Equality Before the Law in the CEDAW

Article 15: of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) stipulates, in relation to Equality Before the Law, that all countries are required to ensure that women are given equality before the law. In particular, women must have the same legal capacity as men to enter into contracts and to own property, and they must be given equal treatment in the courts. Laws regarding freedom of movement within the country and choice of residence must treat men and women equally.

The Equality of States

Lassa Oppenheim, in the book entitled The Future of International Law, about The Equality of States, wrote in 1921: 28. The proposed constitution, further, makes no inroad at all on the equality of states. This equality is the indispensable foundation of international society. The idea of equality merely expresses the fact that in all resolutions of the international society every state, whatever may be its size and political importance, obtains one voice and no more than one, that every state can be bound by a resolution only with its consent, and that no state can exercise jurisdiction over another state. It does not and cannot express more.

In no circumstances is it to be asserted that unanimity is a condition for all resolutions of the Conferences, and that all resolutions are void to which one or more states refuse their consent. Of course, such resolutions bind those only who assent to them, and of course unanimous resolutions alone can be considered to be universally binding. But nothing should hinder the Conferences–and so it happened in the two first Conferences–from passing majority resolutions. It must never be lost sight of that such majority resolutions do not go to form a universal but only a general law of nations. Only he who repudiates the necessary distinction between a particular and a general and a universal law of nations can demand unanimity. Now the development which up to the present has taken place in the law of nations has shown the necessity of this distinction.

It would be extremely difficult to enumerate any large number of universally accepted rules of the law of nations–apart from those which have obtained recognition as customary law. We have only to think of the Declaration of Paris, to which some states still refuse assent. History also teaches us that the general law of nations has a tendency gradually to become the universal law of nations. It is therefore permissible, when a forward step which fails to gain unanimous approval has become a practical matter, for that majority of states which is ready for it to take the step by themselves; the dissenting states will give in their adhesion in course of time. And if and when this should turn out not to be the case, such a majority resolution would anyhow represent, in a narrower circle of international society, a step forward from which there is no obligation to forbear merely because others are unwilling to join in taking it.

Does the Constitution of the International Prize Court Violate the Principle of the Equality of States?

Lassa Oppenheim, in the book entitled The Future of International Law, about Does the Constitution of the International Prize Court Violate the Principle of the Equality of States?, wrote in 1921: 53. It is alleged that the principle of equality is violated in that the Prize Court is contemplated as consisting of fifteen members, so that, while the eight Great Powers are always represented by a member, the thirty-seven smaller states are only represented by seven members who take their seats in the court in rotation according to a definite plan.

Now it is not clear how the principle of equality can be deemed violated thereby. This principle has really nothing to do with the constitution of an international court so long as no state is compelled to submit itself to such a tribunal against its will. It would be possible to constitute an international court without basing it on the representation of definite states, and that is very likely to come to pass in the future, when fuller confidence in the international judicature is felt. In the proposed composition of the Prize Court expression is given, undoubtedly, to the actually existing political inequality of states, a matter which, however, has not the least connexion with their legal equality. This political inequality will never disappear from the world, and if in course of time the creation of an international judicature is really intended, the realization of this idea is only possible subject to the existence of political inequality. There is little doubt that when we come to the constituting of the Prize Court certain smaller states will abstain because no permanent representation therein is allotted to them. But it may confidently be expected that the recalcitrant states will give in their adherence in the future, when they begin to see what beneficent results the institution has produced.


See Also

  • International Human Rights
  • Discrimination
  • Gender Law
  • Women
  • Nationality
  • Civil Liberty
  • Civil Right
  • Legal Right
  • Citizen Freedom
  • Political Liberty
  • Constitutional Right
  • Political Right
  • Freedom of Speech

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