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The Ratification and Implementation of CEDAW in China
May 04,2017   By:CSHRS

 The Ratification and Implementation of CEDAW in China

 ZHANG  Xiaobing*

Abstract: As one of the first signatories which ratified "the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)" in 1980, China has taken a series of measures, covering law, policy, society and so on to strictly fulfill the obligations of States parties, improving the social status of women, giving more opportunities and rights to women during the past 30 years, and the effect is significant. However, women's employment, political participation, health, domestic violence against women have not been well addressed, and there is still room for improvement about the problems concerning girls, rural women, older women and other special groups of women. We cannot just stay at the stage of empowerment. what is more important is to change social customs and social environment, to improve the ability of women to exercise their rights, to promote the equality on the ability to achieve real justice and to promote the development of the cause of gender equality.

Keywords: CEDAW,  China,  discrimination, women

I. The Ratification of CEDAW in China

For a long time, the cultural tradition of “man is superior to woman” and the unequal gender concept are prevalent in almost every country in the world. How to change the treatment of women in terms of traditional custom, ideological situation and legal status and so on has gradually become an important issue. Social organizations and positive individuals have already adopted various measures to safeguard the equality of women. However, it is undoubtedly a more substantive measure to eliminate the discrimination against women from the legal angle. On December 18th 1979, the General Assembly adopted the Convention on the Elimination of All Forms of Discrimination against Women (hereinafter referred to as CEDAW) which formally came into effect on September 3th 1981. In the past more than thirty years, CEDAW has played a decisive role in the international and domestic society and exerted powerful vitality from the elimination of discrimination against women to equal treatment of women and from the improvement of the status of women to the guarantee of the human rights of women. It is thus called the charter of the human rights of women.

On July 17th 1980, Kang Keqing, vice chairman of the Chinese People’s Political Consultative Conference and chairman of the All-China Women’s Federation, attended and signed CEDAW, presenting the Chinese government as the head of the Chinese delegation in the Second World Conference on Women held in Copenhagen Denmark.1 China became one of the earliest signatory states. In September 1980, the State Council presented “the Bill of Requesting for Ratification of the Convention on the Elimination of All Forms of Discrimination against Women of the United Nations” to the Standing Committee of the National People’s Congress. The Bill points out that the overall spirit of the Convention reflects the request and concern of third world countries and people under colonial domination and foreign occupation for the protection of fundamental rights of women and the advancement of women in status, and the specific terms of the Convention were of no fundamental conflict with the Constitution, Marriage Law and other laws of China. Since China always sustains the standpoint of not accepting compulsory jurisdiction of the International Court of Justice, it also declares the rejection of constraint from this term when signing the Convention.2 In the Sixteenth Session of the Standing Committee of the Fifth National People’s Congress held soon afterwards, CEDAW was ratified with reservation to Paragraph 1 of Article 29. Although the Convention does not prohibit the entering of reservations, those which challenge the central principles of the Convention may be challenged by other States parties. Articles 2 and 16 are considered by the Committee to be core provisions of the Convention. Although some States parties have withdrawn reservations to those articles, the Committee is particularly concerned at the number and extent of reservations entered to those articles. The Committee holds the view that Article 2 is central to the objects and purpose of the Convention. States parties should condemn discrimination against women in all its forms and implement the strategies set out in Article 2, Subparagraphs (a) to (g) to eliminate it. The Committee also remains convinced that reservations to Article 16, whether lodged for national, traditional, religious or cultural reasons, are incompatible with the Convention and should be reviewed and modified or withdrawn.

The ratification of CEDAW in China is of theoretical and practical significance. In theory, on the one hand, the ratification means that the Convention becomes a legally binding domestic norm; on the other hand, the ratification actually introduces the Convention into the domestic academic field which makes huge contribution to the intellectural contention of hundreds schools. In practice, firstly, the ratification of the convention has become an important channel to be compatible with international standards and in the meantime a way to accept international supervision; secondly, the ratification urges the State to actively fulfill its obligations as a States party, carry out the aim and objective of the Convention and adopt legislative, judicial and enforcement measures to eliminate all forms of discrimination against women; finally, the ratification can respect and guarantee the rights of women at a higher level in order to achieve the goal of promoting gender equality, opposing gender discrimination, respecting and safeguarding human rights in China. To summarize, the ratification of CEDAW in China has extraordinary significance. It will increase the universality of the rights of women so as to promote the development of the cause of women’s human rights and advance the progress of gender equality in China.

II. Basic Measures and Effect of the Implementation of CEDAW in China

The most important contribution of CEDAW to the cause of women’s human rights lies in that it establishes an international institution which is responsible for the supervision of progresses made in the process of eliminating all forms of discrimination against women.3 According to Article 18 of CEDAW, States Parties undertake to submit to the Secretary-General of the United Nations, for consideration by the Committee, a report on the legislative, judicial, administrative or other measures which they have adopted to give effect to the provisions of the present Convention and on the progress made in this respect. China submitted the initial report in 1982; the second report in June 1989 which was reviewed in 1992; the merged report of the third and fourth ones in May 1997, supplementary report in 1998 which was reviewed in January 1999; the merged report of the fifth and sixth ones in March 2004 which was reviewed in August 2006; the merged report of the seventh and eighth ones in 2011 which was reviewed in October 2014. We will analyze the situation of implementation and existing problems in accordance with the reports and the results of the reviews with reference to the actual domestic situation.

