... continued

          3.       Right to Health and Reproductive Health (Article 11, American Declaration; Articles 5 and 26, American Convention; Articles 4 and 5, Convention of Belém do Pará)

          Based on the information forwarded by the States, it can be seen that in general integral health care for women depends primarily on the organization and structure of adequate services, which are implemented as a result of regulations and programs set up for this purpose.  Second, the right to health also depends on whether women are familiar with the laws which protect this right and regulate medical health service.  The reproductive health of women should occupy a place of importance with respect to legislative initiatives and national and provincial health programs.

          Some countries have reported on the regulation of family planning services granting individuals or couples the option of using and selecting methods.  This is the case, for instance, of the 1984 Resolution issued by the Ministry of Health in Colombia.  Also, Colombia's Law 100 of 1993 provides for free, mandatory, and universal family planning in basic health services.  In Argentina, the Ministry of Health and Social Action offers a program on responsible procreation and its aim is to provide information on this right in order to make a responsible decision on having children and to provide advice to the public and families on this subject although there are not yet any regulations governing the use of methods and the provision of these services.

          In the responses forwarded by some States, the serious difficulties facing women's health care in the public sector were described.  These problems are attributable to the lack of resources, the absence of norms with respect to reproductive health, the precariousness of service delivery, and a lack of professional personnel and essential supplies.

          D.      THE PRINCIPLE OF EQUALITY AND NONDISCRIMINATION IN LABOR LAW (Articles 2 and 14, American Declaration; Articles 1 and 26, American Convention; Article 5, Convention of Belém do Pará)

          In general, the principle of equality and nondiscrimination is established in labor legislation throughout the region, and any type of differentiation against workers for any reason, including gender, is forbidden to prevent arbitrary discrimination.  For instance, in Argentina, law 20,744 establishes the principle of equality and nondiscrimination.  The Equal Opportunity Plan for Women (1993) initiated by the executive branch, pushed for passage of law 24,465 to encourage employers to hire women and law 24,576 on equal opportunity between workers of both sexes.  In Bolivia, work performed by women is regulated by the 1939 Labor Act and by the General Labor Act that updates some norms [43] .  In Canada, the Employment Equity Act came into effect in 1996, modifying the previous labor law regime, and amplifying its coverage to include the federal public service, and companies regulated by and doing business with the State.  In Panama, many laws that established differences based on gender according to the activity or position were declared unconstitutional by the Supreme Court in 1994 for adversely affecting a woman's freedom to practice a profession.  In Paraguay, the Labor Code specifically provides for equality in explicit regulations.  In Uruguay, law 16,045 provides for penalties in cases of labor discrimination.

          Serious problems continue to exist, however, in the way these regulations are applied in actual fact, which results, inter alia, in significant differences in income between men and women in the majority of the countries of the region.  An illustration of this is the case of Costa Rica, which reports in the questionnaire that in 1990 the average monthly salary of women was 82% of that of men.  In rural areas, 60% of women earn less than the minimum wage and 34% just one half that amount.  In Brazil, income earned by women is equivalent to 54% of that received by men.  In Uruguay, women earn 75% of the income received by men.

          An essential subject that is being considered in draft legislation submitted in some countries has to do with labor regulations in which women and minors are classified together.  For instance, in Bolivia, Ecuador, and Costa Rica, regulations of this kind are being abolished or amended.

          E.       RIGHT TO EDUCATION (Article 12, American Declaration; Articles 1 and 26, American Convention)

          Several countries have adopted standards to establish explicitly the principle of equality between men and women in education.  In Argentina, the Federal Education Act (law 24,195) promotes equal opportunity and the need to overcome discrimination in teaching materials.  The National Program for the Promotion of Equal Opportunities for Women in Education, implemented by the Ministry of Cultural Affairs and Education, was created in 1990.  In Bolivia, gender perspective has been incorporated into the national education system for primary education.  In Colombia, in 1992, the Office of the Presidential Advisor for Women, Youth, and the Family, together with the Ministry of Education, initiated a series of activities to promote equal opportunities between the genders in education, including research on the production of school textbooks from the perspective of equity in gender relations.  In Costa Rica, the Social Equality Promotion Act for Women (1990) forbids educational institutions from "using pedagogical content, methods, and instruments that assign roles to men and women in society, that are at variance with social equality and the complementarity of each gender or maintain women in a subordinate position".  In Ecuador, a series of programs have been initiated since 1990 to promote integrated education that includes the rights of women, in order to modify cultural patterns that discriminate against women.  Activities are being undertaken to incorporate gender perspective into curriculum reform.  In Guatemala, the Ministry of Education, through the National Textbook Commission, has established general guidelines for eliminating the use of sexual stereotypes in the education system, and has ordered that textbooks be revised to include gender perspective.

