguarding of women's rights. For example, the UDHR only provides in article 25 that: "Motherhood and childhood are entitled to special care and assistance." Whereas the ICESCR provides in article 10 (2) that "Special protection should be accorded to mothers during a reasonable period before and after childbirth. During such period working mothers should be accorded paid leave or leave with adequate social security benefits." The same Covenant also provides that the States Parties shall ensure "Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work."3 And the ICCPR provides that: "The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant;" and that "Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women;"4 and fourthly, the two covenants each set up a special body to be responsible for the supervision over its implementation and provides that state parties shall submit periodical reports on their implementation of the covenant, thereby providing organizational safeguards for the implementation of the covenant.

Although the two international human rights covenants of 1966 have made special provisions on the protection of women's rights in light of women's physiological characteristics and social responsibilities, the majority of the provisions in the two convents still apply the same standards to different groups and individuals. Needless to say, the two covenants represent historical progresses and their objectives are not easy to achieve. However, these objectives can only be said to be formal equality. In order to achieve equality in reality, it is necessary to adopt special provisions suited to the special needs of different groups of people, including women. In order to safeguard women's rights in light of their special needs, the UN General Assembly adopted in 1967 the Declaration on the Elimination of Discrimination against Women, which points out that: "despite the Charter of the United Nations, the Universal Declaration of Human Rights, the International Covenants on Human Rights and other instruments of the United Nations and the specialized agencies and despite the progress made in the matter of equality of rights, there continues to exist considerable discrimination against women;" that "discrimination against women is incompatible with human dignity and with the welfare of the family and of society" and that "All appropriate measures shall be taken to abolish existing laws, customs, regulations and practices which are discriminatory against women, and to establish adequate legal protection for equal rights of men and women."5 Propelled by this Declaration and the First World Conference on Women, held in Mexico City in 1975, the UN General Assembly adopted in 1979 the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which came into force in 1981.

The Convention, apart from the Preamble, consists of and six parts. In the Preamble it is pointed out that, despite the principles provided for in the UN Charter, the UDHR and a series of other human rights instruments, "extensive discrimination against women continues to exist."6 And such discrimination violates the principles of equality of rights and respect for human dignity, is an obstacle to the participation of women, on equal terms with men, in the political, social, economic and cultural life of their countries, hampers the growth of the prosperity of society and the family and makes more difficult the full development of the potentialities of women in the service of their countries and of humanity. In view of this situation, the General Assembly is determined to implement through the Convention "the principles set forth in the Declaration on the Elimination of Discrimination against Women". The first part of the Convention defines the term "discrimination against women" as "any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field," and provides for the general obligations of state parties with respect to the elimination of discrimination against women, including adoption of corresponding legislative, publicity and educational measures. In the second part, state parties are required to adopt all appropriate measures to eliminate discrimination against women in the political and public life of the country and, in particular, to ensure to women, on equal terms with men, the right to vote, to hold public office, to represent their Governments at the international level and to acquire, change or retain their nationality. In the third part, the Convention requires state parties to eliminate discrimination against women in the field of education, employment, social security and health care. They must ensure that women have equal rights with men in pre-school, general, technical, professional and higher technical education, as well as in all types of vocational training; that they are not discriminated against in the field of employment, especially on grounds of marriage, pregnancy, and child birth; and that they have the right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction; state parties must prevent discrimination against women on the grounds of marriage or maternity and to ensure their effective right to work; prohibit, subject to the imposition of sanctions, dismissal on the grounds of pregnancy or of maternity leave and discrimination in dismissals on the basis of marital status; introduce maternity leave with pay or with comparable social benefits without loss of former employment, seniority or social allowances; and provide special protection to women during pregnancy in types of work proved to be harmful to them. This part of the Convention also provides for the elimination of discrimination against rural women, and for the preferential treatment for rural women in such matters as health care, family planning, cultural and vocational training, and access to agricultural credit and loans. The fourth part of the Convention requires state parties to prohibit discrimination against women in the areas of family, marriage, property rights, and education of children, and accord to women a legal capacity identical to that of men in the movement of persons and the freedom to choose residence and domicile, management of family and other civil matters. In case of dispute, men and women shall be treated equally in all stages of procedure in courts and tribunals. Part five of the Convention establishes a Committee on the Elimination of Discrimination against Women, to be responsible for the supervision over the implementation of the Convention. The members of the Committee shall be elected for a term of four years. According to the article 18 of the Convention, States Parties undertake to submit to the Secretary-General of the United Nations, for consideration by the Committee, a report on the legislative, judicial, administrative or other measures which they have adopted to give effect to the provisions of the Convention and on the progress made in this respect: (a) Within one year after the entry into force for the State concerned; (b) Thereafter at least every four years and further whenever the Committee so requests. Part six of the Convention deals with matters relating to the ratification of the procedure of the Convention. It is noteworthy that article 23 of the Convention provides that: "Nothing in the present Convention shall affect any provisions that are more conducive to the achievement of equality between men and women which may be contained: (a) In the legislation of a State Party; or (b) In any other international convention, treaty or agreement in force for that State."7

