Home»Topic Guide»Legal framework and access to justice
GenderAnn Kangas; Huma Haider; Erika Fraser; Evie Browne
Topic Guide, July 2015
Legal framework and access to justice
Introduction: legal framework for women's rights and access to justice
International legal frameworks
Other relevant international instruments
Women's subordinate position in society is reflected in many national legal systems. Women and girls often face discrimination with regard to family law, property and inheritance rights and employment. Women also frequently face difficulties accessing justice institutions. Poverty is a considerable barrier for women, who are more likely than men to have limited access to resources and thus face higher levels of poverty. Women also face institutional barriers to access justice. Few women are represented in male-dominated judicial and security institutions. Male staff, including police officers, prosecutors and judges, can deter women from reporting disputes or crimes. Especially sensitive issues such as domestic violence and rape are likely to go unreported due to fear of shame and stigma.
Women are not a homogenous group. In addition to poverty and gender inequality, they are also subject to discrimination on the basis of age, ethnic group, religion and disability. This intersectionality of discrimination is important when looking at women's access to rights. Facing multiple discriminations at any one time makes it more difficult for women and men to access their rights.
A number of international instruments exist to address the disproportionate discrimination faced by women and girls. The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) provides the overarching framework for these.
Banda, F. (2008). 'Laws that Discriminate against Women', Report commissioned by Office of the High Commissioner for Human Rights (OHCHR)
See full text
Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)
CEDAW was adopted by the United Nations General Assembly in 1979 and has since been ratified by 187 out of 194 countries (the remaining countries are Iran, Palau, Somalia, Sudan, South Sudan, Tonga, and the United States). The convention requires states to take action 'in all fields, in particular in the political, social, economic and cultural fields, all appropriate measures, including legislation, to ensure the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men' (article 3). State parties to CEDAW are required to submit a report to the CEDAW Committee every four years outlining progress and achievements. The Committee then provides recommendations. This implementation and review process ensures a constructive dialogue takes place to tailor the implementation of CEDAW according to local conditions.
CEDAW has been used worldwide by state actors to revise constitutions, change discriminatory laws and policies, support the creation of new legislation and influence court decisions. It has also been used by civil society, including women's rights organisations, to advocate for change in legislation or policy, to raise awareness of issues of importance from the local to the global level, and to build the capacity of key actors to deliver on CEDAW's standards. However, the implementation of CEDAW is complicated by a lack of political will, which has resulted in a number of reservations against its full implementation by ratifying states.
In 1999, the General Assembly adopted an Optional Protocol to CEDAW. This allows individuals of CEDAW ratified states to bring complaints directly to the CEDAW Committee. The Optional Protocol provides an avenue for the Committee to comment on individual cases and was instigated under the assumption that a complaints procedure would encourage states to implement CEDAW.
See the full text of CEDAW and the Optional Protocol.
Byrnes, A., & Freeman, M. (2012). 'The Impact of the CEDAW Convention: Paths to Equality'. A Study for the World Bank.
What is the impact of CEDAW? There is evidence that it has contributed to women's rights equality in many countries. The paper provides a close examination of Fiji; Maldives; Lao People's Democratic Republic; Rwanda; Kenya; Ecuador; Venezuela; Serbia; Bangladesh; Kyrgyzstan; Morocco; and Singapore. The report concludes that change has been slow. Domestic NGOs have played a crucial role in reforms and pressuring governments.
The following resources provide case studies on the implementation of CEDAW.
Pasqual, L. (2009). 'Time for Action: Implementing CEDAW in Southeast Asia', UNIFEM, Bangkok
This book provides a number of case studies from Southeast Asia, including both government and civil society actors. It shows how CEDAW has been used to advocate for stronger legal frameworks; to sensitise the justice system to protect the rights of women; and to guide local development and budget allocation processes.
Sisters in Islam. (2011). 'CEDAW and Muslim Family Laws: In Search of Common Ground', Musawah, Selangor, Malaysia
This report documents the trends identified in the Musawah research project, which examined justifications of state failure to implement CEDAW with regard to family laws and practices that discriminate against Muslim women. The research reviewed documents for 44 Muslim majority and minority countries that reported to the CEDAW Committee from 2005-2010.
The United Nations Security Council Resolution (SCR) 1325 was the first resolution on women, peace and security adopted by the UN Security Council. It recognises the unique impact of armed conflict on women and acknowledges the contributions made by women to conflict resolution and peacebuilding. Since its adoption in 2000, the SCR 1325 has been followed by a number of other supporting resolutions drawing attention to specific areas such as sexual violence in conflict (SCR 1820 and 1888) and increasing the number of women in peacebuilding and peacekeeping missions (1889).
Implementation of these SCRs has been inconsistent. The increase in uniformed female peacekeepers has challenged existing gender stereotypes in some contexts. The participation of women as voters and political candidates has also increased in post-conflict contexts. However, gender balance among peacekeeping personnel is widely off the target of 50 per cent women. Women's roles in peace negotiations and peace agreements continue to be extremely marginal; senior female figures are rarely involved and female members of civil society are particularly marginalised. The deliberate strategy of using sexual violence in areas of conflict still occurs with impunity.