          These initiatives undoubtedly reflect policies designed to surmount prejudices ingrained from cultural tradition, by providing women with an opportunity to learn what their rights are and how to defend them. [44]

          IV.      CONCLUSIONS

          The Commission values the cooperation shown by the States of the Hemisphere in responding to the questionnaire, and which demonstrates their commitment to achieving the ideals of juridical equality and nondiscrimination towards women.  As noted in this report, many States have added women's rights to the national agenda, creating new institutions, plans and specific policies, legal mechanisms of affirmative action in political participation and, in general, significant advances in promoting and protecting women's rights.  There is a growing perception in the region that effective democracy calls for greater participation by women in decision making and that access to the public life of a nation is not achieved solely through the nondiscriminatory exercise of the right to vote.

          Despite the undoubted progress reported by the countries, serious problems persist in the region.  Women have not yet achieved full juridical equality in every country in the region.  Discrimination de jure is a flagrant violation of the international commitments freely assumed by the States and, although formal equality does not guarantee the elimination of instances of discrimination, recognizing it makes it possible to encourage transformations in society, thereby enhancing the authority of this right.  According to the information received, certain countries possess, in greater or lesser measure, laws that restrict and/or discriminate against the civil rights of women in marriage with respect to the administration of assets of each spouse or other types of assets; in representation of the conjugal home or head of household; in the exercise of parental authority; in establishing the conjugal domicile, or the possibility of remarriage; in the need for express or tacit authorization of the husband to work and open a business; or in the right to ownership of property.

          The preamble to Convention of Belém do Pará states that "violence against women constitutes a violation of their human rights and fundamental freedoms, and impairs or nullifies the observance, enjoyment and exercise of such rights and freedoms."  Article 2 of the same Convention adds that "Violence against women shall be understood to include physical, sexual, and psychological violence that is perpetrated or tolerated by the State or its agents regardless of where it occurs".  The State has the obligation, therefore, in accordance with this international instrument and Article 1.1 of the American Convention--and the rights established therein--to act with due diligence to prevent violations of human rights and to take remedial action whenever violations do occur.  This implies that, even in the case of conduct not originally attributable to the State, a violation of these rights may entail responsibility on the part of the State "not because of the act itself, but of the lack of due diligence to prevent the violation or to respond to it as the Convention requires."  (I.A.Ct.H.R., Case of Velásquez Rodríguez, judgment of July 29, 1988, Ser. C. No. 4, paragraph 172.)

          At the meeting of experts on the Status of Women in the Americas on November 7, 1997, organized by the Special Rapporteur of the Inter-American Commission on Human Rights, dealing with the problem of violence against women was identified as a priority.  Although this problem, given its magnitude and seriousness, has led to the creation of institutions, mechanisms, and various legislative initiatives, norms that violate the guarantee of equality before the law and due process continue to exist.  In many criminal codes, values such as honor, social decency, virginity, chastity, and good morals prevail over values such as the mental and physical integrity of the woman and her sexual liberty, thereby impeding the due protection under the law of victims of such crimes, or compelling them to prove that they resisted in the case of the crime of rape, or subjecting them to interminable procedures that perpetuate victimization.

          The Commission wishes to draw the State's attention to the fact that the situations such as those described in which women who are the victims of violence are left unprotected still exist because of a lack of adequate legislation or because the legislation in force is not observed.  In many countries, women who are the victims of family violence cannot rely on appropriate criminal laws since domestic violence is not considered a crime, or else the complaints are unsuccessful, with the process generally ending with the aggressor being set free.  There are situations in which women victims of sexual violence do not have access to civil action for damages since the dignity of the individual is considered a juridical interest not susceptible to inclusion as a pecuniary interest.  Apparently, in this latter case, the damage is viewed as having an abstract element with a moral component "the dignity of the victim", without also taking into account that the individual's mental and physical integrity has been harmed or affected as well as her freedom and privacy.  In addition, the concept of moral damages is covered in other areas of the criminal code and is susceptible to restitution through civil action.  The Commission wishes to recall that Article 7.g of the Convention of Belém do Pará establishes that the States must "establish the necessary legal and administrative mechanisms to ensure that women subjected to violence have effective access to restitution, reparations or other just and effective remedies."  Equally important is the fact woman campesinos, minors, and indigenous women are particularly vulnerable to situations in which they are left unprotected and exposed since they have fewer means of defence.