The CEDAW is a specialized Convention on the protection of women's rights adopted by the UN after the adoption of the two international human rights covenants in 1966. On the basis of the principle of the equal rights of men and women provided for in a series of international human rights instruments, the CEDAW provides some positive measures in light of the fact that women are more likely to be subjected to various forms of discrimination because of their physiological characteristics and their low status in the family and the society, thereby taking an important step towards the realization of not only de jure equality but also de facto equality between men and women. In December 1993, the UN General Assembly, in order to strengthen and supplement the CEDAW, adopted the Declaration on the Elimination of Violence against Women, which requires governments to adopt effective measures to eliminate the physical and psychological violence against women occurring in public or in private life and to punish perpetrators of such violence.

2. Vigorous Promotion by World Conferences on Women

Promoted by the UN and people around the world, especially by women in different countries, the system of international instruments on the protection of women's rights becomes increasingly complete. From the historical process and current practice we can see that the four world conferences on women held since 1975 have played an important historical role in the improvement of international instruments on the protection of women's rights and in the enrichment of theory and practice of women's rights.

The First Word Conference on Women, held in the Mexico City in 1975, adopted the Declaration of Mexico on the Equality of Women and Their Contribution to Development and Peace, which points out that the problems of women, who constitute half of the world's population, are the problems of society as a whole and that women played an important role in the history of humanity, especially in the struggle for national liberation, the strengthening of international peace, and the elimination of imperialism, colonialism, neo-colonialism, foreign occupation, Zionism, alien domination, racism and apartheid, stressing that greater and equal participation of women at all levels of decision-making shall decisively contribute to accelerating the pace of development and the maintenance of peace; that discrimination against women has prevented and will continue to prevent women from giving full play to their role; and that the changes in the economic structure of the societies, although are the prerequisites for resolving practical problems and improving women's conditions, "cannot of themselves ensure an immediate improvement in the status of a group which has long been disadvantaged", therefore, specific measures need to be undertaken in order to eliminate all forms of discrimination against women. The Mexico City Declaration requires that urgent consideration must be given to the full, immediate and early integration of women into national and international life. To achieve this goal, further efforts must be made to eliminate discrimination against women in areas of family life, property relations, child-raising, cultural and vocational education, employment, promotion, wage and welfare, so as to realize the equal rights of man and woman in the family, the society, and in very areas of national and international life. The Declaration especially points out that: "Equality between women and men means equality in their dignity and worth as human beings as well as equality in their rights, opportunities and responsibilities."8 It was based on this understanding that the Declaration of the Mexico City has played an important role in promoting the 1979 UN Convention on the Elimination of All Forms of Discrimination against Women. At the Conference it was decided to establish two special bodies on women's affairs with the UN: Research and Training Institute for the Advancement of Women and United Nations Development Fund for Women. The Conference also adopted Programme of Action for the United Nations Decade for Women (1976-1985): Equality, Development and Peace, which provided a blue print for women's participation in national and international activities and the comprehensive development of the society.

