PART 1
Equal treatment and non-discrimination on
the basis of sex is a fundamental human right
firmly enshrined in all major international and
regional instruments39 (see discussion under
Principles 3 and 7 and related guidelines). The
Convention on the Elimination of All Forms of
Discrimination against Women defines such
discrimination as:
[A]ny 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 (art. 1).
It is widely accepted that this prohibition requires
States parties to take action to prevent private
as well as public acts of discrimination.40 The
prohibition on sex-based discrimination is related
to and reinforces the duty of equal application of
the law.41
Charter of the United Nations, Preamble, Article 1 (3);
International Covenant on Civil and Political Rights, articles
2, 3, 26; International Covenant on Economic, Social and
Cultural Rights, articles 2, 3, 7; African Charter, articles 2,
18 (3); American Convention on Human Rights, article 1;
European Convention on Human Rights, article 14.
39
See Committee on the Elimination of Discrimination
against Women, general recommendation No. 19:
Violence against women, para. 9; Declaration on the
Elimination of Violence against Women, General Assembly
resolution 48/104, article 4 (c); “Preliminary report
submitted by the Special Rapporteur on violence against
women, its causes and consequences, Ms. Radhika
Coomaraswamy” (E/CN.4/1995/42, para. 72). See also
Theodor Meron, Human Rights Law-making in the United
Nations (1986), p. 60.
40
Article 26 of the International Covenant on Civil and
Political Rights, for example, provides that “[a]ll persons
are equal before the law and are entitled without any
discrimination to the equal protection of the law. In this
41
40
The discussion under Principle 5 and related
guidelines confirms the link between sex-based
discrimination and vulnerability to trafficking.
Violence against women is not directly
addressed in any of the major international or
regional human rights instruments.42 However,
attitudes are changing and the issue is now
a fixture on the mainstream human rights
agenda. Two United Nations instruments are
significant: general recommendation No. 19
on violence against women issued by the
Committee on the Elimination of Discrimination
against Women, and the Declaration on
the Elimination of Violence against Women
adopted by the General Assembly in 1993.
Also relevant, both in a regional context as
well as in terms of its overall influence on the
direction and content of the debate on violence
against women, is the 1994 Inter-American
Convention on Violence against Women.
General recommendation No. 19 brings the issue
of violence against women within the Convention
on the Elimination of All Forms of Discrimination
against Women by stipulating that the definition
of discrimination contained in article 1 includes
gender-based violence, i.e., violence that is
directed against a woman because she is a
woman or that affects women disproportionately.
Gender-based violence is identified as “a form
of discrimination that seriously inhibits women’s
ability to enjoy rights and freedoms on a basis of
equality with men. According to the Committee
on the Elimination of Discrimination against
Women, gender-based violence includes “acts
that inflict physical, mental or sexual harm or
respect, the law shall prohibit any discrimination and shall
guarantee to all persons equal and effective protection
against discrimination on any ground such as … sex”.
This omission and the reasons behind it have been the
subject of extensive analysis. For a useful overview, see E/
CN.4/1995/42.
42
RECOMMENDED PRINCIPLES AND GUIDELINES ON HUMAN RIGHTS AND HUMAN TRAFFICKING
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