The ratification of CEDAW means the acceptance of international norms on gender equality which in turn requests the domestic legislation to make some corresponding changes.4 As an international convention, it has correlation with domestic laws, which is generally reflected in two main methods, “incorporation” and “conversion”. The former means that the Convention possesses the feature of direct application at home, and the latter means that the Convention should be converted into domestic law before application. In accordance with relevant provisions and practices of current international laws of China, it is a typical representative of “conversion”. In other words, there is still a step or several steps between the ratification of the Convention and its implementation which calls for various forces covering legislation, judicature, administration and society to make efforts. There have been over thirty years since the ratification of CEDAW in China, and comparatively huge adjustments have made in all aspects following which social gender consciousness is gradually permeating into laws, policies and social activities with remarkable effect. We will discuss this mainly from three aspects: legislative measures, relief measures and social promotion measures. Discussions about the implementation of CEDAW in domestic academic circle are not so common, mainly including the following papers: Implementation of the Convention on the Elimination of All Forms of Discrimination against Women in China written by Huang Lie analyzes the following aspects: changes of domestic laws; changes of administration, law enforcement and judicial practices; guarantee from mechanism; participation in education, publicity, advocacy and civil society; special temporary measures. In another paper called Analysis on Domestic Application of the Convention on the Elimination of All Forms of Discrimination against Women, Huang Lie mainly discusses the application of the Convention in specific women issues, for example, the definition of discrimination against women, women suffrage, right to work, rural women and violence against women. Analysis on Domestic Application of the Convention on the Elimination of All Forms of Discrimination against Women written by Dai Ruijun mainly demonstrates the challenges faced by the Convention during domestic application and analyzes the reasons of application predicament. Xiao Qiaoping pays much attention to Law of the People’s Republic of China on the Protection of Rights and Interests of Women,5 while Zhang Aining is concerned about the international protection of human rights of women6 and Jiang Xiuhua narrows the focus on the health of women.7

A. At the legal and international convention level

In accordance with the provisions of CEDAW, China has taken many corresponding measures in the legislative aspect. A series of laws and regulations promoting gender equality including Marriage Law, General Principles of the Civil Law, Anti-Domestic Violence Law, Labor Contract Law, Compulsory Education Law, Succession Law, Employment Promotion Act, Social Insurance Law and Law on Maternal and Infant Health Care have been enacted based on Constitutional Law with Law of the People’s Republic of China on the Protection of Rights and Interests of Women as the core,8 and have made solid foundation for the achievement of lawful rights of women. We only take a few of the most typical ones to analyze in the following part.

1. Law on the Protection of Rights and Interests of Women, enacted in 1992 and revised in 2005, mainly stipulates that gender equality is the basic state policy and the principle for eliminating all forms of discrimination against women, and stresses the key point of the protection of rights and interests of women. It also makes provisions on such issues of general concern for the society as women’s political participation, gender discrimination in employment, domestic violence, sexual harassment and contracting land of rural women and relevant property rights and interests.9

2. With the ratification of CEDAW and the restored legal construction since the 3rd Plenary Session, the current Marriage Law was passed on the National People’s Congress of 1980 and was revised in 2001, adding provisions on the prohibition of cohabitation of a married person with any third party, the prohibition of domestic violence, faithfulness between husband and wife, void marriage system, the principle of divorce compensation, the principle of fault compensation and the refined property problems and so on. Those new provisions can serve as the guarantee of rights and interests for the disadvantaged party in marital relations, especially women.10 More than thirty years passing since the formulation of Marriage Law, changes shifting from the stress of control to the respect of private right and from the pursuit of equality and just to the stress of judicial efficiency promote the protection to jump from formal justice to substantive justice.11

3. In 2007, the Standing Committee of the National People’s Congress adopted the Employment Promotion Act which stipulates that laborers shall have the right to be employed and choose occupations on an equal basis. In fact, the discrimination against women is most explicitly reflected in the employment field. Due to the natural physiological feature of women, the employers are unwilling to employ women on some key positions. The promulgation of the Employment Promotion Act is exactly to eliminate such kind of discrimination.

In addition to the laws mentioned above, the comprehensively revised Compulsory Education Law in 2006 also further perfects the financial investment and the guarantee mechanism of compulsory education funds, which provides solid legal basis for girls, especially girls in rural areas, minority areas and families with financial difficulties and disabled girls, to enjoy the equal right to receive education. The Labor Contract Law passed in 2007 stipulates that an employer shall not terminate the labor contract with a woman who is in her pregnancy, confinement or nursing period. The Social Insurance Law adopted by the Standing Committee of the National People’s Congress 2010 stipulates that workers shall participate in maternity insurance and thematernity insurance premiums shall be paid by the employing entities in accordance with the provisions of the State. There are also provisions on the protection of rights and interests of women in Law on the Mediation and Arbitration of Rural Land and Contract Disputes, Law of the Protection of Juveniles and Law on the Protection of Disabled Persons.

As to international conventions, since 1979, China has ratified the following conventions which are related with the elimination of discrimination against women: Equal Remuneration Convention (1990) of the International Labor Organization, Convention on Employment Policy (1997) of the International Labor Organization, International Covenant on Economic, Social and Cultural Rights (2001) of the United Nations, Elimination of discrimination in Respect of Employment and Occupation, 1985 (2006) of the International Labor Organization, Convention against Transnational Organized Crime and specifically the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (2009) of the United Nations. The Beijing Declaration and Platform for Action passed on the Fourth World Conference on Women held in Beijing, China in 1995 have generated significant influence on promoting gender equality and the development of women all over the world. China earnestly implements the international conventions and submitted the Executive Achievement Report of Beijing Declaration and Platform for Action passed on the Fourth World Conference on Women held in Beijing, China in 1995 of the People’s Republic of China in May 2000 and the Report on the Implementation of Beijing Platform for Action (1995) and Outcome Document of the Twenty-third Special Session of the General Assembly of the United Nations (2000) of the People’s Republic of China in March 2005. These conventions provide for gender equality and elimination of discrimination against women from various aspects which enrich the content since CEDAW.

B. At the level of regulation and policy

Apart from laws and international conventions, China also actively formulates many relevant regulations and policies. In 1995, China issued the Program for the Development of Chinese Women (1995-2000). In 2001, the Program for the Development of Chinese Women (2001-2010) was issued including 34 main objectives and 100 strategic measures in fields of women and economy, women’s participation in decision-making and management, women and education, women and health, women and law and women and environment. The Program for the Development of Chinese Women (2011-2020) issued in 2011 determines the main objectives and strategic measures in fields of health, education, economy, decision-making and management, social insurance, environment and law as well as other fields in order to guarantee the legal rights and interests of women, improve the social status of women and promote women to equally exercise their democratic rights in accordance with law, equally participate in the economic and social development and equally enjoy the achievements of reform and development.