The Second World Conference on Women was held in Copenhagen in 1980. The main subject of discussion at this Conference was to evaluate the progresses made in implementing the Declaration of Mexico and the Programme of Action and adjust various programmes in the second half of the Programme of Action for the United Nations Decade for Women in light of the new situations. The Conference adopted the Programme of Action for the Second Half of the United Nations Decade for Women: Equality, Development and Peace, which pointed out that the principles and goals of equality, development and peace established at the First World Conference on Women were feasible and constituted the basis of the activities of the UN Decade for Women. The Conference especially pointed out that equality means not only legal equality or elimination discrimination in law, but also the right, responsibility and opportunity of women to participate in the development process as agents and beneficiaries of development. The so-called development refers to the comprehensive development of politics, economy, society, culture and human life, including the development of economic resources and the physical, moral, intellectual, and cultural growth. In order to realize comprehensive development, actions must be taken at the national, local and family levels. And peace and stability are also indispensable to development. The dialectic relations between development, equality and peace are as the following: without development, it is not possible to eliminate discrimination and realize equality or last peace. The realization of equality, development and peace is also conducive to the struggle against imperialism, colonialism and neo-colonialism, Zionism, racism, apartheid, hegemonism, alien domination and oppression. Although development is important, it should be regarded not as a goal in itself, but as an important means for maintaining peace and promoting equality between men and women. Its ultimate objective is to achieve gender equality. The Second World Conference on Women, based on the summarization of the first five years of implementation of the Programme of Action for the United Nations Decade for Women, adopted Programme of Action for the Second Half of the United Nations Decade for Women, which urged governments to adopt laws and policies to increase women's participation in political and other decision-making processes, speed up the implementation of the strategy for women's full participation in economic and social development, and resolve their problems in employment, health care, education and training. Special attention should be paid to the special problems faced by rural women, migrant women, unemployed women and young women.9

The Third World Conference on Women was held in Nairobi in 1985 and was participated by representatives from 157 countries. The final document adopted by the Conference, the Nairobi Forward Looking Strategies for the Advancement of Women, pointed out that the inequality of women in most countries stems to a very large extent from mass poverty and the general backwardness of the majority of the world's population caused by underdevelopment, which is a product of imperialism, colonialism, neo-colonialism, apartheid, racism, racial discrimination and of unjust international economic relations. And the unfavourable status of women is aggravated in many countries, developed and underdeveloped, by de facto discrimination on the grounds of sex. One of the fundamental obstacles to women's equality is that de facto discrimination and inequality in the status of women and men derive from larger social, economic, political and cultural factors that have been justified on the basis of physiological differences and result in the denial of equal access to the power structure that controls society and determines development issues and peace initiatives. Ultimately, society is the loser if the talents of women are under-utilized as a result of discrimination. The Nairobi Forward Looking Strategies pointed out that, law-making is a crucial factor in the realization of gender equality because it provides legal basis for the adoption of actions and promotes social changes. However, it should be noted that the sharp contrasts between legislative changes and effective implementation of these changes are a major obstacle to the full participation of women in society. Therefore, governments should strengthen the implementation of the relevant laws. The Conference once again showed concern for disadvantaged women, including rural and urban poor women, women in areas affected by natural disaster; women deprived of their traditional means of livelihood, women who are sole supporters of families, physically and mentally disabled women, women in detention and women who have committed crimes, refugee and displaced women, migrant women, etc. Among the various measures for the safeguarding of women's rights, the Nairobi Forward Looking Strategies laid special emphasis on the equal participation by women in public affairs at the national and international levels and further developed the ideological understanding that had gradually taken form since the First World Conference on Women, namely: although solving the practical problems faced by women and improving their status are the prerequisite for the solution of women's problem, the most fundamental solution is to enable women to participate in public life at national and international levels. The objectives of equality, development and peace can be achieved only through equal participation by women. Thus, the Strategies clearly changed the past approach of only taking social welfare as the main measure for supporting women and improving their status, emphasized women's role as the participants, decision-makers, contributors and beneficiaries of social development, and enabled them to enter into the mainstream of social, economic, political and cultural development.10

