Forward Ⅰ

Women's human rights is an important field of human rights research as well as a special area of human rights protection. From the perspectives of theoretical research on human rights and the practice of human rights protection, women's human rights have a dual nature. On the one hand, almost all the rights provided for in international and domestic human rights laws are women-related; namely, both men and women are equally entitled to almost all human rights, including civil and political rights, economic, social and cultural rights, as well as the right to existence, right to development, right to peace, environmental rights, and the right to be free from fear. On the other hand, both international and domestic human rights' laws give some kind of special protection to women's human rights, with a view to enabling women to truly and effectively exercise various kinds of human rights on an equal basis with men. At the same time, women enjoy some special human rights based on their gender and special physiology. Just as“human rights are originally effective weapons for the disadvantaged to protect their own interests and to challenge the advantaged, ”rather than“a protective talisman for the advantaged”, special protection of women's human rights by international and domestic human rights laws precisely shows that women have been in a disadvantaged position concerning their human rights in the world dominated by men. Hao Tiechuan used Fei Xiaotong's theory of “pattern of difference sequence”to explain the progressiveness of the realisation of rights: “Legislative facts since the modern times have shown that: first, men of property acquired political rights in the 18thand 19th centuries; then, all men acquired political rights in the beginning of the 20th century; and finally, women acquired the same political rights as those enjoyed by men in the middle of the 20th century. ”It has taken the western countries between 100 and 200 years to guarantee equal political rights for men and women in constitution and law. Therefore, the de jure and de facto equality between men and women in the enjoyment of economic, social, and cultural rights is by no means something that can be achieved over night through a revolution or a campaign. It is an undertaking that involves such factors as culture, ideas, tradition, institutions, law and the level of economic and social development, and can be realized only through long-term efforts.

Since the“reform and opening up”in 1978, the Institute of Law of the Chinese Academy of Social Sciences（the Institute of Law CASS）has been engaged in the research on women's rights（women's human rights）. It played an important role in the revision or drafting of many laws, including the 1982 Constitution, the Marriage Law, the Law on the Protection of Women's Rights and Interests, and the Inheritance Law. In 1990, the Institute of Law CASS began to carry out comprehensive and systematic research on human rights theories and policies. With the support from the Ford Foundation Beijing Office, many research fellows of the Institute, including professors Chen Mingxia, Xin Chunying, Huang Lie and Zhu Xiaoqing, have also carried out many research projects on women and human rights, making important achievements in this field. The establishment of the Centre for Human Rights Studies CASS in 1996 further strengthened and promoted the studies on theoretical and practical aspects of the protection of women's human rights. In 2002, the Centre for Gender and Law Studies was established under the Institute of Law CASS. The main tasks of the Centre are to analyse from gender perspective legislative, judicial and law enforcement practices, legal education and legal research, to promote the construction of a legal framework conducive to the mutual development of men and women, and to promote the mainstreaming of gender perspective in legal research and education.

The Project“Strengthening the Legal Protection of Women's Social Rights in China”, led by Ms. Li Xixia, is an important part of the long-term research on human rights and the rule of law, as well as a continuation and deepening of the research on the legal system of protection of women's human rights carried out by the Institute of Law CASS. The successful implementation of the Project is of great theoretical value and practical significance to the deepening of theoretical research on the legal protection of women's social rights, the comparison of and drawing on the useful experiences on the protection of women's social rights by international, regional and foreign human rights laws, and the improvement of the legal mechanisms for the safeguarding of women's social rights in China. This publication, entitled Protection of Women's Social Rights: International and Domestic Perspectives（Chinese and English edition）is one of the important results under the Project.

The publication includes the main research findings under the Project“Strengthening the Legal Protection of Women's Social Rights in China”, implemented by the Institute of Law CASS from December 2009 to May 2013. The articles contained in this book carry out wide-view, multi-aspects, and in-depth discussions around such topics as“protection of women's social rights under the international and domestic laws”，“legislative, administrative and judicial protection of women's social rights, social security rights and health rights”，“legal protection of women's labour rights”and“international monitoring mechanisms for the protection and implementation of women's social rights”. They touch upon such issues as anti-domestic violence legislation, women's right to employment, labour protection of women, equal pay for work of equal value for men and women, the same retirement age for men and women, discrimination based on pregnancy and childbirth, maternity protection system, women's right to health, women's housework, international protection of the rights of female migrant workers, the right of girls to education, protection of women's rights under international human rights conventions, legal protection of women's labour rights, women's labour rights from the feminist perspective, protection of women's right to work, and protection of women's social rights in the Netherlands, UK, Switzerland, Germany, France and Australia.

This book focuses on the legal protection and realisation, both at the international and domestic levels, of the social rights of women as a disadvantaged group of society. Just as Mao Zedong once said, “Women can hold up half the sky”. The history of social development shows that, women have always played an important role in prosperity and progress of the human society. Because of the inherent differences in physical makeup and physiology between men and women, women have to perform the social function of childbearing. In addition to cultural prejudice and traditional ideas, childbearing has posed more difficulties and greater challenges for women in the protection and realisation of their social rights. Therefore, special protection have been given by states around the world to women's rights and interests, especially women's economic, social and cultural rights.