In the Outline of the 11th Five-Year Plan for National Economic and Social Development and the Opinions of the State Council on Accelerating the Development of the Service Industry (2006-2010), the government specially formulates a section called “Protect the Interests of Women and Children” which puts forward that “the basic state policy of gender equality needs to be implemented, the Program for the Development of Chinese Women shall be carried out and women should be guaranteed to enjoy equal rights to attend school, be employed, enjoy social security, obtain marital property and participate in social affairs”. In 2007, the Chinese government issued the Action Plan of Anti-Trafficking in Women and Children of the People’s Republic of China (2008-2012) which covers such aspects as the prevention and crackdown of trafficking and the salvation, repatriation, recovery and international cooperation of the victims and so on. In 2008, China issued Several Opinions on Preventing and Stopping Domestic Violence in which police departments are expected to intervene in domestic violence within the 110 emergency scope. Afterwards, China issued the National Human Rights Action Plan (2009-2010) in 2009, the National Human Rights Action Plan (2012-2015) in 2012 and the National Human Rights Action Plan (2016-2020) in 2016. All of the above three human rights action plans involve women rights, proposing to promote the equal rights of women with men in every aspect.

Apart from the above regulations and policy documents, the Chinese government and related departments also adopt a series of concrete measures among which are some ad hoc special measures. In accordance with the seventh and eighth reports of China on the implementation of CEDAW, the measures adopted by China generally cover political participation, employment, health, protection of rights and education and so on. In terms of political participation, China attaches great importance to the cultivation and selection of women cadres. Since 2006, the number of women cadres at and above the county level trained by the Party School of the Central Committee of CPC, China National School of Administration, China Executive Leadership Academies in Pudong, Jinggangshan and Yanan and so on reaches 10,040 while the proportion of women public servants newly employed by the central authority remains above 40 percent. In respect of health, in recent years, central and local governments have invested more than 2 billion yuan in the project of “reducing maternal mortality and eliminating neonatal tetanus”. From 2008 to 2010, the Central Government spent 7 billion yuan on the subsidy for rural maternal hospital delivery nationwide. Since 2009, the Central Government supplies free folic acid for rural reproductive women, provides free check programs of breast cancer and cervical cancer for rural women and timely starts the treatment work for poor women with illness.12

C. At the judicial level

No relief, no rights. As the last ditch of right protection, judicial relief also exerts tremendous effects in eliminating discrimination against women. In 2010, the Opinions on Legally Punishing the Crimes of Abducting and Trafficking in Women and Children jointly issued by the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security and the Ministry of Justice strengthens the judicial protection of legal rights and interests of women and children. Till 2011, courts at all levels set up the “collegiate panel for the safeguard of women’s right” and the “collegiate panel against domestic violence” with 8000 cadres from the Women’s Federation as people’s assessor13. The intermediate people’s courts and basic people’s courts also establish criminal tribunal for juveniles while the high people’s courts can set up collegiate panel for juvenile criminal cases. The above two are collectively called juvenile court. The Changning District People’s Court of Shanghai is the first juvenile court set up in China which pays close attention to the special relationship between parents and children to further safeguard the rights and interests of women.

The Chinese government also establishes more than 12 thousand complaint centers and alarm points for domestic violence and sets up asylum centers of domestic violence in the relief station of nearly 60 cities. The network of consultation and complaint is perfected and channels for complaint are smoothed. The service hot-line 12338 for the protection of women’s right is launched in China’s 31 provinces, autonomous regions and municipalities. Till 2010, the hot-line service has been opened up across more than 2,800 counties.14

D. At the social level

Besides the legislative and judicial areas which have the guarantee of national level, all sectors of the society gather strength to eliminate the discrimination against women. Media institutions conduct propaganda over the ideas and content of the convention. Mainstream media, like People’s Daily and Women of China and so on, publish interview manuscripts of leaders containing the basic state policy of gender equality for several times to further strengthen the awareness of responsibility of government departments.

The Chinese government also attaches great importance to exert the function of non-governmental organizations (NGO) related with the development of women. All-China Women’s Federation, All China Federation of Trade Unions, the Central Committee of the Communist Youth League of China, China Disabled Persons’ Federation and China Association for Science and Technology effectively carry out the work of promoting gender equality in accordance with their purpose.15 Here, we take the All-China Women’s Federation as a representative to explain clearly. The All-China Women’s Federation (hereinafter referred to as “ACWF”) is the biggest NGO in China aiming to promote gender equality and the development of women. Its organization system is extensively representative, for the public and the society which includes local federations and group members at all levels. The ACWF actively promotes the legislative process related with the rights and interests of women, holds programs on education to popularize legal knowledge, publicizes the concept of gender equality and also conducts surveys on the status of women. In September 2010, after the first and second phases of surveys in 1990 and 2000, the State Statistics Bureau and the ACWF jointly launches the third phase of survey with the purpose of obtaining objective knowledge of the social status of Chinese women in different regions and classes in the past 10 years. In the meantime, the Beijing Women’s Federation also specially conducts a survey on the social status of women in Beijing, the survey content of which includes women’s health condition, educational situation, financial situation, social insurance, political condition, marriage and family situation, life style, legal rights, interests and cognition, gender cognition and attitude and so on. It also launches detailed surveys on such special groups as children, senile women, floating women and women of high-level talents.16

The above content serves just as an overview of the implementation situation of CEDAW in China. In fact, in the past more than 30 years, the safeguard movements of women’s rights in China are far more than the above-mentioned ones. These movements to a great extent improve the status of women and protect the rights and interests of women from such aspects as ideology, law, policy and judiciary.