The Fourth World Conference on Women was held in Beijing in 1995, on the occasion of the 50 years anniversary of the establishment of the United Nations. It was a grand event of unprecedented scale, participated by government and NGO representatives from 189 countries. Meanwhile, about 30,000 people participated in NGO forums with wide range of topics, including women and poverty, education and training of women, women and health, women and armed conflicts, women and economy, women in power and decision-making, institutional mechanism for the advancement of women, women and human rights, women and the media, and women and the environment. The Beijing Declaration and Platform for Action adopted at the Conference reviewed the progress of the United Nations Decade for Women (1976-1985) since the Firth World Conference on Women in 1975, evaluated the implementation of the Convention on the Elimination of All Forms of Discrimination against Women adopted by the UN General Assembly in 1979, and especially examined the achievements and obstacles encountered by governments in the implementation of the Nairobi Forward Looking Strategies for the Advancement of Women, which was adopted at the Third World Conference on Women in 1985. The Platform for Action confirmed that, through the efforts made by governments and the international community, "there has been important progress in achieving equality between women and men. Many Governments have enacted legislation to promote equality between women and men and have established national machineries to ensure the mainstreaming of gender perspectives in all spheres of society. International agencies have focused greater attention on women's status and roles." Meanwhile, the Platform for Action pointed out various obstacles to the further realization of equality between women and men. They mainly include: the imbalance in the development of rights between different groups of women; continuing environmental degradation that affects all human lives, especially women; more than 1 billion people in the world today, the great majority of whom are women, living in unacceptable conditions of poverty; armed conflicts and terrorism that resulted in large number of casualties, especially among women; the legislation on the equality between men and women in many countries need to be further improved and, whether in family or society, traditional or customary practices incompatible with law still exerting serious influence on people's mind and systems; women having much less cultural and technical training than men; serious inadequacies in health care available to women, etc. The Platform of Action expounded on the manifestations and causes of problems relating to "women and poverty", "education and training of women", "women and health care", "violence against women", and "mechanisms for the advancement of women" as well as measures to be adopted for the solution of these problems. It also raised demands and appeals to governments and the UN with regard to these issues. The Beijing Declaration and Platform for Action, after summarizing the historical process in the 20 years since the First World Conference on Women, further strengthened and developed the idea that gender perspectives should be mainstreamed in all spheres of society so that it can be declared to the world that "women's rights are human rights." The human rights of women and girl children are an inalienable, indispensable and inderogable part of human rights and fundamental freedom of all human beings. Only by safeguarding women's rights, realizing gender equality and transforming the relationship between men and women into that of an equality partnership can the mankind meet the challenges of the 21st century and fully realize political, social, economic, and cultural rights.11

3. The Important Role of a Series of Special International Conferences and Declarations

In the process of organizing the four world conferences on women, the UN and the relevant international organizations had held a series of conferences and adopted a series of resolutions and declarations on the relevant human rights, which have played an important role in safeguarding women's rights. These declarations and conferences include: Resolution on the New Concepts of Human Rights, adopted by the UN General Assembly in 1977; the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, adopted by the UN General Assembly in 1981; the Convention concerning the Promotion of Collective Bargaining, adopted by the ILO in 1983; the Convention concerning Indigenous and Tribal Peoples in Independent Countries and the Employment Promotion and Protection against Unemployment Convention, adopted by the ILO in 1989; the World Summit for Children, held in New York in 1990; the United Nations Conference on Environment and Development, held in Rio de Janeiro in 1992; the Vienna Declaration and Programme of Action, adopted by the World Conference on Human Rights in Vienna in 1993; and the World Summit for Social Development, held in Copenhagen in 1995, all of them have greatly promoted, either directly or indirectly, the realization of women's rights and the equality between men and women.

III.

Promoted by international human rights conventions, especially by conventions and instruments on women's rights, China has made great progress in improving its legal system for the safeguarding of women's rights. Since Chinese women make up about 1/5 of the total population of women in the world, the perfection of the legal system for the safeguarding the rights of Chinese women is not only of great importance to human rights protection in China, but also a great contribution to international protection of women's rights.

