English - CEDAW Southeast Asia

A Gendered and Rights-Based Review of Vietnamese Legal Documents through the Lens of CEDAW
environment that disadvantages women, to equalize the situation; and, hence, to secure the
practical realization of their right.
Paragraph 8 of CEDAW General Recommendation No. 25, on Article 4, Paragraph 1, of the
Convention on the Elimination of All Forms of Discrimination against Women, on Temporary
Special Measures (2004) (GR 25) states: “In the Committee’s view, a purely formal legal or
programmatic approach is not sufficient to achieve women’s de facto equality with men, which
the Committee interprets as substantive equality. In addition, the Convention requires that
women be given an equal start and that they be empowered by an enabling environment to
achieve equality of results. It is not enough to guarantee women treatment that is identical to
that of men. Rather, biological as well as socially and culturally constructed differences
between women and men must be taken into account. Under certain circumstances, non-identical
treatment of women and men will be required in order to address such differences. Pursuit
of the goal of substantive equality also calls for an effective strategy aimed at overcoming
under-representation of women and a redistribution of resources and power between men and
women."
III.2.2 NON-DISCRIMINATION
Non-discrimination is a core principle of CEDAW. 115 Indeed, the title of the treaty says that ‘all
forms of discrimination’ must be eliminated. A definition of ‘discrimination’ is provided in Article
1 of CEDAW:
… the term "discrimination against women" shall mean 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.
Direct and indirect discrimination
A key phrase in this definition of discrimination is ‘effect or purpose’, which makes it clear that
CEDAW prohibits both direct discrimination and indirect discrimination. Direct discrimination
refers to an action or omission that has the ‘purpose’ of discriminating against women; for
example, terminating employment on the basis of marriage or pregnancy, unequal retirement
age, unequal inheritance rights, and differential age of marriage. In the past, discrimination
was more blatant and intention to discriminate was clearly visible.
Now, more subtle or hidden forms of discrimination has been increasingly recognized,
which CEDAW prohibits through a guaranteed against indirect discrimination. 116 Women can
face many obstacles sanctioned by culture and religious practices, or by entrenched male
interests in key institutions such as political parties, trade unions, religious institutions and the
courts. Indirect discrimination targets the effect an action or omission. An act or omission may
appear to be neutral towards or even beneficial, but its effect can be discriminatory. Thus,
under Article 1, even if there was no intention to discriminate, if an action or omission has the
‘effect’ of discriminating, it is discriminatory. To emphasize this point, GR 25 provides:
53
115
Ibid., Paragraph 7; IWRAW Manual
116
Ibid., Paragraph 7
Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)