Are men still determining women's human rights? (part 1)
31st Jan 2019
Aside from the starring role of Eleanor Roosevelt, the other members of the Commission tasked with framing the Universal Declaration of Human Rights (UDHR) were male. The document was originally drafted to open: ‘All men are brothers’ and referred throughout to the rights of men. It was the intervention of Jessie Street, Australia’s only woman delegate to the United Nations, that resulted in Article 1 instead reading: ‘All human beings are born free and equal in dignity and rights.'
Unfortunately, despite Street’s efforts to rid the declaration of its sexist language, she was only partially successful and to this day, this most revered and authoritative document still refers to ‘mankind’, ‘man’, ‘the spirit of brotherhood’ and makes exclusive use of the male pronoun. The failure to provide acknowledgement of women throughout the document undermines the provisions declaring that rights should be enjoyed without discrimination.
Street’s attempt to establish a right for women to be free from violence was also unsuccessful, while her argument for greater recognition of the rights of motherhood resulted in a rather paternalistic compromise with the drafting of Article 25, which groups mothers with children as needing ‘special care and assistance’. This is a far cry from recognising the critical bond between mothers and their children, and the right of mothers not to be separated from their offspring. Article 25 and other pro-family provisions were primarily the outcome of religious influence rather than lobbying by feminists. Unfortunately, the deficiencies that Street was unable to correct in 1948 continue to impede the advancement of women’s human rights.
The UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) was instituted in 1981 and is the key international human rights document that seeks to articulate and uphold the human rights of women. It addresses women’s rights within political, civil, cultural, economic, and social life. However, it still fails to incorporate a right for women to be free from male violence. There have since been piecemeal efforts to ameliorate this oversight with the CEDAW Committee issuing General Recommendations 12 and 19 which aim to bring gender-based violence within the purview of the Convention. Furthermore, the introduction of an International Declaration on the Elimination of Violence against Women in 1993 also attempts to overcome this shortcoming. However, none of these measures has as much recognition and force as a convention itself. As a result, there are continuing calls for a specific treaty framed to combat violence against women.
CEDAW also provides inadequate recognition of maternal rights, since it provides only that women should have equal rights with men in relation to the number and spacing of children and the rights and guardianship in respect to those children. There is a failure to acknowledge the greater physical, psychological and economic impact that childbearing has on women and to ensure that this reality translates into additional human rights attaching to motherhood. Rather, the critical bond between a mother and child is disregarded by international human rights law, which instead enshrines ‘family’, a difficult construct to define, as the fundamental unit of society.
This blind spot had a significant impact on Australian legislation, such as our Family Law Act 1975 (Cth) which is framed to protect marriage, the family and the ‘best interests of the child’ but fails to acknowledge the distinct human right of mothers to be supported to retain care of their offspring. This has left the way open for child removal policies and the promotion of adoption and surrogacy, and for abuse and manipulation of the family law system by male perpetrators. It has established a world view in which having a relationship with the biological mother is regarded as superfluous to a child’s needs.
Despite its shortcomings, CEDAW is the main human rights treaty for women. It has been ratified by 189 states, with the USA being a conspicuous absentee from a list which includes every other western democracy. However, very few Australians, including lawyers, are familiar with the treaty. Countries that are a party to CEDAW must submit reports to the CEDAW Committee at least every four years detailing what measures they have taken to comply with their obligations under the Convention. These reports are scrutinised by the CEDAW Committee which is made up of 23 elected members who serve in their personal capacity as ‘gender experts’.
However, there is a very low public awareness of Australia’s regular reporting obligations in relation to international human rights conventions generally, and therefore limited commentary on Australia’s tardiness in meeting its obligations under CEDAW. This explains why there was no outcry when Australia effectively skipped lodging its four-yearly report in 2014. Few are aware that Australia’s record on women’s rights was reviewed for the first time since 2010 in Geneva on 2-3 July 2018.  Considering that the CEDAW treaty body had little positive feedback about Australia’s progress over the intervening eight years, it is not surprising that the government failed to promote this event.
Part 2 of this article will discuss how the government’s failures have undermined the human rights of Australian women.
Anna Kerr is the Founder and Principal of the Feminist Legal Clinic, Sydney, which works to advance the cause of feminism and champion the human rights of women and girls by providing legal support to feminist organisations, groups and services and the women who access them.
The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).
 Universal Declaration of Human Rights (UDHR) 993 UNTS 3 (entered into force 10 December 1948); UN, ‘The drafters of the Universal Declaration of Human Rights,’ Universal Declaration of Human Rights, <http://www.un.org/en/sections/universal-declaration/drafters-universal-declaration-human-rights/index.html>; <https://research.un.org/en/undhr/draftingcommittee>.
 E Evatt, ‘Jessie Street and human rights,’ Evatt Foundation (18 April 2018) <https://evatt.org.au/papers/jessie-street-human-rights.html>.
 A M Payne, Untold suffering? Motherhood and the Stolen Generations (Phd Thesis, University of Technology Sydney, 2016) 31.
 A Carlson, ‘Globalizing family values’ (Speech delivered at the Charismatic Leader’s Fellowship, Jacksonville, Florida, 12 January 2004, <https://archive.is/20120525091122/http://www.profam.org/docs/acc/thc.acc.globalizing.040112.htm>.
 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) opened for signature 18 December 1979, 1249 UNTS 13 (entered into force 3 September 1981).
 Ibid, General Recommendations 12, 19,
 Declaration on the Elimination of Violence against Women G.A. res. 48/104 (entered into force 20 December 1993).
 R McQuigg, ‘Why the world needs a UN treaty to combat violence against women’, The Conversation (online), 8 March 2016, <https://theconversation.com/why-the-world-needs-a-un-treaty-to-combat-violence-against-women-53582>.
 Family Law Act 1975 (Cth); Australian Law Reform Commission, Family Violence: A National Legal Response, Report No. 114 (2010) Ch 4.
 R Olding, ‘Family Court ruling: Violent father given sole custody of child’, Sydney Morning Herald (online), 17 April 2016, <https://www.smh.com.au/national/nsw/family-court-ruling-violent-father-given-sole-custody-of-child-20160405-gnz3pr.html>; B Fehlberg, ‘Reports show shared care needs fixing’, The Sydney Morning Herald (online), 3 February 2010, <https://www.smh.com.au/politics/federal/reports-show-shared-care-needs-fixing-20100203-nd7a.html>.
 B Farmer, 'Judge to decide whether baby can be first in UK history to be born without a mother in landmark trans rights case’, Independent (online), 30 September 2018, <https://www.independent.co.uk/news/uk/home-news/transgender-man-baby-birth-certificate-mother-trans-rights-landmark-case-family-court-a8562021.html>.
 Human Rights and Equal Opportunity Commission, Women’s Rights: United Nations Convention on the Elimination of all Forms of Discrimination Against Women CEDAW (2008).
 M Nawaz and A Cody, ‘UN set to review Australia’s record on women’s rights – and may find it wanting’, The Conversation (online), 28 June 2018, <https://theconversation.com/un-set-to-review-australias-record-on-womens-rights-and-may-find-it-wanting-98552>.