Teorías sobre la familia

Under-representation of women within the political and public life of their countries is considered a violation of CEDAW article 7.459 The right to public life is a basic

459 _{“… recruiting, financially assisting, and training women candidates on leadership and negotiation} skills, amending electoral procedures, developing campaigns directed at equal participation, establishing benchmarks, setting numerical goals and timetables, and establishing quotas targeting for women for election and appointment to public positions such as the judiciary or other

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liberty that can only be enjoyed by a citizen who is formally and substantively equal. Every individual within a society must have equal basic liberties as citizens (speaking, political liberty, freedom of speech and assembly etc.) and social and economic inequalities must be fairly arranged by allowing equal access to certain offices or positions to everyone, despite their social background, ethnicity or sex.460

States Parties to the Convention are under an obligation to ensure all human rights and fundamental freedoms to women on an equal basis to men,461 _{and to adhere to}

CEDAW’s universal standard in the treatment of their citizens.462 _{The principles}

incorporated into CEDAW are directly derived from the UDHR, and are based on freedom, equality and dignity.463 Principles of rights embodied in the human rights conventions, including CEDAW, are based on the fundamental values of equality and dignity, and involve participation, autonomy and freedom of all human beings.464 Equality in such a sense requires autonomy and capacity to make life plans and life choices with free will.465 In the case of women’s right to public life, freedom and autonomy are restricted through an interplay of legal and practical barriers embedded in culture and tradition.

2.5.1 Principles of Non-discrimination and Equality

International law is based on two fundamental principles; non-discrimination and equality. The international human rights regime claims that everyone is born equal,466 and that every being has a right to enjoy their private lives as well as be

professional groups that play an essential part in the everyday life of all societies.” Freeman, Rudolf and Chinkin, above n 348, at 214.

460 _{John Rawls A Theory of Justice (Harvard University Press, 1971).} 461 _{CEDAW 1979, art 3.}

462 _{Richard B Lillich “Invoking International Human Rights Law in Domestic Courts” (1985) 54 U} Cin L Rev 367 at 371.

463 _{UDHR 1948, art 1.}

464 _{Anne Hellum and Henriette Sinding Aasen Women’s Human Rights: CEDAW in International,} Regional and National Law (Cambridge University Press, United Kingdom, 2013) at 98.

465 _{At 98.}

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equally involved in the public life of their countries. The equality principle was also included in article 7 of the Declaration stating “All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination”.467 _{ICCPR states:}468

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Likewise, CEDAW also expresses rights in both negative and positive form.469 Equality and anti-discrimination legal norms are designed to combat a complex set of different wrongs, which take various forms across the different controlled grounds of discrimination and in different social contexts.470 _{Some scholars argue}

that non-discrimination and equality are equivalent concepts471 _{and two sides of the}

same coin.472

467 _{UDHR 1948, art 7.} 468 _{ICCPR 1966, art 26.}

469 _{Simone Cusack and Lisa Pusey “CEDAW and the Rights to Non-Discrimination and Equality”} (2013) 14 Melbourne Journal of International Law 54 at 57; WA McKean Equality and discrimination under international law (Clarendon Press ; Oxford University Press, Oxford; New York, NY, 1983) at 285.

470 _{Johannes Morsink The Universal Declaration of Human Rights (University of Pennsylvania} Press, Philadelphia, 1999) at 113–114; also see Colm O’Cinneide “Fumbling towards Coherence: The Slow Evolution of Equality and Anti-Discrimination Law in Britain” (2006) 57 N Ir Legal Q 57.

471 _{A. Lester (Lord Lester of Herne Hill) and S.Joseph, “Obligations of non-discrimination,” in} D.Harris and S. Joseph (eds), The International Covenant on Civil and Political Rights and the United Kingdom (Oxford: Clarenden Press, 1995) at 565; W.McKean, Equality and Discrimination under International Law (Oxford; Clarenden Press 1983, at 288.

472 _{See for example, A.F.Bayefsky, “The Principles of Equality and Non-Discrimination in} International Law, Human Rights Law Journal, 11/1-2 (1990) at 1, n 1; J. Morsink, The Universal Declaration of Human Rights: Origins, Drafting and Intent (Philadelphia, PA: Univeristy of Pennsylvania, 1999) at. 45; P. Hunt, Reclaiming Social Rights: International and Comparative Perspectives (Aldershot Dartmouth Publishing, 1996), at 92.

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The principle of equality is used to encourage because it fosters a type of equality that appears to reject all inequalities in a system. At the same time, the concept of non-discrimination (negative equality) plays a vital role in the achievement of CEDAW’s goals,473 _{which cannot be achieved by a pure formal approach. This is}

perhaps why a majority of international law instruments express equality in the negative form; non-discrimination.474 Where positive equality would require that everyone be treated in the same, negative equality would allow differences in treatment unless they are based upon a number of expressly prohibited grounds.475

The non-discrimination principle in CEDAW is markedly important because it recognises “the importance of addressing women’s specific experiences of discrimination.”476 Essentially, the difference between rights to non-discrimination and equality would be between whether ‘to act’ or to refrain from acting.477