III. Problems in the Implementation of CEDAW in China

Though China has achieved remarkable effects through the implementation of CEDAW, there is still some room for improvement in the current situation. Whereas the discussion above is made from legislative and judicial aspects, here we will analyze the problematic issues in the process of implementation from different subjects and problems. In the book Implementation of the Convention on the Elimination of All Forms of Discrimination against Women in China, Huang Lie mainly discusses four issues: the uncertain relationship between the international convention and domestic law, laggardness of legislation, problems in mechanism and the lack of initiative of judicial authorities in the application of the convention. Dai Ruijun in the book Analysis on Domestic Application of the Convention on the Elimination of All Forms of Discrimination against Women analyzes problems including the discrepancy between the domestic law and convention, the indifference of judicial authorities towards the convention, the ignorance of discrimination against women in “private territory”, the poor performance of the obligation of reporting to the State and the limited function of human rights institutions of the State. Both of the two scholars analyze problems existing in the domestic application and implementation process from comparatively macro level.

A. Uncompleted implementation of 12 concerned areas in the Platform for Action of 1995

The Platform for Action of the fourth World Conference on Women of the United Nations in 1995 proposed 12 critical concerned areas: the increasingly heavy and persistent burden of poverty of women; the inequality and deficiency of education and training, and unequal access to receive education and training; the inequality and deficiency of health care and related services, and unequal access to receive these services; violence against women; the influence of armed conflicts or conflicts of other types towards women including women living under foreign occupation; the inequality in economic structure and policy, in all forms of producing activity and the inequality of opportunity in obtaining resources; the inequality in sharing power and policy between men and women at all levels; the deficiency of mechanism of improving the status of women at all levels; the disrespect and insufficient promotion and protection of human rights of women; stereotyped views are adopted towards women and they cannot equally utilize and participate in all communication systems especially communication media; the inequality between men and women in the management of natural resources and environmental protection; the persistent discrimination against girls and the infringement on the rights of girls. These areas cover aspects of significance to women. In the past over 20 years, China actively implements the Platform for Action beginning from 12 critical concerned areas and adopts a series of measures to improve the condition of the social status of women and to eliminate all forms of discrimination against women. In accordance with the report of main data in the third phase of the survey on the social status of Chinese women, we can see these positive changes: the health and health care condition of women have been substantially improved. Among women aged 18 to 64, the self-rated health of 64.2 percent is “good”; the reproductive health level of rural women has been significantly increased, and the percentage of women aged under 35 who has antenatal care when gives birth to the last child is 89.4 percent, 87.7 percent of whom being at hospital during delivery; the structure of education has also been improved notably, and the average years of education of women between 18 to 64 is 8.8 years; the condition of economic participation has shown some improvement, and the employment rate of women between 18 to 64 is 71.1 percent; the social security level has been increased with 73 percent of non-agricultural account women enjoying social pension security and 87.6 percent enjoying social medical security, and the respective corresponding percentages of agricultural account women are 31.1 percent and 95 percent; the degree of participation in decision-making and management has been somewhat increased with 11.2 percent of women once involved in the management and decision-making of all levels and 92.9 percent of women focusing on “major affairs at home and abroad” which shows that the consciousness of political participation and initiative are gradually increasing; the concept of sharing the housework between men and women has obtained more acknowledgement and the time gap of housework between men and women has narrowed.17

The above statistics show that the status of Chinese women is gradually increasing but still in unsteady state. The health, education, employment, social security and marital condition of such special groups as girls, rural women, senile women, floating women and women of high-level talent, compared with those of other women, are typical and the room for improvement is comparatively larger. In this part, we will take girls, rural women and senile women as examples to analyze the existing problems.

1. Girls

In recent years, cases where girls are harmed have been frequently reported. According to the Situation Report on Safe Education of Children and Related Abuse Cases in 2013, the number of cases exposed by media reaches up to 125 in 2013 with an average of a case in 2.92 days. The age of victims appears to be younger, among which elementary students aged from 8 to 14 are the majority, occupying 81.15 percent of the total victims. This has caused great influence on the physical and mental health of girls. To put it simple, the infringement suffered by girls can be roughly divided into three types: the first is domestic violence including the abuse towards children from their natural parents, especially parents in patriarchal areas, as well as the sexual abuse from male guardians like stepfather and so on; the second is school violence including the infringement towards girls from boys of the same age as well as the sexual abuse towards girls from male preschool teachers and school guards; the third is community violence which refers to the infringement such as trafficking, sexual harassment, indecency or rape of girls from acquaintances in the community.18 Among the infringement suffered by girls, sexual abuse occupies the overwhelming majority. In early 2012, the Women’s Federation of Guangdong Province together with the Guangdong Provincial Procuratorate once investigated the cases involving sexual abuse of girls between 2008 and 2011, and found out that over the three years, the public prosecution department of procuratorial organs of Guangdong Province altogether accepted 2,267 cases of female victims under 18 years old among which the number of cases involving sexual abuse reaches up to 1,708, occupying 75.34 percent of the total number, and among the infringed girls, young girls under 14 years old top to 49.28 percent. In such underdeveloped areas like Huazhou, 94 percent of the infringed girls are local left-behind children; while in areas with more developed economy like Bao’an District of Shenzhen, 88 percent of the infringed girls are exotic floating population. Besides, the proportion where the offender and the victim are acquaintances reaches up to 65.74 percent, and the place of crime tends to concentrate around the residential place of the victim. The age of the offenders is either beyond 50 years old or below 20 years old, and the literacy degree is relatively low.19 From these statistics, it can be seen that girls, especially the rural left-behind girls,20 are suffering from violence, mainly sexual abuse. These infringements not only severely impair the physical health of girls but are quite negative for the cultivation of optimistic mind.

