C Explanatory
memorandum by Ms Circene, rapporteur
1 Introduction
1. At the 4th meeting of women members of the Parliamentary
Assembly of the Council of Europe (Strasbourg, 26 June 2008), Gisèle
Halimi, President of the association “Choisir la cause des femmes”
(Choose the women’s cause), presented
her draft of the “most favoured European woman clause” which would constitute
“a kind of legislative bouquet offered to every European woman”.
Note This proposal
was unique in that it set out to combat horizontal discrimination
between women living in different member states of the European Union.
2. At the end of that meeting, Lydie Err (Luxembourg, SOC) and
others tabled a motion for a resolution to “extend the ‘most favoured
European woman clause’ to all the member states of the Council of
Europe”.
Note Ms Err represented the Parliamentary
Assembly at the European colloquy entitled “The most favoured European woman
clause: the best of Europe” organised by “Choisir la cause des femmes”
in Paris on 27 and 28 November 2008. On 5 December 2008, the Committee
on Equal Opportunities for Women and Men appointed me rapporteur.
2 What
is the “most favoured European woman clause”?
3. In June 1971, Gisèle Halimi, an attorney and defender
of women’s rights, together with a large number of French intellectuals,
created the association “Choisir la cause des femmes”, which seeks
to defend the status of women in French society. Its aims include
combating rape and physical and mental violence, and the fight for
equal representation for women in politics. Since 2005, this group,
which brings together researchers, jurists, economists and sociologists,
has carried out important work to elaborate “the most favoured European woman
clause” on the basis of a comparative analysis of legislation. That
work aims to pinpoint the laws which are most favourable to women
in the different legislative provisions of the European Union’s
member states affecting every aspect of women’s lives.
4. In 2008, Gisèle Halimi defined “the most favoured European
woman clause” as “a mechanism which would enable European women
to enjoy the highest status granted to women in any community state”.
Ms Halimi went on to identify, in the positive law in force in the
27 countries of the European Union, the best laws currently in European
countries.
Note All these laws
together should constitute the foundation of European legislation,
and be implemented without distinction throughout the European Union.
5. Five main aspects of women’s rights have been identified:
choosing to give birth (sex education, contraception, abortion);
“the family, haven of peace or a trap for women” (marriage, divorce,
parental leave, parental authority); violence, battered women, rape,
women forced into prostitution (marital violence, rape, prostitution,
harassment); “work: women’s financial independence as the basis
for all women’s liberties”; and “politics: what form of democracy
for women”. For each topic the association has identified the most
advanced model legislation in each country.
6. Today, “Choisir la cause des femmes” is working to raise awareness
among European Union bodies and the member states of the European
Union. These initiatives include a proposal to set up a European
Parliament intergroup on the clause and to draw up a multilateral
convention “associating Belgium, Spain, Sweden and France [and inviting]
the contracting parties to make their legislation compatible with
the most favoured European woman clause”.
Note In Belgium, Olga Zrihen, a member
of the Belgian Senate, tabled a draft resolution in the senate on
24 January 2007 aimed at implementing “the most favoured European
woman clause”.
Note In France, the National Assembly
adopted Resolution No. 421 on 23 February 2010 designed to promote
the harmonisation of European legislation applicable to women’s
rights. Numerous contacts have been established in order to promote
the “upward” harmonisation of legislation in the field of equality
between women and men within the European Union.
3 Taking inspiration
from the “most favoured European woman clause” to promote the progress
of women’s rights in all Council of Europe member states
7. The work of the Council of Europe is based on respect
of the rule of law (including the principle of non-discrimination),
respect for human rights and pluralist democracy (including equality
between women and men). Yet it must be said that equality between
women and men, regarded as a fundamental criterion of democracy,
Note is
by no means the reality. We still have to “bridge the gap between
de jure equality and de facto equality”, as was emphasised during
the 7th Council of Europe Conference of Ministers responsible for
equality between women and men, held in Baku on 24 and 25 May 2010.
