Inkorporering av FN:s kvinnokonvention -ett sätt att stärka kvinnors rättigheter?

Detta är en Uppsats för yrkesexamina på avancerad nivå från Lunds universitet/Juridiska institutionen

Sammanfattning: SUMMARY This study aims to examine whether the UN Convention on the Elimination of Discrimination Against Women (CEDAW) should be incorporated into Swedish law, in order to enhance equality between women and men. This study discusses the anti-discrimination standard of CEDAW and the status of the convention in Sweden. Furthermore, this study presents and analyses the pros and cons of the incorporation method, mainly by looking at the considerations made in conjunction with the incorporation of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), in the Swedish debate of incorporation of the UN Convention on the Rights of the Child (CRC), as well as in the Norwegian debate, where the CEDAW was incorporated into Norwegian law in 2009. This paper explains that CEDAW is infrequently applied in the promotion of gender equality in Sweden, and notes that there is a lack of knowledge of CEDAW on national, regional and local levels. Unlike other anti-discrimination and equality regimes under international law, which address discrimination on the basis of sex (female and male), and that hold a gender-neutral approach, CEDAW is premised on the assumption that a gender-neutral approach does not sufficiently recognize the structural and intersectional discrimination of women, and therefore a gender-specific guarantee is needed. In the case of incorporation of CEDAW into Swedish law, this thesis identifies some areas where CEDAW can have a potential substantial effect, where CEDAW can be used in policy-making of gender-specific reforms and in the protection of intersectional discrimination. This study suggests that by giving CEDAW legal status, it could potentially become better known, the right of complaints in the Optional Protocol to CEDAW could be invoked in more cases, and the lack of conformity with existing legislation could be discovered. Irrespective of the substantial, direct impact that the CEDAW may have in case of incorporation into national law, this study has identified potential normative effects in support of incorporation. If CEDAW was applied as law in Sweden, CEDAW could possibly form a common starting point for several other perspectives and express a minimum standard within the field of anti-discrimination and equality protection. The comparative part of this study notes that there was initially a strong resistance to incorporating ECHR into national law, essentially based on the same arguments which were made against the CRC and that could be brought against the CEDAW. However, the comparison with ECHR shows that ECHR is seen as an integrated and natural part of national law, primarily as a result of its status as Swedish law. In the comparative study of the CRC this study notes, inter alia, that the provisions of CRC differ from CEDAW, mainly due to some provisions that have more of a character of goal regulation with gradual compliance requirements. This thesis suggests that in Norway, where CEDAW was incorporated into national law, as to take precedence when coming into conflict with Norwegian law, that the CEDAW has slowly become better known and enjoys greater political and legal legitimacy, due to its legal status.

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