According to the existing laws, regulations and policies, firstly, China has not yet formed a sound legal system for the protection of the rights of girls. Currently, the only specific law is the Law on the Protection of Minors, and other regulations are dispersed in the Compulsory Education Law and the Program for the Development of Children and so on. However, the Law on the Protection of Minors only provides for such aspects as family protection, school protection, social protection, judicial protection and legal responsibility without any reference to the sexual right issue of girls. In the Criminal Law, the originally related crime was the crime of molesting a child and the crime of visiting a young girl prostitute. In fact, the circumstance of visiting a young girl prostitute has little difference from the crime of rape for the self-consciousness and sex consciousness of young girls are not so strong. Thus, it is unnecessary to distinguish the two crimes in law. What is commendable is that in the Amendment IX to the Criminal Law which was adopted at the 16th Session of the Standing Committee of the 12th National People’s Congress of the People’s Republic of China on August 29, 2015, the crime of visiting a young girl prostitute was deleted and it now is incorporated into the crime of raping a girl with a heavier punishment. Secondly, there is lack of authoritative educational teaching plan for sexual abuse prevention, and the majority of relief can only rely on afterwards relief due to the lack of prevention measures. Surveys show that 80 percent of left-behind girls do not receive safe sex education and legal education, and only 20 percent of them have some preliminary understanding through methods of television and health textbooks.21 Such questions are in need of consideration as adding criminal representative system for minor victims and establishing legal aid systems for minor victims in criminal procedural law. Meanwhile, traditional ideas need changing as children belong to their parents, families and private. These ideas are negative to social and state protection of children. Thus, strengthening the protection obligation of the government is a vital stage for dealing with girls matters.

2. Rural women

Problems faced by rural women are prominent which are mainly reflected in problems of health, mental pressure, education, farmland loss and land profits and so on. Since health is a fundamental human right, it is necessary to call attention to health issues. In 2010, the proportion of rural women under 35 years old who have had antenatal examination when giving birth to the last child reaches up to 89.4 percent which increases by 13.4 percent compared to the number in 2000. This shows that the reproductive health level of rural women has been largely improved. However, the health problem of women also includes other female-attributed diseases such as mastocarcinoma and metrocarcinomabesides the antenatal care,. Since most of the rural women are engaged in agricultural work without purchasing social security like social insurance and medical insurance, they cannot enjoy the protection from social security when encountering diseases. In terms of mental pressure, taking the left-behind rural women as example, 57.91 percent of them are concerned about the education of their children; 31.53 percent worry about family members falling ill; 15.2 percent are afraid of their husband having an affair; 14.2 percent are afraid that they will not be taken care of when falling ill; and 12.94 percent are concerned about difficulties in dealing with relationship with mother-in-law when their husband is not around.22 In addition, the survey of the Women’s Federation of Hunan Province reflects that 78.4 percent of the left-behind women are concerned about the safety of their husband; 77.1 percent worry about the health condition of their husband; and 41.9 percent are either very or a little afraid of the unfaithfulness of their husband.23 The pressure of these mental aspects is much higher than that of other groups. Cases, in one of which a mother named Yang Gailan committed suicide by taking poison and died after killing her four children in August 2016 in Gansu, reveal that the rural women are facing huge mental and psychological pressure which is badly in need of the positive intervention from the State, society and family members.

In education, rural women also face a series of problems. Taking Beijing as an example, the proportion of urban women who participate in training or further study is significantly higher than rural women by 10 percent. At the same time, the proportion of rural women who take “no information and opportunity”, “no money” and “poor cultural basis” as the reasons for not participating in training is also much higher than urban women. Besides, the proportion of rural women in Beijing who participate in “literacy education” is 17.5 percent while that of rural men is 4.26 percent, urban women 6.59 percent.24 However, the education years of the central and western rural women are only 6.8 years which are lower than Beijing, Tianjin, Shanghai and the eastern region by respectively 2.2 years and 0.8 year.25

From the aspect of farmland loss and land profits, farmland loss out of marriage is always a critical issue which troubles the survival and development of rural women in the reform process of the rural land contracting system. It may lead to the disadvantaged position of women in family relationships due to the lack of land under their name and may even increase the risk of domestic violence.26 The ACWF once conducted a sample survey over 1,212 countries across the country, the result of which shows that women occupy 70 percent of the group who have no land and 43.8 percent of them lost their land because of marriage.27 Article 6 of the Law on the Contracting of Rural Land which came into effect in 2003 stipulates that “men and women shall have the equal rights to contract the rural land. The women’s lawful rights to land contract shall be protected. No organizations or individuals shall exploit or infringe upon the right to operate contracted land that women shall enjoy”. Article 30 stipulates that “within the duration of the contract, if a women get married but no land is contracted to her in her new domicile, the party that lets the land shall not withdraw the land originally contracted to her; if a women get divorced or becomes a widow, but she still resides in the original place or although she resides in a new place but it fails to contract land to her, the party that let land to her shall not withdraw the land originally contracted to her, either”. On the legal dimension, women are indeed endowed equally with the right to contract land. In fact, however, village regulation, non-governmental agreement or regulation of the local government tends to be the authoritative basis for dealing with land issues. In March 2006, Ji’ning Municipal Government of Shandong Province drafted the Scheme of House Acquisition Compensation which stipulates that local married women without account cancellation as well as their children cannot be counted in the allocation of houses. This provision is neither reasonable nor lawful. Under such circumstance where the problem is still not settled through administrative reconsideration, a married woman without account cancellation named Tang filed an administrative litigation before the court. In November 2016, the Intermediate Court of Ji’ning made decision in the first instance in which the provision together with the decision of administrative reconsideration made by People’s Government of Shandong Province is to be withdrawn.28 How to guarantee the superior status of law compared with unreasonable village regulation, non-governmental agreement or regulation of the local government becomes a thorny problem. If there is no additional clause of punishment towards the violation of law in related legal terms, it may be difficult to guarantee the strength of implementation.