See the full text of the SCR 1325, 1820, 1888 and 1889.
United Nations. (2010). 'Ten-year Impact Study on Implementation of UN Security Council Resolution 1325 (2000) on Women, Peace and Security in Peacekeeping', Final Report to the United Nations Department of Peacekeeping Operations, Department of Field Support
This impact study covers 12 UN peacekeeping operations in 11 countries. There has been little success in including more women in peace negotiations, but there has been a significant increase in women's political participation. There has only been modest success in including women in disarmament, demobilisation and reintegration programmes. Uniformed female peacekeepers have had a positive effect, but there are still few of them. Legal and judicial reforms have made progress but it is unclear how much real impact this has. Sexual and gender-based violence still continues with impunity, although there is greater awareness and better legal structures in place. Female IDPs continue to feel unsafe and to be under-represented in camp management structures. Staff still lack solid gender understanding, and rely on their few gender specialists to manage their programmes.
Special Issue: A Systematic Understanding of Gender, Peace, and Security—Implementing UNSCR 1325. International Interactions, Empirical and Theoretical Research in International Relations, Volume 39, Issue 4. (2013).
This special issue examines different facets of the implementation of UNSCR 1325. The articles offer insight into how to improve our understanding through research. It appears that the resolution has been only patchily implemented, and that gender mainstreaming could be improved.
For further discussion and resources on SCR 1325 and women's roles in peace negotiations and peace agreements, see the chapter on 'Gender, Statebuilding and Peacebuilding'.
Convention of the Rights of the Child (CRC) (1989)
The Convention on the Rights of the Child outlines specific protection for girls and boys under the age of 18. It is used more widely to ensure the protection of the girl child, who is more likely to have her rights violated through harmful traditional practices such as female genital mutilation/cutting (FGM/C) and early marriage.
International Labour Organization (ILO) conventions
ILO conventions which are particularly relevant to women's employment include:
C100 Equal Remuneration Convention, 1951
C111 Discrimination (Employment and Occupation) Convention, 1958
C183 Maternity Protection Convention, 2000
Abolition of Forced Labour Convention, 1957 (No. 105)
Worst Forms of Child Labour Convention, 1999 (No. 182)
The Domestic Workers Convention (No. 189) and Recommendation (No. 201), 2011
Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children
This Protocol supplements the United Nations Convention against Transnational Organized Crime.
International Covenant on Civil and Political Rights (ICCPR) (1966)
The ICCPR is a multilateral treaty adopted by the United Nations General Assembly. It commits states parties to the Covenant to respect the various civil and political rights of individuals, such as the right to life; freedom of religion, speech and assembly; and rights to due process and a fair trial. Article 2 requires that the rights are recognised without distinction of any kind, such as sex. Article 3 requires that men and women have equal right to the enjoyment of the rights set forth in the Covenant.
International Covenant on Economic, Social and Cultural Rights (ICESR) (1966)
The ICESR is a multilateral treaty also adopted by the United Nations General Assembly. It commits states parties to the Covenant to respect the various economic, social and cultural rights of individuals, including labour rights; the right to health; the right to education; and the right to an adequate standard of living. It contains the same provisions in Article 2 and 3 as the ICCPR with respect to non-discrimination based on sex and equal enjoyment of rights by men and women.
Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (1985)
See the full text of the Declaration.
Regional Agreements and Conventions
African Union – Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa
African (Banjul) Charter on Human and Peoples' Rights
Declaration on Gender Equality in Africa (ECA)
Adoption and Implementation of the Inter-American Program on the Promotion of Women's Human Rights and Gender Equity and Equality
Economic and Social Commission for Asia and the Pacific – 10-year Review of the Beijing Platform for Action (ESCAP)
Revised Pacific Platform for Action on the Advancement of Women and Gender Equality (PPA) 2005-2015
Council of the League of Arab States, Arab Charter on Human Rights
Case studies and good practice
Forster, C. And Jivan, V. (2009). 'Gender Equality Laws: Global Good Practice and a Review of Five Southeast Asian Countries', UNIFEM, Bangkok
This paper published by UNIFEM provides a comprehensive overview of gender equality law in practice. It reflects CEDAW good practice principles set by nation states and aims to assist actors, public and private, government and non government, in both the development of new gender equality laws and the implementation of existing gender equality laws.
See full text.
For further discussion, see the OHCHR's women's rights and gender website.
Justice sector institutions, both formal and informal, are central to the legal protection and enforcement of human rights. Despite the recent expansion of women's legal entitlements, women are being failed by discriminations and gender biases within the infrastructure of justice – the police, the courts and the judiciary. Structural inequalities also act as a barrier to justice, for example lack of time, confidence, literacy, and access to information.