At the international level, the UN human rights law instruments require states to provide equal protection to the two categories of human rights, namely civil and political rights and economic, social and cultural rights. At the same time, they for-see special protection to women's rights（including economic, social and cultural rights）in order to redress deep-rooted gender imbalance through the reform of cultural and legal institutions while at the same time providing women with better and more effective legal protection. These international human rights legal instruments, especially the International Covenant on Economic, Social and Cultural Rights（ICESCR）and the Convention on the Elimination of All Forms of Discrimination against Women（CEDAW）, are now playing an important role in the protection and effective realisation of women's rights. The First World Conference on Women, held in Mexico City, also adopted World Plan for Action and declared the years 1976-1985 as the UN Decade for Women: Equality, Development and Peace, which created a platform and basis for global organisations to follow closely women's issues. The Fourth World Conference on Women, held in Beijing in 1995, also promoted the liaison and cooperation between domestic, regional and international women's organizations.

At the domestic level, many countries have emphasized special protection of women's rights and established corresponding legal systems to realise women's rights. Different countries may take different approaches to domestic implementation of international human rights laws. In some countries international human rights laws are directly applicable by domestic administrative and judicial organs while in others they can be implemented only after being transformed into domestic law through domestic legislation. Although the ICESCR was ratified by the Chinese legislative organ in 2001, it is not directly applicable in China, but must first be transformed into Chinese domestic law by the National People's Congress or its Standing Committee. This is determined by the constitutional and legal systems in China and does not mean that the Chinese government attaches no importance to the implementation of the ICESCR or to the protection and the realisation of women's economic, social and cultural rights. On the contrary, the Chinese government has always attached great importance to and been strengthening the protection and realisation of women's economic, social and cultural rights. The Eleventh Five-Year Plan for National Economic and Social Development, adopted by the National People's Congress in March 2007, clearly provided for the policy of equality of men and women: “The state carries out the basic policy of equality of men and women, implements development plan for women, safeguards women's rights in the fields of education, employment, social security, marriage and property, and participation in social affairs, and strengthens health care, poverty relief, labour protection, and legal aid for women. ”In March 2012, the National People's Congress adopted the Twelfth Five-Year Plan for National Economic and Social Development, which, among others, provides that: “The state adheres to the principle of equality of men and women, safeguards women's lawful rights and interests, strengthens the protection of the minors, and develops various undertakings for women and children”. These provisions embody fully the principle of equality of men and women enshrined in the Chinese Constitution and the Law on the Protection of Women's Rights and Interests, as well as the solemn commitment made by the Chinese government in Beijing+10 Declaration.

As scheduled, on June 27, 2003, the Chinese government submitted its initial report on the implementation of the ICESCR to the Committee on Economic, Social and Cultural Rights. The report, which is nearly 200 pages in length and contains about 30 charts, gives a comprehensive and systematic introduction to the situation of China's implementation of the Covenant. On May 13 of the same year, the Committee adopted the Concluding Observations on China's report. They commend the measures taken by China for the implementation of the Covenant, including the promulgation of Rules on Supervision of Labour Security, amendment of the Regulations on Collective Contracts and the Regulations on Minimum Wages, adoption of China Rural Communities Poverty Relief Program（2001-2010）, and the implementation of the Circular on Strengthening the Prevention and Control of HIV/AIDS. Meanwhile, the Committee“notes with deep concern the de facto discrimination against internal migrants in the fields of employment, social security, health services, housing and education, putting forward suggestions and recommendations on the improvement of the situation. The Committee requests the Chinese government to include in its next periodic report annual comparative data on the percentage of gross domestic product allotted for education, health and housing programs and calls upon the Chinese government to undertake effective measures to ensure the equal right of men and women to enjoy economic, social and cultural rights as provided for in Article 3 of the Covenant, including eliminating wage gaps between men and women, and providing equal opportunities for both men and women. ”In view of the above fact, the main purpose of the project Strengthening the Legal Protection of Women's Social Rights in China is to promote continuous improvement of the domestic legal system for the implementation of ICESCR in China through comparative analysis and studies that connect international human rights law with domestic human rights law and combine theory with practice.

The Chinese government has always attached great importance to the development of women and the equality of men and women. Since the implementation of the policy of“reform and opening up”and in the process of furthering women's cause, China has developed a multi-layered system for the protection of women's rights consisting of legislation, system building, policy orientation, and institutional construction. As far as legislation is concerned, China has already developed a basic system of laws on the protection of women's rights and interests. It includes the Constitution, the Law on the Protection of Women's Rights and Interests, the Criminal Law, the Civil Law, litigation laws, the Law on Administrative Punishment, and Social Insurance Law（i. e. law on health insurance, pension insurance, maternity insurance, insurance against injuries at work, and unemployment insurance）. The amendment to the Law on the Protection of Women's Rights and Interests, adopted in August 2005, is of special importance. It lays down the non-discrimination principle, principle of equality of men and women and the prevention and prohibition of domestic violence. The implementation of these laws has speeded up the process of effective implementation of the principle of gender equality and played a positive role in promoting the protection and realisation of women's social rights.