8. Moreover, depending on which European state they live in,
women do not enjoy the same rights, do not have access to the same
respect for their fundamental rights or equal protection of their
integrity – in particular of the risk of exposure to gender-based
violence – or the same opportunities for personal development, whether
in their private or their public lives. Thus, I find that within
the Council of Europe area women are victims of “territorial” discrimination.
Even worse, a decline in fundamental rights is unfortunately being observed
on a global scale and, despite the legislative advances achieved
in Europe, this is being reflected in a mental retreat which is
leading women to leave the labour market.
9. The draft “most favoured European woman clause” is an innovative
and stimulating initiative which should encourage us to adopt the
best possible laws for equality between women and men in Europe.
The networking of national experiences within the Council of Europe,
the work done both by the Parliamentary Assembly and by the Council
of Europe as a whole,
Note and the wish expressed
by Council of Europe Secretary General Thorbjørn Jagland to make
gender equality a priority for our Organisation in the coming years, encourage
me to continue in this direction. This report sets out to identify,
among the legislative provisions of Council of Europe member states,
those which are most favourable to women, and to suggest that the lawmakers
in all Council of Europe member states take inspiration from them.
10. I consider equality between women and men as far from being
achieved, both de facto and de jure. To make sure that this question
continues to be given priority by national parliaments, and in order
to get parliamentarians more actively involved in the subjects which
we have identified as priorities, I suggest that the Assembly prepare
a handbook for parliamentarians on the promotion of equality between
women and men, offering tools and a number of good legislative practices
on which parliamentarians can base their activities. The handbook
could draw on work already published by the Assembly, the Handbook for parliamentarians on combating
domestic violence against women and the Handbook for parliamentarians on the Council
of Europe Convention on Action against Trafficking in Human Beings.
11. The purpose of this report is to identify the topics which
could be selected in order to propose a “Council of Europe legislative
bouquet to foster equality between women and men”, drawing on the
method developed by Gisèle Halimi. At the meeting on 27 May 2010,
the Committee on Equal Opportunities for Women and Men agreed to
the subjects which could be included in the Council of Europe legislative
package. This report endeavours to identify exemplary laws – partly
inspired by the good practices identified by Gisèle Halimi in the states
of the European Union – and to propose activities which could be
carried out by member states. The list is far from exhaustive and
work on identifying the most advanced forms of legislation should
continue and be extended.
4 A proposed “legislative
package” to take women’s rights forward in all Council of Europe
member states
12. Identifying a “legislative bouquet to foster equality
between women and men” from among the 47 member states of the Council
of Europe is an ambitious project. So I suggest limiting the number
of subjects selected, giving preference to the fields that are Council
of Europe areas of strength or on which the Assembly and/or the
Council of Europe as a whole have already taken a stance.
13. In order to define this Council of Europe “model legislative
package”, and further to my proposal, the committee decided to select
the following five subjects, which are developed below:
a combating violence against women
in Europe;
b combating trafficking in human beings;
c participation of women in political and public life and
combating sexist stereotypes;
d reproductive health (including sexual and reproductive
rights);
e women and economic life.
4.1 Combating violence
against women
14. Combating violence against women has been the subject
of many Council of Europe studies over several years.
14.1 In Recommendation CM/Rec(2007)17
on gender equality standards and mechanisms, adopted on 21 November
2007, the Committee of Ministers considered that “violence against
women is one of the most serious violations of human rights and
fundamental freedoms of women”
Note and recommended that
the Council of Europe member states “enforce legislation and effective
judicial procedures to prevent violence against women”.
Note This recommendation
supplements Recommendation Rec(2002)5 on the protection of women
against violence.
14.2 For over a decade,
Note the
Assembly has been engaged in combating violence against women. This
has been reflected in particular by the implementation of the parliamentary
dimension of the Council of Europe campaign “Stop domestic violence
against women” (2006-2008). In its
Resolution 1582 (2007) on “Parliaments
united in combating domestic violence against women”: mid-term assessment
of the campaign, and then in its
Resolution 1635 (2008) on combating
violence against women: towards a Council of Europe convention,
the Assembly invited national parliaments to adopt, and monitor
the application of, the seven landmark measures identified by the
Assembly and regarded as minimum standards.