As mentioned before, in history, Chinese women had very low status both in family and society. They suffered from multiple oppressions and led miserable life. In 1911, in a revolution led by Dr. Sun Yat-sen, the feudal system that had lasted for over 2,000 years was overthrown and the last emperor abolished. The Provisional Constitution of the Republic of China, adopted in 1912, provided that: "All people in the Republic of China are equal"12 and this provision was retained in the 1913 (Draft) Constitution of the Temple of Heaven, the 1914 Provisional Constitution of the Republic of China and the 1923 Constitution of the Republic of China. However, it is not clear whether the concept of "people" covered women at that time, let only whether this constitutional provision was implement in real life. It was not until in 1930 and 1931 that the equality between men and women was provided for in the Draft Constitution of Republic of China adopted at the Taiyuan Enlarged Conference and in the Provisional Constitution of the Republic of China During the Period of Tutelage and it was the "Red Political Power" established by the Chinese Communist Party after 1927 that really promoted the protection of women's rights in China. The Outline Constitution of the Soviet Republic of China of 1931 and the Draft Outline of the Basic Law (Constitution) of the Soviet Republic of China adopted earlier contained unprecedented specific and clear provisions on women's rights. The Draft Outline provided that: one of the constitutional principles of the Soviet Republic was: "not only to completely realize the liberation of woman, adopt laws on the reasonable gender and family relationships not restrained by patriarchal feudal relations and religious superstition, and recognize the freedom of marriage and divorce, but also implement measures to protect women and mothers, develop science and technology, and truly enable women to have the material basis to free themselves from household duties and take job in the society."13 And the Outline Constitution provided that: "The Chinese Soviet political power takes the complete liberation of women as its aim, recognizes the freedom of marriage, implement various measures to protect women, and enable women to obtain the material basis to be free from household duties and take part in the economic, political and cultural life of the society."14 Although the provisions in these constitutional documents adopted by the political power of red revolutionary bases during the Second National Revolutionary War were not fully implemented due to such factors as the war situation, the lack of material conditions, and the small scale of the revolutionary bases, their spirit was later embodied in the relevant laws of anti-Japanese bases and liberated areas. It was exact this spirit and the laws made in accordance with this spirit that ensured the liberation of the broad masses of women in China, who became a major force in China's struggle against western powers, Japanese militarism and domestic reactionaries, and made great contribution to the independence of the Chinese nation and the liberation of Chinese people.

With the establishment of the new China in 1949, a new chapter was opened in the safeguarding of women's rights in China. The 1949 Common Programme of the Chinese People's Political Consultative Conference, which served as a temporary constitution at that time, provided that: "The People's Republic of China abolishes the feudal system that has fettered Chinese women. Women enjoy equal rights with men in political, economic, cultural, educational and all other aspects of social life. The system of freedom of marriage shall be implemented." 15 Based on the Common Programme, the 1954 Constitution of the People's Republic of China provided that: "All citizens of the People's Republic of China shall be equal before the law;" and that: "All citizens who have reached the age of 18, regardly of their ethnic origin, race, sex, occupation, birth, religious belief, level education, property, or year of residence, have the right to vote and the right to stand for election." The principle of equality between men and women confirmed in the Common Programme was later concretely embodied in the Marriage Law and the Land Reform Law adopted in 1950 and the Election Law adopted in 1953. To implement these laws, the Chinese government lauched large-scale publicity and education campagins and mass movements of great momentum, which drastically improved the status of women. The implementation of the 1954 Constitution further strengthened and promoted this strend of development. However, during the 1960s and 1970s, the development women's rights, like that of all the other rights of Chinese people, was impeded by such factors as historical conditions, the levels of social, economic, political and cultural development, and political movements.

After 1978, in the process of reform and opening up, the strengthening of socialist democracy and the legal system, the development of socialist market economy, and the construction of socialism with Chinese characteristics, there have been significant development of the cause of safeguarding the rights of Chinese women and human rights in general in China. Based on the 1954 Constitution, the 1982 Constitution further strengthened the protection of human rights: it gave "The Foundamental Rights and Duties of Citizens" a more prominent position by moving it from Chapter Three to Chapter Two and, through a constitutional amendment, recognized the principles of "ruling the country by law and construction of a socialist state under the rule of law" and "The state respects and protects human rights". During this period, the Marriage Law was amended twice in 1980 and 2001, the Inheritance Law was adopted in 1985, and the Trade Union Law was revised in 1992. These laws contain clear provisions on the freedom of marriage, the equality between men and women in marriage relation, the equal right between men and women in such matters as inheritance, raising of children, the support for the elderly, and the division of property at divorce, equal employment opportunity and special protections for women in light of their special physiological conditions. It should be specially pointed out that, after the ratification of the UN Convention on the Elimination of All Forms of Discrimination against Women, China has actively improved its legal system for the safeguarding of women's rights: the Law on the Protection of the Rights and Interests of Women was adopted by the National People's Congress in April 1992 and amended by the Standing Committee of the National People's Congress in 2005.