UN Women (2011). 'Progress of the World's Women: In Pursuit of Justice', UN Women, New York
This report explores how justice systems can be made to work for women. Where laws and justice systems work well, they can provide an essential mechanism for women to realise their human rights. However, laws and justice systems that reinforce unequal power relations must be transformed in order to fulfil the potential they hold for accelerating progress towards gender equality. Women themselves, as legislators, lawyers, judges, paralegals and community activists are often at the forefront of transformation efforts.
UNDP Regional Centre for Asia Pacific. (2010). 'Advancing Legal Rights' in UNDP 2010 Asia-Pacific Human Development Report: Power, Voice and Rights: A Turning Point for Gender Equality in Asia and the Pacific, Colombo, pp.111-142
How can legal systems in the Asia-Pacific region be reformed to ensure that men and women receive equal treatment under the law? This report argues that despite the region's success in legislating against gender discrimination, Asia-Pacific still lags behind in the many basic issues of gender equality. Reforms must address both the overt discrimination that characterises many legal systems and the unspoken norms that limit women's rights and access to justice.
Gaanderse, M. and Valasek, K. (2011). 'The Security Sector and Gender in West Africa: A survey of police, defence, justice and penal services in ECOWAS states,' DCAF, Geneva
Are security sector institutions providing adequate response to the different security and justice needs of men, women, boys and girls? What steps have been taken to create internally equitable, representative and non-discriminatory institutions? The report contains three main sections: an introduction, a summary and analysis of findings, and individual country profiles.
For more information on general access to justice issues, see the 'Access to Justice' section in the 'Justice' topic guide
Gender and traditional justice
In many parts of the world, men and women rely on a variety of traditional, customary, religious and informal justice systems. These systems can be more relevant and accessible to poor people than state institutions. However, they tend to suffer from systemic gender biases, with local male elites dominating the decision-making processes. For example, research for the International Rescue Committee in Timor-Leste found that women used traditional justice systems because of their familiarity. This is despite findings that women have minimal and often superficial participation in justice hearings, and that rulings are often based on the biases and cultural beliefs of administrators of justice regarding women's status in society (Swaine, 2003).
Swaine, A. (2003). 'Traditional Justice and Gender Based Violence', Research Report, International Rescue Committee, New York
Danish Institute for Human Rights. (2012). Informal Justice Systems: Charting a Course for Human Rights-Based Engagement. UNDP, UNICEF and UN Women.
How can engagement with informal justice systems build greater respect and protection for human rights? This major study examines the value of informal justice systems in offering flexible structures and processes, cost-effectiveness and outreach to grassroots communities. It considers the weaknesses and strengths of different kinds of IJS for development programming, and suggests that development partners be alert to engagement with IJS that reinforces societal or structural discrimination. The report is based on a literature review, six in-depth country case studies and desk studies of 12 countries.
Chopra, T., & Isser, D. (2012). Access to Justice and Legal Pluralism in Fragile States: The Case of Women's Rights. Hague Journal of the Rule of Law, 4(2).
This paper outlines the two main approaches to women's legal rights: The first assumes that informal systems are inherently inconsistent with women''s rights and therefore the formal system must be the primary forum for adjudicating disputes involving women. The second approach seeks to engage with informal systems with the aim of transforming them to comply with international standards, while retaining the positive features of accessibility, familiarity and effectiveness. The paper argues that both approaches are flawed, and that an alternative approach is to embrace processes of social change as the means for instituting legal change.
Hellum, A. (213). Gender, Human Rights and Legal Pluralities: Experiences from Southern and Eastern Africa. In Sieder, R. and McNeish, J.A., Gender Justice and Legal Pluralities: Latin American and African Perspectives. Routledge.
This chapter analyses case studies from South Africa, Tanzania and Zimbabwe to describe how legal actors, women's rights organisations and individuals navigate the plural legal terrain. From a history of colonialism, these states have protected their rights to self-determination in their legal systems. This includes informal and traditional justice systems, which sometimes clash with equality principles. Successful interventions engage with both the visible and the hidden power structures. Successful strategies centre around bridging the gap between local justice and human rights principles, and which can develop locally appropriate middle grounds.
Manganaro, L. L., & Poland, A. L. (2012). For Better or Worse? Gender and Perceptions of Formal and Informal Justice Systems in Afghanistan. Women & Criminal Justice, 22(1), 2-29.
This article uses survey data from a national probability sample of 6,406 Afghan adults to explore gender differences in the perceptions of formal and informal justice systems. It finds that women have more confidence in the formal system than their male counterparts, whereas the opposite is true for the informal system. The informal system has strong popular support, but it appears that women would benefit from further expansion of the formal system.
The World Bank's Justice for the Poor programme has produced a range of findings on gender and traditional justice.
For further discussion on issues of gender and justice, see the 'Transitional justice' section in the chapter on 'Gender, Statebuilding and Peacebuilding' of this guide; and the Human rights, gender and social exclusion section of the Topic Guide on Justice.
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