English - CEDAW Southeast Asia

A Gendered and Rights-Based Review of Vietnamese Legal Documents through the Lens of CEDAW
GR 20: Reservations (1992);
GR 21: Equality in Marriage and Family Relations (1994);
GR 22: Amending Article 20 (Meetings of the CEDAW Committee) (1995);
GR 23: Political and Public Life (1997);
GR 24: Women and Health (1999);
GR 25: Temporary Special Measures (2004).
III.2 CORE PILLARS OF CEDAW
There are three core pillars of CEDAW:
Substantive equality;
Non-discrimination;
State obligation.
These pillars are the cornerstones on which the spirit of CEDAW rests. They also embody the
conceptual framework behind CEDAW. Without an understanding of these pillars, CEDAW
cannot be properly applied; and, in many cases, may result in violations to the right of equality
found in CEDAW.
III.2.1 SUBSTANTIVE EQUALITY
While gender equality has been widely recognized in Constitutions, laws, other legal documents
and international treaties, difficulty in its implementation exists because there are different
interpretations of ‘equality’.
Formal equality
The traditional and most common understanding of equality, especially in legal traditions or
discourse, is ‘treating similar classes of persons similarly, while treating different classes differently’.
110 This is termed formal equality. In this approach, men and women are seen as similar;
and, therefore, they will be provided with similar treatment without exceptions. As a result,
differences based on biology, such as pregnancy or maternity, are ignored. Social and cultural
differences - like social perceptions of women as weak, son-preference and overprotecting
women - are also disregarded. By ignoring the differences, the particular needs of women are
not addressed. Legislation that provides maternity leave for women, for example, will be seen
by this approach as discriminatory as it allows for different treatment between similar classes
of people. If women want to be equal, the view of the formal equality approach is that they
should live up to the male standard; and, thus, not ask for maternity leave. The formal
approach is clearly a single-standard. Historically, it only takes into account male experiences,
so uses male standards and expects women to conform to them; and, as a result, it can put
additional difficulties on women. 111
51
110
IWRAW Asia Pacific, ‘Building Capacity for Change: A Manual on CEDAW’, Unpublished, 2001 (IWRAW Manual)
111
Ibid.
Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)