Enforcing Rights and Correcting Wrongs - Asia-Pacific Regional ...

Outside the Middle East and North Africa, Asia-Pacific
has the highest percentage of CEDAW states parties
with some form of reservation. It is also second only to
the Middle East and North Africa in the percentage of
countries that have not signed the CEDAW Optional
Protocol, a complaint mechanism meant to strengthen
enforcement of CEDAW. 43 In the Pacific, a study of nine
countries on compliance with CEDAW within their laws
found rates ranging from 18 per cent to 44 per cent, with
Fiji having the highest ranking. 44
Nevertheless, the CEDAW has been instrumental in some
countriestoreformcivilandcriminallaws.Forexample,the
2003 Fiji Family Law Act removes systemic discrimination
against women and children in a manner consistent
with CEDAW. Vanuatu’s 2008 Family Protection Act
is the only stand-alone legislation combating domestic
violence in the Pacific which was guided by CEDAW
and the Convention on the Rights of the Child. 45 Viet
Nam is using CEDAW in its comprehensive review of
legal normative documents that has followed the adoption
of its 2006 Law on Gender Equality. In Cambodia, the
Ministry of Justice is spearheading a CEDAW review of
legislation on domestic violence, trafficking, domestic
workers and marriage. 46
In Nepal, although marital rape is still not a criminal
offence, a judgment of the Supreme Court held that an
exemption from marital rape conflicts with CEDAW. The
Court used CEDAW and reasoned that if an act is an
offence by its very nature, it is unreasonable to say that it
is not an offence merely because different categories of
individuals commit it. The Court ruled that marital rape
is a denial of a woman’s independent right to existence
and self respect. 47
International instruments also aim to redress specific
gender issues such as the conditions of female combatants.
Women have been active participants in several armed
conflicts and political upheavals – in Nepal’s Maoist
movement, as volunteers in the Iraqi army, in the
independence struggle of Timor-Leste, and in Sri
Lanka’s Tamil conflict. They undergo intense physical,
psychological and emotional experiences, and also pick
up a variety of skills some of which are transferable to
productive civil life. But post-conflict rehabilitation
efforts that predominantly focus on civilians, refugees
and other displaced population miss out on the special
needs and enormous potential of females.
Gender comes in the way when women and girls tend
to be counted among camp followers and refugees
rather than ex-combatants eligible for full rehabilitation
packages. Both sexes share the same danger, insecurity and
living conditions as females function not just in “support”
roles but also for all other activities like intelligence,
combat, bombings and suicide missions, logistics
and administration. To redress grievances of female
combatants, the Security Council Resolution 1325, passed
in 2000, aims to remove barriers to equal participation
in peace building. 48 The Resolution encourages ‘all those
involved in the planning of disarmament, demobilization
and reintegration to consider the different needs of female
and male ex-combatants’. 49
There are other international instruments which address
different aspects of discrimination against women. For
instance Universal Declaration of Human Rights (1948),
the International Covenant on Civil and Political Rights
(1966) and the International Covenant on Economic,
Social and Cultural Rights (1966) address discrimination
on the basis of sex. Thus, international instruments
can support national efforts towards greater equality.
Nevertheless barriers remain embedded in laws that
govern justice systems. It is to these barriers that section
four turns.
14 Enforcing Rights and Correcting Wrongs