          On the question of persecution and sexual harassment, the information received by the Commission showed that only in exceptional circumstances is such behavior regulated in the domestic legislation of the States, with its being restricted in one case to the public sector and in another to labor legislation.  Many countries report, however, on the presence of draft legislation to eventually incorporate sexual harassment into national legislation.

          The responses to the Commission's questionnaire reveal that although women account for over one half of the population in the hemisphere, this is not reflected in decision making levels in the political, social, economic, and cultural spheres.

          In their reports, the States refer to serious problems in terms of material resources, a situation that undermines the protection of rights relating to health, employment, and education.  The Commission is aware of the problem of resources but is not convinced that the rights of women have been adequately considered in the establishment of national priorities and the assignment of resources.

          The Commission has been able to confirm the existence of valuable education programs that include gender perspective aimed at overcoming social and cultural traditions that continue to circumscribe equal opportunities for women.  The Commission considers programs of this kind essential for heightening awareness in the region of the rights of women and for ensuring that such rights can be exercised.

          According to the responses forwarded by the States on health and reproductive health, the Commission was able to confirm serious deficiencies in statistics, generally owing to a lack of resources and suitable infrastructure.  The Commission is able to verify serious problems of access to basic information, proper health and social care, as pointed out in superb reports prepared by the Pan American Health Organization on violence and health [45] , as well as studies undertaken by the World Bank [46] , and the Inter-American Development Bank [47] on domestic violence and health.  These international organizations undertook major initiatives and strategies to prevent, reduce, and raise the visibility of violence against women.

          In the area of labor legislation, most States in the region have laws of varying legal rank that prohibit discrimination in the work place.  However, there are sharp disparities in the compensation levels of men and women for the same work.  In some situations, women are assimilated with minors, a situation which in itself constitutes a violation of the principle of nondiscrimination and recognition of juridical personality.

 V.      RECOMMENDATIONS

          The Inter-American Commission on Human Rights adopts the following recommendations presented by the Special Rapporteur:

          A.      Institutional measures within the Commission

          1.       The Rapporteurship on Women Rights should be transformed into a Working Group on the Rights of Women, coordinated by a Commissioner and comprising experts appointed by the Commission.  This is of special importance, inter alia, in order to achieve greater participation of civil society, and given the present composition of the Inter-American Commission on Human Rights.  The Working Group will formulate recommendations to the Commission on how the case system and internationally protected rights may be made more accessible to women (i.e. training, materials, and internships).

          The Working Group will submit to the Commission draft reports on issues with which it has been entrusted by the Commission, acting within the scope of its Convention and Regulation-based attributes.  The first report will center on violence against women in the hemisphere and the Inter-American System for Protection of Human Rights.  This report will propose inter alia measures to the Commission that will make it possible to protect women more effectively against violence.

          2.       The Commission will establish a Voluntary Fund on Women's Rights.  The exclusive purpose of this fund will be to obtain material resources so that the Commission can perform the functions entrusted to it under the OAS Charter, the American Convention, the American Declaration, and the Convention of Belém do Pará.  This includes carrying out or providing support for training on its case system and women's rights, conducting studies, and preparing materials.

          3.       The Commission within its powers will take steps to stress still further the promotion and protection of women's rights, and to this end will:

          a)       Give full coverage to women rights in reports on its in loco visits.

          b)       Urge governments and nongovernmental organizations to participate, as amicus curiae, in specific cases before the Commission and the Inter-American Court of Human Rights to enrich the decision-making process of these bodies.

          c)       In the context of its activities of supervision and its case system, cooperate with international agencies and bodies involved in promoting and protecting women's rights and within the OAS with the other bodies, entities, and instances of coordination concerned with the progress of women's rights.

          B.       States in the Hemisphere

          1.       The States are urged, in accordance with the international obligations they have freely assumed, to take such steps forthwith as are necessary to fulfill their commitment to abolish all laws that discriminate against women, so that by the year 2000 at the latest such inequality will be eliminated and the full capacity of women in all areas of life will be recognized.  The Commission proposes that the continent of the Americas commence the twenty-first century "Without Discrimination Against Women", this being understood to 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.

(Article 1 of the United Nations Convention on the Elimination of All Forms of Discrimination Against Women).  To this end, the Commission urges the States to undertake a broad review of their legislation in order to identify provisions establishing distinctions, exclusions, or restrictions on the basis of sex, that have the purpose or effect of preventing recognition or exercise of human rights by women, and to amend such laws or abolish them.

          2.       The OAS member States that have not yet done so should ratify the regional human rights instruments, and in particular, the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence Against Women as a demonstration of their commitment to observing and protecting the human rights of women who are the victims of violence [48] .