Respecting and safeguarding human rights is one of the basic principles of the Chinese Constitution as well as one of the basic state policies pursued by Chinese government over a long period of time. In April 2009, China adopted the first National Human Rights Action Plan for the two-year period form 2009 to 2010. It contained the objectives and concrete measures for the protection and safeguarding of a wide range of economic, social and cultural rights, including the right to work, right to basic standard of living, right to social security, right to health, right to education, and cultural rights. In July 2011, Wang Chen, Director of the State Council Information Office, announced that China had achieved all the objectives of the National Human Rights Action Plan（2009-2010）and made major progress in the development of the human rights cause. These achievements included: women's equal status and lawful rights and interests had been fully protected; the level of women's participation in the administration of state and social affairs had been further raised; the state had adopted and revised a series of laws and regulations relating to the protection of the rights and interests of female employees, including the Social Insurance Law and the Regulations on the Labour Protection of Female Employees; the National People's Congress had carried out inspection on the enforcement of the Law on the Protection of Women's Rights and Interests; and trade unions at various levels had actively provided legal aid to female employees. In June 2012, China promulgated the National Human Rights Action Plan（2012-2015）, which states that the government will make further efforts in eliminating gender discrimination in employment, implementing the system of equal pay for equal work irrespective of sex, and strengthening the labour protection of female employees. China will also revise in appropriate time the standard of special labour protection for female employees, and promote the conclusion and implementation of special collective contracts on the protection of women's rights and interests in enterprises that have established trade unions.

With the overall political, economic, social and cultural development and the full implementation of the fundamental strategy of ruling the country by law, we are confident that China will make even greater achievements in safeguarding women's human rights, especially their economic, social and cultural rights, by the year 2020, when it achieves the goal of building an all-around well-off society.

We also believe that the publication of this book will help to deepen people's understanding of the legislative, administrative and judicial systems of protection of women's social rights in different countries and contribute to the international exchange of legislative, law-enforcement and judicial experiences in dealing with various problems related to the legal protection of women's social rights. It should enhance the understanding of women as one of the disadvantaged social groups and the importance of legal protection of their social rights, and promote the research on theoretical and practical issues relating to the legal protection of women's social rights, as well as the improvement of the relevant systems.

The contributors of this publication are scholars and experts from various universities, research institutions and government organs, both in China and abroad. The Chinese contributors include: professors Liu Hainian, Liu Cuixiao, Zhu Xiaoqing, Xue Ninglan, Zhao Jianwen, Li Xixia, Ye Jingyi, Li Jianfei, Wang Hufeng, Liu Minghui, Guo Huimin, Rui Lixin, Chen Peiyong, Xue Xiaojian, Wu Yue, Li Yunhua, Chang Pengao, Xie Zengyi, Yu Shaoxiang, Qian Yewei, Liu Yandong, Yang Hui, He Ling, Dong Wenyong, Dong Bin, Dai Ruijun, Shi Juan, Li Bosi, Wei Qian, Pan Wei, Yan Chan, Gao Yongxian, Song Daping. They are respectively from the Institute of Law CASS, the Institute of International Law CASS, Peking University, Renmin University of China, China University of Political Science and Law, China Women's University, Wuhan University, Northwest Polytechnical University, Southwestern University of Finance and Economics, the Ministry of Human Resources and Social Security, the Legislative Affairs Office of the State Council, All-China Women's Federation, National Health Development Research Centre of the Ministry of Health, ect. The foreign contributors include: Professor Thomas Fleiner, Former Director of the Institute of Federalism University of Fribourg, Switzerland; Professor Lidija R. Basta Fleiner of the Institute of Federalism University of Fribourg, Switzerland, former First-Vice President of the Advisory Committee on the Framework Convention for the Protection of National Minorities; Professor Richard Giesen from University of Munich, Germany;Associate Professor Albertine Gesina Veldman and Lecturer Marjolein van den Brink from Utrecht University, Netherlands; Ms. Katie Lee, Former Director of the Great Britain China Centre; Ms. Christine Forster, Senior Lecturer at Law Faculty, University of NSW Sydney, Australia; Professor Delia Davin from Leeds University UK; and Rainbow Murray, Ph. D Candidate at Murray Queen Mary University of London. On the occasion of publication of the book Protection of Women's Social Rights: International and Domestic Perspectives（Chinese and English edition）, it is on behalf of the Institute of Law CASS that I hereby express heartfelt thanks to all the colleagues for their intellectual contributions and efforts.

Finally, on behalf of the Institute of Law CASS, I would like to extend our sincere gratitude to the Embassy of the Kingdom of the Netherlands in China for its support and financing of the above mentioned project, especially for its great support and assistance in the exchange and cooperation between Chinese and Dutch scholars in the fields of the rule of law and human rights over the past years and for putting this project in place. Meanwhile, we would also like to thank the Southwestern University of Finance and Economics, Sichuan Provincial Women's Federation, Great Britain-China Centre, and the Netherlands Institute of Human Rights of Utrecht University for their assistance and cooperation of this project.

Li Lin

May, 2013