Note
14.3 In support of the efforts of national parliaments, the
Assembly drafted a
Handbook for parliamentarians
on combating domestic violence against women, suggesting
awareness-raising and legislative and standard-setting actions designed
to prevent and combat this violation of the rights of the human
being. The
Compendium of parliamentary
actions and good practices, published by the Assembly
at the end of the campaign was an opportunity to highlight effective
lines of action developed by national parliaments.
Note
14.4 Today, the Council of Europe is working on a draft convention
on preventing and combating violence against women and domestic
violence which will bring together a body of rules and standards on
the protection of victims, prosecution of offenders, prevention
and policies to foster equality between women and men.
Note The
Committee on Equal Opportunities for Women and Men is closely associated with
the drafting of that text and will be involved in promoting its
implementation.
15. Combating violence against women remains an action priority
for the Council of Europe. However, legislation within the 47 member
states is at varying stages of advancement and the successful ratification
of the future Council of Europe convention and its implementation
throughout the European continent will depend on the ability of
the member states to adopt and put into practice effective legislation.
16. In this field, the Spanish law of 28 December 2004, known
as the “outline law on integral protection measures against gender
violence”, is particularly well advanced. It comprises measures
to generate awareness of gender violence in schools from the earliest
years,
Note and the
training of public service personnel to recognise women who are
the victims of violence so that they can be referred to police services
and reception centres. The law also comprises emergency protection
measures for victims,
Note requiring
that the victim be immediately physically separated from the perpetrator
of the violence and guaranteeing protection of victims. It lays
down heavy penalties for offenders, together with specific aid programmes
for victims. Lastly, it provides for the establishment of special
courts, each of them having a judge specially trained to deal with violence
against women; sections constituted in this way must be set up in
ordinary courts and appeal courts. The Spanish law might be seen
as a model from which the other member states of the Council of
Europe could take inspiration.
17. Since 1996, Austria’s law on protection against violence within
the family has enabled the civil courts to issue, for the benefit
of victims, protection orders which can, in particular, provide
for exclusive use of the family home, enable the police to expel
from the family home the perpetrator of marital violence pending
a court decision, or organise co-operation between the police, the
courts and local facilities set up to help women.
Note
18. Where combating violence against women is concerned, the Assembly
should recommend that member states draw inspiration from:
- Spain’s outline law on integral
protection measures against gender violence, for the complete range
of measures which it includes in respect of the protection and rehabilitation
of victims and the prevention of violence against women;
- Austria’s law, for the measures to remove the violent
spouse and the arrangements for multi-agency co-operation set up
to assist victims.
4.2 Combating trafficking
in human beings
19. The fight against trafficking in human beings – including
trafficking for purposes of sexual exploitation which affects women
in particular, organ trafficking and forced labour – culminated
in 2005 with the adoption of a Council of Europe Convention on Action
against Trafficking in Human Beings (CETS No. 197).
Note Furthermore,
Recommendation CM/Rec(2007)17 from the Committee of Ministers to
member states on gender equality standards and mechanisms invites
member states to adopt and enforce legislation and effective judicial
procedures to protect victims of trafficking and punish perpetrators.
In
Resolution 1702 (2010) on
action against trafficking in human beings: promoting the Council
of Europe convention, the Assembly invited national parliaments
to promote the ratification and implementation of this convention
and its monitoring mechanism.
20. In
Resolution 1702
(2010), member states are invited to examine the legislation
in force in Sweden and the United Kingdom,
Note which
constitutes reference legislation in favour of women in combating
human trafficking, and which could be included in the “legislative
package” proposed by the Council of Europe.