          C.      Recommendations to the States on specific rights

          1.       The States need to fulfill Articles 1, 3, and 24 of the American Convention, and Articles 2 and 17 of the American Declaration, which establish the right to equality before the law and recognition of juridical personality and civil rights of women.  This includes recognizing equal rights for women in and outside of marriage, their right to dispose of their own assets and equality in parental authority.

          Furthermore, in accordance with Articles 20 and 24 of the American Declaration and Article 23 of the American Convention, the Commission urges the States to continue and expand measures to encourage participation by women in decision-making in the public sphere, including positive measures.  As well, the Commission urges that they assure that women have appropriate representation at all levels of government, at the local, provincial, state and national levels; develop strategies to increase the integration of women in political parties; and take further steps to fully incorporate the sectors of civil society, including those that represent the interests of women, in the process of developing and implementing policies and programs. 

          2.       The States must eliminate the serious restrictions placed on women as a result of the conferral of conjugal representation or head of household status on the husband, and the limitation of the role of women to the domestic sphere.  These restrictions include:  the authority of the husband to prevent his wife from exercising a profession or trade, or operating a business, when that is considered to be harmful to the interests and care of the children and other domestic obligations; the designation of the husband as administrator of conjugal assets; and the conferral of parental authority upon the husband/father.  Moreover, the duty to recognize children born outside of marriage must be binding for a man as well as for a woman.

          3.       The Commission urges the States, in accordance with Articles 1 and 11 of the American Declaration, Articles 4 and 5 of the American Convention, and Article 7 of the Convention of Belém do Pará, to adopt suitable legislation on violence against women, ensuring that violence, intrafamilial or domestic violence, or that is either caused or tolerated by agents of the State, is duly investigated, tried before a court, and punished.  The response capacity of the public and private sectors in training law enforcement and judicial personnel needs to be strengthened in order to provide proper treatment for the causes and effects of violence.  Lastly, the States need to fully implement the programs and laws on domestic violence that already exist, which for lack of insufficient resources frequently have yet to be initiated or are only partially implemented.

          4.       Recognizing the right to health of women, the States need to adopt measures to keep proper statistical data and to have the necessary resources in order to ensure plans and programs that allow women to fully exercise this important right.

          Recognizing the growing participation by women in the labor market and in national economies, and that disparities in the remuneration levels of men and women for the same work persist, the Commission urges the States to take such additional steps as are necessary to correct the disparities in income between men and women possessing equal qualifications and performing the same tasks; to ensure equal employment opportunities for women and men; to review legislation and judicial resources to ensure that the reproductive functions of women are not transformed into a cause for discrimination in the hiring, placement, promotion, or firing of women; and to prevent, punish, and eradicate sexual harassment in the work place.

          5.       The Commission urges the States to amend criminal codes that declare rapists who marry their victims free of any responsibility or penalty; to ensure that women who are detained are treated with respect for their dignity, that their cases are processed swiftly before a judicial authority and subject to judicial supervision, that they have quick access to legal assistance and medical care, and that inspections of women detained are conducted with the proper guarantees and care; that sexual crimes classified until now as crimes against decency and good morals be classified as crimes against personal integrity, liberty and privacy.  It is further recommended that conduct not covered in certain criminal codes, such as incest, be defined as a crime; that the definition of rape be broadened to include situations not traditionally considered as such, that because of new modalities are by their nature a violation of personal integrity and the freedom and privacy of women; and that any mention of the concept of decency, honor, and related notions, be eliminated as extenuating circumstances.  The Commission urges the States to ensure that those women most vulnerable, women campesinos, young girls, and indigenous women have due access to the mechanisms afforded by the legal system.

          The Commission endorses General Recommendation 19 of the Committee on the Elimination of Discrimination against Women (CEDAW) adopted in 1992 through which it is affirmed that violence against women constitutes a violation of human rights, stressing that the States may be liable for private acts if they fail to act with due diligence to prevent violations of rights, or to investigate and punish acts of violence, or fail to provide measures of reparation or compensation (E/CN.4/1996/53, 5 February 1996, Commission on Human Rights, p.10, paragraph 34).  In keeping with the criterion set out by the CEDAW, the Commission recommends that the States revise and amend domestic legislation for the purpose of reflecting the progress achieved in international law with respect to the rights of women, punishing conduct that has not yet been defined as a crime such as sexual harassment, amending procedures in the investigation stage that are discriminatory and/or prejudicial because the victim is a woman engaging in "immoral conduct" and to investigate and punish cases of domestic violence with due diligence through prompt and simple judicial remedies.

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NOTES