The Law on the Protection of the Rights and Interests of Women, by summarizing the domestic and foreign experiences in the protection of the rights and interests of women, makes comprehensive stipulations on the protection of women. The Law points out at its very beginning that: "Equality between men and women is a basic State policy." The state promotes the equality between men and women, safeguards the lawful rights and interests of women, protects their special rights and interest, eliminates all forms of discrimination against them, and prohibits maltreatment, abandonment, and physical abuse of women. Under the guidance of this general principle, the Law provides in various chapters the political, cultural, educational, labour, social security, property, personal, marriage and family rights that women should enjoy on an equal footing with men. Firstly, women enjoy equal political rights with men. Women have the right to conduct state affairs, manage economic and cultural undertakings and administer social affairs through various channels and in various ways and they enjoy the equal right, with men, to vote and to stand for election. To realize these rights, the Law provides that there shall be an appropriate number of women deputies among deputies to the National People's Congress and local people's congresses at various levels and there should be appropriate number of women among the members of the residents' committees and villagers' committees. The state shall actively train and select female cadres. State organs, public organizations, enterprises and public institutions must, in training, selecting and appointing cadres, adhere to the principle of equality between men and women, and create condition for women to participate in the making of laws and public policies. Secondly, women enjoy equal rights with men with respect to culture and education. Schools and departments concerned shall, by implementing the relevant regulations of the state, guarantee that women enjoy equal rights with men in such aspects as starting school, entering a higher school, job assignment upon graduation, conferment of academic degrees and dispatch for study abroad and in their participation in scientific, technological, literary, artistic and other cultural activities. The government, society and schools shall take effective measures to solve the actual difficulties for the female school-age children to receive education and shall create chances to ensure the female school-age children among the poor, disabled and migrant population to finish the compulsory education and technical training. Thirdly, women enjoy the same labour and social security rights as men do. These rights include equal employment right, right to equal pay for work of equal value, rights relating to promotion in post or in rank, evaluation and determination of professional and technological titles, the right to safe and healthy work environment, the right to social security, the right to special labour protection during menstrual period, pregnancy, obstetrical period and nursing period; no entity may, for the reason of matrimony, pregnancy, maternity leave or breast-feeding, decrease a female employee's wage, dismiss her or unilaterally terminate the labour (employment) contract or service agreement; and no entity may discriminate against women for the reason of gender when implementing the retirement system of the state. Fourthly, women enjoy the equal right, with men, to property. In joint property relationship derived from marriage or family, the rights and interests enjoyed by women according to law may not be infringed upon. Widowed women shall have the right to disposed of the property they have lawfully inherited and no one may interfere with such right. Women shall enjoy equal rights with men in the contracted management of rural land, distribution of proceeds of collective economic organizations, use of land, requisition and occupation compensations and use of house sites. No organization or individual may infringe upon a woman's rights and interests in the rural collective economic organization on the ground that she hasn't got married, is married, is divorced or has lost her spouse. Fifthly, women enjoy the same right of person as men do. Women's rights to life, health, personal freedom, reputation, honour, and portrait shall not be violated; drowning, abandoning or cruel infanticide in any manner of female babies, abduction of and trafficking in, or kidnapping of women, sexual harassment or indecent acts against of women, and prostitution and whoring are prohibited; and it is prohibited to organize, force or induce women to engage in obscene performances. Sixthly, women enjoy equal rights with men in marriage and family. Women shall enjoy the freedom of marriage and divorce. A woman shall enjoy equal rights with her spouse in possessing, utilizing, profiting from and disposing of the property jointly possessed by the husband and wife according to law. Domestic violence against women is prohibited. Both parents shall enjoy the equal right to guardianship of their minor child (children). At the time of divorce, the husband and the wife shall seek agreement regarding the disposition of their jointly possessed houses; if they fail to reach an agreement, the people's court shall make a judgment in light of the actual circumstances of both parties and according to the principle of showing consideration for their child (children) and for the rights and interests of the wife.16

Through the summarization of domestic and international laws and practices relating to the protection of women's rights, China has been continuously improving its laws on the protection of the rights and interests of women. The State Council Working Committee on Women and Children is responsible for the supervision over the implementation of these laws. Many foreign friends admire the Chinese government for carrying on its glorious tradition of the revolutionary era by establishing women's federations-powerful organizations responsible for the safeguarding of women's rights and interests-at the central and various local levels. The Law on the Protection of the Rights and Interests of Women provides that "the All-China Women's Federation and women's federations at various levels shall, in accordance with the laws and charter of the All-China Women's Federation, represent and uphold the rights of women of all nationalities and all walks of life, and strive for the protection of women's rights and interests;" that "when a woman's lawful rights and interests are infringed upon, she may file a complaint with a women's organization, which shall require the relevant department or entity to investigate and deal with the case;" and that "a women's organization shall support the women victims who need help in litigation." Apparently, the above powers of women's federations given by state law exceed those of ordinary social organizations. Because of the legal support, these organizations are playing an important role in protecting women's rights and interests and consequently are affectionately called by the broad masses of Chinese women as their "parents' home".