3. Senile women

The “survey on the social status of Chinese women” has been conducted for three consecutive phases in 1990, 2000 and 2010 with only the third phase taking senile women29 as a typical group to conduct the survey. It may, to some extent, mean that the group of senile women only obtains attention in recent years. This survey reflects that the primary source of life of 54.1 percent of the urban senile women is their retirement pay or pension while the corresponding proportion of men is 79.3 percent; the primary source of life of 59.1 percent of the rural senile women is subsidy from other family members is 59.1 percent while the corresponding proportion of men is 38.8 percent. In terms of revenue, the average annual income of urban and rural senile women occupies respectively 49.6 percent and 51.8 percent of that of men in the same region.30 These statistics clarify that it is more difficult for senile women to live on their own compared with senile men since the average annual income of the former only accounts for half of that of men in the same region. Another interesting statistic is that the average daily time senile women engaged in housework is 154 minutes which is 1.7 times of that of senile men.31 Generally, the level of annual income represents the work level and performance before retirement. Combining the housework time, it is easy for us to infer that the characteristic of engaging in low-end occupation and assuming the majority of housework of women before retirement will continue to the old age. Taking Beijing for an example, the survey reveals that the average working age of senile women is obviously shorter than that of men since the average age of men beginning to work is 19.45 while that of women is 21.52; in the meantime, the average retirement age of men is 59.62 while that of women is 52.87. Besides, about one fifth of women “stay at home doing housework for long period” and never go out to work, and the proportion of men is just 0.6 percent. Such difference in working age as well as traditional gender role leads to the insufficient guarantee in income of women after retirement. Therefore, it has become an urgent issue to pay attention to the living standard and social security of senile women. Since the issuance of the Law on the Protection of the Rights and Interests of the Elderly in 1996 along with the amendment in 2009 and revision in 2012, it has provided guarantee for the elderly from the aspect of family support and fostering, social security, social service, social preferential treatment, livable environment and legal responsibility and so on. However, it catches no particularity of senile women, lacks the social gender consciousness and gives insufficient consideration about some unique problems faced by senile women.

China is now facing a predicament of stepping rapidly into the aging society. Actually, the problem of the aging society, to a great extent, can be said to be the problem of senile women which is mainly reflected by the problem of poor or sick older women. Seen from the elderly of the current generation, it is a common phenomenon for husbands to be older than wives. Since the average life span of women is longer than men, thus many senile women have already led a widow life or life without a spouse; the educational rate of women of the current generation is generally lower than that of men, and some become housewife after marriage living on the income of family members. Reasons from the above two aspects intensify the pinch degree of the material and spiritual life of senile women. From the angle of women in the new era, since they have more choices, the phenomenon of late marriage and late childbirth widely exists. The postponement of childbearing age reduces the fertility rate of population while medical advance causes the life expectancy to be longer. The interaction between the two accelerates the aged tendency of population. Although in October 2015, the Fifth Plenary Session of the 18th CPC Central Committee pointed out the policies of adhering to the basic state policy of family planning, actively taking measures to deal with the aging population and implementing the universal two-child policy, some surveys revealed that the childbearing concept of most residents had changed from the traditional expectation of having more children to the modern concept of having fewer children or even having no children.32 If such cycle continues, the young generation will be unable to take care of the living security of the aged population either from time and energy or from economic foundation. The support responsibility will once again be assumed by the State and society. However, China’s current system of social security apparently cannot meet the requirement of the supporting problem of the aged population especially senile women. Thus, great attention should be attached on this point.

B. Difficulties in the implementation of the Anti-domestic Violence Law

Domestic violence is widespread in every country in the world while domestic violence against women based on gender exists extensively in the society. In the report document of the Third World Conference on Women of the United Nations in 1985 named Nairobi Forward-Looking Strategies, it is made clear that “violence against women is the biggest obstacle in their life”.33 In China, only half of the judicial officers think that domestic violence is not a personal affair and the intervention degree of laws concerning domestic violence is insufficient. They are also not so satisfied with the legislation on domestic violence.34

In fact, China has made great achievements in the legislation against domestic violence. In 1996, Changsha City of Hunan Province adopted the first local policy against domestic violence named Several Regulations on Preventing and Stopping Domestic Violence. In 2000, the Standing Committee of the National People’s Congress of Hunan Province passed China’s first local regulation against domestic violence called Resolution on Preventing and Stopping Domestic Violence. It was the first time for “domestic violence” to be written in legislation and became a legal term.35 The Marriage Law revised in 2001 explicitly forbids domestic violence for the first time at the level of basic law. It also stipulates the relief measures for domestic violence and the administrative punishments against the abusers. The Law on the Protection of Rights and Interests of Women revised in 2005 also clearly forbids the domestic violence against women, providing for the intervention mode of preventing and stopping domestic violence by multi-institutional cooperation. In 2008, the Supreme People’s Court issued the referential guidelines called the Trial Guidelines for Cases Involving Domestic Violence for judges to deal with cases; in the same year, the ACWF together with seven ministries and commissions as well as the Supreme People’s Procuratorate jointly issued the Several Opinions on Preventing and Stopping Domestic Violence.36 The Trial Guidelines gives birth to the protection order which is also the civil protection order. It refers to the mandatory order or decision made by the court upon the application of family members, police, social welfare institutions or procurators to forbidden certain behaviors of the abuser of domestic violence in order to protect certain family from suffering domestic violence. The civil protection order is an effective legal system against domestic violence established by common law countries at the end of the 20th century which has been extensively adopted by current common law countries. On August 6th, 2008, China’s first protection order was issued by the Chong’an District People’s Court of Wuxi City, Jiangsu Province. According to this civil order, the personal safety of the protected person was guaranteed by law. Her husband could not conduct domestic violence against her over the coming three months. Eight years later, the Anti-domestic Violence Law finally came into effect in March 2016 which marked an important breakthrough.