21. In its “Handbook for parliamentarians on the Council of Europe
Convention on Action against Trafficking in Human Beings”, the Assembly
identified several legislative measures, some of which are highlighted
below:
22. The Assembly should recommend that member states draw inspiration
from:
- the Swedish and British
laws combating the trafficking of human beings, making it a crime
to pay to have sexual relations with women working as prostitutes
who have been trafficked or coerced by men;
- the Belgian laws of 2003 on assistance to victims of human
trafficking and against the practices of “traders in sleep”;Note
- Bulgaria’s Crime Victim Assistance and Financial Compensation
Act of 2007.Note
4.3 Balanced participation
of women and men in political and public decision-making bodies
23. Following the adoption of Recommendation Rec(2003)3
on balanced participation of women and men in political and public
decision making was identified as a “crucial element of democracy”
in the Action Plan adopted at the 3rd Council of Europe Summit of
Heads of State and Government in May 2005. In a declaration in May
2009, the Committee of Ministers reasserted that equal participation
by women and men in political life is one of the foundations of
democracy and one of the Organisation’s aims.
24. The Assembly has adopted a series of resolutions and recommendations
aimed at promoting participation by women in decision making.
Note Most recently, the Assembly adopted
Recommendation 1899 (2010) on
increasing women’s representation in politics through the electoral
system (rapporteur: Ms Err, Luxembourg, SOC) and called for “reforms
to the electoral system to make it more favourable to women’s representation”
Note and “positive discrimination
measures for the under-represented sex”
Note in Council of Europe member states.
25. Ms Err’s report highlights the case of Belgium, one of the
10 Council of Europe member states which has adopted binding legal
quotas for national parliaments and also regulated the order of
candidates on lists.
Note The Belgian law
Note has
in fact been selected by Gisèle Halimi and could be included in
the Council of Europe’s “legislative bouquet”.
26. Any attempt to secure balanced participation of women and
men in decision making also requires us to combat stereotypes, particularly
in the media, as the Parliamentary Assembly stressed in its
Resolution 1751 (2010). Note The
violent or biased reactions to the explanatory report to this resolution
in certain media outlets show that this is still a sensitive and
controversial subject that is at the heart of the battle for equality
between women and men. The lack of visibility of women in the media,
their under-representation and the persistence of sexist stereotypes
that confine women and men to the traditional roles assigned to
them by society are all obstacles to equality between women and
men.
27. Furthermore, the Assembly, by introducing its Gender Equality
Prize in 2009, emphasised the fundamental role of political parties
in promoting women’s access to decision-making positions in parties
and to elected offices, and the need to promote positive measures
to this end. The 2009 prize was awarded to the Portuguese Socialist
Party, which managed to obtain, while it was in government, a compulsory
minimum quota for all parties at all elections of 33% of candidates
of the under-represented sex, thereby exporting to all the other
parties the voluntary quota that had been agreed with the Socialist
Party itself.
Note
28. The Assembly should invite Council of Europe member states
to draw inspiration from:
- the
Belgian law which incorporated parity into the constitution, introduced
quotas at every level of decision making and provides for effective
penalties by rendering inadmissible, for all elections, lists which
do not comply with the law;
- the Portuguese law which made a minimum quota of 33% of
women compulsory for all political parties at all elections.
4.4 Reproductive health
29. The Assembly has dealt with the subject of reproductive
health on several occasions. In
Resolution 1399 (2004) on a European
strategy for the promotion of sexual and reproductive health and
rights, the Assembly recommended that member states work together
to design a European strategy for the promotion of sexual and reproductive
health and rights and to devise, adopt and implement comprehensive
national strategies on sexual and reproductive health. In 2010,
in its
Recommendation
1903 (2010) “Fifteen years since the International Conference
on Population and Development Programme of Action”, the Assembly
exhorted member states to “ensure access to comprehensive sexual
and reproductive health services with particular attention to ensuring
access to affordable, acceptable and appropriate family planning
methods, skilled birth attendants and obstetric emergency care to
prevent unwanted pregnancies, abortions, sexually transmitted infections
and maternal ill health and death”.
30. Where abortion in particular is concerned, the Assembly invited
the member states, in
Resolution 1607 (2008) on
access to safe and legal abortion in Europe
, to
decriminalise abortion if they have not already done so and lift
restrictions which hinder, de jure or de facto, access to safe abortion.
It observes that the ultimate decision on whether or not to have
an abortion should be a matter for the woman concerned, who should
have the means of exercising this right in an effective way.