From the above we can see that, after long period of struggle, the women's issue has been mainstreamed in the public policy and state life in China. Not only the state has adopted national programme for the development of women, but the law also requires local governments at various levels to adopt programmes for the development of women in their respective administrative areas in accordance with the national programme and incorporate them into national economic and social development plan. The effective measures adopted by the state have created the necessary condition for women to exercise their rights in accordance with law. Governments at all levels should attach importance to and strengthen the work of safeguarding women's rights and interests. The Law on the Protection of the Rights and Interests of Women have provided in many articles for the legal responsibilities for violations of women's rights and interests. Anyone who infringes upon women's rights and interests shall, in light of the severeness of the consequences of the violation, bear legal responsibilities. Those whose acts of violation constitute crimes shall be investigated for criminal responsiblities. An accountability system for state organs and their staff have also been established: "If a state organ or any of its staff members fails to perform its (his) duties, fails to stop an infringements upon the rights and interests of a woman or fails to give necessary help to a woman victim and thus causes any serious consequences, the entity of the aforesaid staff member or the superior organ shall give an administrative sanction to the directly liable person-in-charge and other directly liable persons."17

Thanks to a complete system of laws and effective implementation of these laws, China has been making continuous progress in the safeguarding of women's rights and interests. However, there are still gaps between the actual situation of women's rights in China and the requirements of international human rights conventions and the relevant Chinese laws. Take the right to social security as an example. Because of the differences in the level of development between different regions, between rural and urban areas, and between different social strata in rural and urban areas, there exist big gaps in the level of social security enjoyed by women in different areas and different strata of society. The tradition of son preference still affects a large number of people, resulting in frequent family conflicts and huge social problems related to gender imbalance. The drop-out rate among school-age girls is higher than that among school-age boys, especially in rural, remote and mountainous areas, where some girls are still unable to finish the nine-year compulsory education. Low educational level has affected women's employment opportunity and their further development in the fields of science and technology: currently the proportion of women is lower than that of men among senior scientists, technicians, and civil servants. Although the coverage of medical security is gradually expanding throughout the country, the situation of low level of medical security still can not be changed in a short period of time and many women are still faced with the difficulties in acquiring qualified medical care. Moreover, with respect to personal rights, the number of women subjected to sexual harassment and violence, including domestic violence, is still very large.

The existence of the above problems affects not only the realization of women's rights and interests, but also domestic happiness, social harmony, and socialist construction and, therefore, must be attached great importance by the whole society. The solution to this problem is of course the rule of law. Governments at various levels and the relevant social organizations should take further steps to truly implement the relevant laws so as to gradually raise the level of the protection of women's rights and interests in China.


1Collection of Human Rights Instruments in the World, Chengdu: Sichuan People's Publishing House, 1990, pp. 928-928.

2See International Human Rights Instruments and International Human Rights Bodies, Beijing: Social Sciences Documentation Publishing House, 1993.

3 Ibid., pp.12 and 14.

4Ibid., pp.23 and 25.

5Ibid., p. 120.

6Ibid., p. 125.

7Ibid., p. 126-136.

8See Declaration of Mexico on the Equality of Women and Their Contribution to Development and Peace.

9For the above contents and citations, see Programme of Action for the Second Half of the United Nations Decade for Women: Equality, Development and Peace.

10 For the above contents and citations, see Nairobi Forward-Looking Strategies for the Advancement of Women to the Year 2000.

11For the above contents and citations, see The Beijing Declaration and Platform for Action, adopted at the Fourth World Conference on Women in 1995.

12 See The Provisional Constitution of the Republic of China, in supra note 1, p.740.

13 See the Draft Outline of the Basic Law (Constitution) of the Soviet Republic of China, in supra note 1, p.777.

14 Ibid., p. 779.

15 Ibid., p. 811.

16 The above contents are cited from the Law on the Protection of the Rights and Interests of Women.

17 See article 57 of the Law on the Protection of the Rights and Interests of Women.