Although there has been specific legal protection, difficulties in the implementation of the Anti-domestic Violence Law are conspicuous. Same as the legislation of the Anti-domestic Violence Law, its implementation is, on the one hand, the requirement of the protection of human rights and the establishment of harmonious society and family; on the other hand, the requirement of perfection of socialist legal system and the realization of socialist core values. In the meantime, it is also the demand of the fulfillment of international obligations and the promotion of the image of responsible great power.37 As for domestic violence, the United Kingdom issues a series of laws, for example, the Domestic Violence and Matrimonial Causes Act of 1976, the Matrimonial Homes Act of 1983, the Family Law of 1996 and the Anti-Harassment Law of 1997 and so on. Among these, Part Four of the Family Law of 1996 clearly stipulates that under the circumstance of domestic violence, the court can make legal orders upon the application of the victims. In the United States, the Congress successively formulated such laws as the Family Violence Prevention and Services Act and the Violence against Women Act which establish important systems like mandatory arrest, mandatory report and civil protection order. On June 24th, 1998, Taiwan, China issued the “Law on Prevention of Domestic Violence” including contents in civil, criminal and administrative fields. Problems existing in cases of domestic violence, for example, difficulty in evidence collection, difficulty in authentication and difficulty in relief, encourage us to think about how to incorporate social gender into the science of evidence in order to contribute to the implementation of the Anti-domestic Violence Law which will make this law no longer a simple decoration.

IV. Conclusion

CEDAW is the only convention to provide dual protection of the human rights of women from substantive and procedural aspects through a single form. The terms of CEDAW almost cover all fields of the human rights of women. The ratification of CEDAW in a sovereign state actually equals to a social contract signed between it and its women citizens. This contract endows women with corresponding rights and in the meantime imposes corresponding obligations on the state and society. Although the implementation level of CEDAW needs to be promoted seen from the current situation in each country, some scholars even think that this convention is not a good one. She deems that before the ratification of this convention, two fundamental questions need to be addressed: first, for the already favorable state measures, is CEDAW a necessary and valuable measure for improvement? Second, regardless of the nature (good or bad) of CEDAW, what kind of influence will the ratification of the convention cause to the life of Americans? The core clause of the convention is the feminist version sealed up in the 70s of the last century, the ratification of which would severely endanger the private ownership, welfare and basic freedom of America. John Fount, the senior partner of Hudson Institute, thinks that the ratification of the convention is nothing else but to take political affairs out of the hands of the elected officials and transform them into “general human rights”, and then the judges can decide based on the “ever-changing terms of international law”. This will destroy the democratic system of the United States.38 However, the convention as well as the Convention Committee has provided an opportunity for the NGOs of each country and the international NGOs to define the topic of women’s rights as an issue in the international law and to pursue these topics on the level of international document.39 In light of the diversity of the cultural traditions and social structures of each country, it is a successful thing to achieve the consensus on CEDAW.40 The strengthening of national responsibility can provide some convenience from the aspect of laws and policies for women. However, it is also an important way to change social customs, social environment and improve the comprehensive ability of women. The gender equality is neither the simple equality of rights nor the equality in concept. Rather, it needs to transfer the equal rights on the legal level into the actual process through the change of social environment and the improvement of ability.

                                            (translated by Xu Xinyan)

* ZHANG Xiaobing (张晓冰),assistant researcher of China Youth and Children Research Center, and Doctor of Laws.