Note
31. In her chapter “Choosing life”, Gisèle Halimi highlights the
situations in Denmark, with its sex education beginning at primary
school and its family planning centres; in the Netherlands, with
direct and free access to contraception for girls and women and
in Sweden, where women’s right to control their own bodies is respected and
where the statutory time limit for abortion is eighteen weeks.
Note
32. Where reproductive health is concerned, and particularly access
to safe and lawful abortion, it is important to ensure that women
can actually exercise their rights. In this context, as Ms McCafferty
(United Kingdom, SOC) has pointed out, unregulated use of conscientious
objection hinders women’s effective access to lawful medical care.
In this field, some countries have organised their health-care systems
and personnel recruitment in such a way as to ensure that there
are doctors who are willing and able to provide services. For example,
guidelines on the appointment of doctors to hospital positions,
issued by the United Kingdom National Health Service, recommend
that termination of pregnancy duties should be a feature of the
job when adequate services for termination of pregnancy “would not
otherwise be available”, that the job description should be explicit
about termination of pregnancy duties and that applicants should
be “prepared to carry out the full range of duties which they might
be required to perform if appointed”, including duties related to
termination of pregnancy.
Note
33. The Assembly should recommend that inspiration be drawn, where
reproductive health is concerned, from the laws of:
- the Netherlands, in respect
of direct and free access to contraception for girls and women;
- Denmark, in respect of sex education classes which begin
at primary school and family planning centres;
- Sweden, relating to respect for women’s right to control
their own bodies;
- the United Kingdom, in respect of a health-care system
and personnel recruitment that are organised in such a way as to
ensure that there are doctors willing and able to provide reproductive
health-care services.
4.5 Women and economic
life
34. The Committee of Ministers of the Council of Europe
laid down the principle of participation by women and men in decision
making, in the economic field and elsewhere, in Recommendation Rec(2003)3.
The Assembly has worked in particular on combating discrimination
in the labour market and pension systems
Note and equal pay,
Note and on the preparation of a report on
“More women in economic and social decision-making bodies”.
NoteNote
35. With regard to balanced participation of women and men in
economic decision making, Norway has introduced quotas requiring
a minimum of 40% of women on management boards, whether in the private
or the public sector. The Norwegian example may be offered as good
legislative practice and, according to the rapporteur on the wage
gap between women and men, help to reduce this wage gap.
Note
36. The Assembly should recommend that inspiration be drawn from:
- the Norwegian legislation on
the introduction of a 40% quota of women on firms’ management boards;
- the Scandinavian (particularly Icelandic, NorwegianNote and Swedish)
legislation introducing a minimum parental leave for fathers, encouraging
fathers to take paternity leave.
5 Conclusions
and recommendations
37. By defining a “Council of Europe legislative bouquet
to foster equality between women and men”, the Parliamentary Assembly
would identify the most advanced legislation in the member states
of the Council of Europe in the five areas mentioned. It could encourage
national parliaments in the member states to take inspiration from
it in order to propose the most progressive laws for all women living
on the European continent.
38. The Assembly could invite the national parliaments of the
Council of Europe member states to:
- include in their priorities and on their political agenda
those subjects identified by the Assembly as priorities, namely:
a combating violence against
women in Europe;
b combating trafficking in human beings;
c participation of women in political and public life; combating
sexist stereotypes;
d reproductive health (including sexual and reproductive
rights);
e women and economic life.
- use International Women’s
Day (8 March) to promote the Council of Europe’s “legislative bouquet”,
and particularly to evaluate the progress of women’s rights in their
own country.
39. The Assembly could decide to:
- prepare a “Handbook
for parliamentarians on the promotion of equality between women
and men”, which would make it possible to identify the parliamentary
strategies to be developed within parliaments and good legislative
practices for promoting the “legislative bouquet” identified by
the Assembly;
- promote parliamentary co-operation programmes (subject
to the availability of funds) to promote gender equality within
national parliaments.
40. Lastly, the Assembly should invite the Committee
of Ministers to guarantee to all women, wherever they may live within
the Council of Europe area, the same rights to gender equality as
well as uniform interpretation of those rights, through the drafting
of an additional protocol to the European Convention on Human Rights
on equality between women and men.