1. See Introduction to The Convention.
2. See The State Council’s Bill of Requesting for Ratification of The Convention on the Elimination of All Forms of Discrimination against Women of the United Nations, The Bulletin of the State Council of the People’s Republic of China, No.15 (1980).
3. JoAnn Adinolfi, The Convention on the Elimination of All Forms of Discrimination against Women and Its Implementation, at 3, at http://www.docin.com/p-179097900.html, last visited on October 8, 2016.
4. Catherine Thinker, “Human Rights for Women: The U.N. Convention on the Elimination of All Forms of Discrimination against Women,” 13 Human Rights Quarterly, No. 2, at 42.
5. See Xiao Qiaoping, “Discrepancy in Coordination—Examination of Law of the People’s Republic of China on the Protection of Rights and Interests of Women from the Perspective of the Convention on the Elimination of All Forms of Discrimination against Women,“ Journal of Social Science of Hunan Normal University, No. 1 (2006), at 72-75.
6. See Zhang Aining, “The Convention on the Elimination of All Forms of Discrimination against Women and the International Protection of Human Rights of Women,” Journal of China Foreign Affairs University, No. 1 (1999), at 71-76.
7. See Jiang Xiuhua, “Analysis on the Health Policies and Movements of Chinese Government in Recent Years—Based on the Implementation of The Convention on the Elimination of All Forms of Discrimination against Women,” Journal of Shandong Women’s University, No.4 (2012), at 20-27. In addition, see Huang Feifei, “Research on Equal Rights of Economic Status of Women: From the Perspective of The Convention on the Elimination of All Forms of Discrimination against Women,” master dissertation of Hunan Normal University, 2011; Lin Beibei, “Research on Equal Rights of Women in Marriage and Family:From the Perspective of The Convention on the Elimination of All Forms of Discrimination against Women,” master dissertation of Hunan Normal University, 2012; Zhao Qian, “Implementation and Challenges of The Convention on the Elimination of All Forms of Discrimination against Women in China,” Journal of Heilongjiang Administrative Cadre Institute of Politics and Law, No.3 (2014); Wang Hui, “Research on the Implementation of The Convention on the Elimination of All Forms of Discrimination against Women,” master dissertation of Beijing Jiaotong University 2014; Sun Xiaohong, “The Convention on the Elimination of All Forms of Discrimination against Women: Charter for Safeguarding the Rights of Women,” Human Rights, No. 2 (2016).
8. See Liu Bohong, “Respect and Safeguard the Rights of Women is Respect and Safeguard Human Rights—In Memory of the 30th Anniversary of The Convention on the Elimination of All Forms of Discrimination against Women of the United Nations,” Human Rights, No. 1 (2010), at 6.
9. See Implementation of the Merged Reports of the Seventh and Eighth Ones for The Convention on the Elimination of All Forms of Discrimination against Women in China.
10. See He Junping, Zheng Xiaochuan and Chen Han, Family Law and Succession Law, Higher Education Press, 2013, at 15-19.
11. See Wu Changzhen, Xia Yinlan, “Legislative Evolution of Marriage in Three Decades after the Reform and Opening-Up in China,” Journal of China Women’s College, No. 1 (2009), at15-20.
12. For details,see supra note 9.
13. Ibid.
14. Ibid.
15. See The State Council Information Office of the People’s Republic of China: “The Development Status of Gender discrimination and Women,” Chinese Women’s Movement, No.10 (2005), at13.
16. See The Beijing Women’s Federation, Research on the Social Status of Women in Beijing (2000-2010),”China Women Publishing House, 2013.
17. See: The research group of the third phase of survey on the social status of women, Report of Main Data of the Third Phase of the Survey on the Social Status of Chinese Women, Collection of Women’s Studies, Vol 6 2011, PP5-15.
18. See: Jiang Yue’e, Perfection of Protective Network of Community Children towards Families, Collection of Women’s Studies, Vol 4 2013, P61.
19. See: Yang Shiqiang, Wang Ying, Investigation Report of the Sexual Abuse Suffered by Girls, cited from the website of Women’s Federation of Guangdong Province, http://www.gdwomen.org.cn, access time: October 26, 2016.
20. Typical cases are cases where some older villagers of Nan Village, Xingye County, Yulin City of Guangxi Autonomy Region, conducted sexual abuse towards girls several times. The procuratorial organ initiated a public prosecution against 10 defendants for rape who were thus convicted and sent to prison by the court and one of the defendants was sentenced to imprisonment for molesting a child. According to the incomplete statistics of the Women’s Federation of Guangxi Autonomy Region, since 2010, there have been 622 cases involving sexual abuse of girls occurred in the whole Autonomy Region. Among the cases, the number of victims under the age of 14 is 413 which occupies 66.4 percent while the number of cases happened in rural areas is 508 which occupies 81.6 percent of the whole.
21. See: Gao Fengmei, Analysis on the Legal Relief of Sexual Abuse of Left-Behind Girls in Rural Areas of China—Taken Ganzhou District of the Example, Modern Business Trade Industry, Vol 24 2010, P. 24.
22. See: Wu Huifang, Ye Jingzhong, Analysis on the Mental Influence of Husband’s Migrant Work on the Left-Behind Rural Women, Journal of Zhejiang University (Humanities and Social Sciences), Vol 3, 2010.
23. See The Women’s Federation Office of Hunan Province, “Investigation Report on the Left-Behind Women of Hunan Rural Areas,” Chinese Women’s Movement, No. 3 (2010), at 3.
24. Ibid., at 130-154.
25. Ibid., at 12.
26. See: Song Yueping, “Tan Lin and Ye Tao, Will Farmland Loss out of Marriage Increase the Risk of Suffering from Domestic Violence by Rural Women?—Investigation on Rural Areas in China,” Collection of Women’s Studies, No.1 (2014). This paper provides a large amount of data to verify that the possession of contracted land which can make economic benefits can significantly reduce the risk of domestic violence from husband suffered by rural women; rather, the status of farmland loss, especially the circumstance where farmland loss results from marriage, will drastically increase the risk of domestic violence from husband suffered by rural married women.
27. See: Wu Yemiao, Zhang Guifang, “The Loss of Rural Women’s Land Rights and Effective Relief,” Chinese Journal of Sociology, No. 9 (2004), at 9.
28. See Pengpai News, at http://m.thepaper.cn/newsDetail_forward_1594674, last visited on November 8, 2016.
29. With respect to the age limit of the elderly, there are two standards taken by all States: the age of 60 and the age of 65. Article 2 of the Law on the Protection of the Rights and Interests of the Elderly stipulates that the elderly refers to citizens at or above the age of 60.
30. Ibid., at 9-10.
31. Ibid., at 10.
32. See Zhang Xiaoling, Ge Xiang, “Investigation Analysis Report on the Childbearing Intention of Residents under the Universal Two-Child Policy,” Journal of Sichuan Vocational and Technical College, No.3 (2016). Also Qiao Xiaochun, “Choice of Future Childbearing Policy—From the Implementation Effect of the Single Two-Child Policy,” Chinese Journal of Population Science, No.2 (2015); Jiang Zhike, Feng Xiaotian, “The Childbearing Intention of Second Child of Urban ‘Separate One-Child Couples’—Based on Diagnoses of 558 Young Persons from Five Types of Industries in Nanjing and Baoding,” Journal of Population Studies, No.3 (2015); Jing Ying’ai, “Evaluation and Analysis on the Childbearing Policy of Two-Child—Based on the Comparison of the Childbearing Intention between Urban and Rural Women of Childbearing Age,” Journal of Qingdao University of Science and Technology (Social Science), No. 1(2016); Liu Jingmin, Ding Weiyong and Huitao Jia, “Research on the Influence of the Universal Two-Child Policy on Fertility Rate—Taken Tangshan as an Example,,” Contemporary Economics, No. 13 (2016).
33. K. D. Askin,D. M. Koenig, Women and International Human Rights Law, Vol. 1, translated by Huang Lie, Zhu Xiaoqing, Sanlian Bookstore, 2007, at 257.
34. Xia Yinlan, “Investigation Analysis on the Result of Legal Intervention Situation concerning Domestic Violence,” Law and Life, No. 3 (2003), at 9.
35. See Xia Yinlan, “The Legislative Process against Domestic Violence and the Analysis on Its Development in China,” New Perspective, No. 8 (2010), at 6.
36. Ibid., at 6-7.
37. See Xia Yinlan, “On the Necessity and Feasibility of the Formulation of Domestic Violence Prevention Law,” Collection of Women’s Studies, No. 3 (2012), at 30-31.
38. See Christina Hoff Sommers, at 40.
39. See Marsha A. Freeman, “The Human Rights of Women under the CEDAW Convention: Complexities and Opportunities of Compliance”, Proceedings of the Annual Meeting (American Society of International Law), Vol. 91, Implementation, Compliance and Effectiveness (April 9-12, 1997), at 378-383.
40. Statement of Secretary-General Kurt Waldheim at the Opening of the World Conference of the U. N. Decade for Women, 14 July 1980, Copenhagen, Denmark, unofficial text contained in Press Release SG/SM\\409 available from the U. N. Information Service, U. N. Office at Geneva.