Public Policies and Human Rights: The Effects of the UN Convention on the Elimination of All Forms of Discrimination against Women in Italy

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Comitato tecnico-scientifico del Centro interdipartimentaledi ricerca e servizi sui diritti della persona e dei popoliAntonio PapiscaMarco MasciaAchille AgnatiPierpaolo FaggiPaolo BencioliniNino Olivetti RasonBruno PaccagnellaEnzo PaceAldo RossiRaffaella Semeraro

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Pace diritti umani/Peace human rightsRivista quadrimestrale del Centro interdipartimentale di ricerca e servizi sui diritti della persona e dei popolidell’Università di Padova

con il contributo diRegione del Veneto

© 2010 by Marsilio Editori® s.p.a. in Venezia Prima edizione: luglio 2010ISBN 978-88-317-9982www.marsilioeditori.it

Pace diritti umani/Peace human rightsRivista quadrimestraleNuova serie, anno VII, numero 1, gennaio-aprile 2010

Sommario

7 È superato lo scisma transatlantico?Barack Obama e Herman Van Rompuy per una politica internazionale educataAntonio Papisca

39 Public Policies and Human Rights: The Effects of the UN Convention on the Elimination of All Forms of Discrimination against Women in ItalyPaola Degani

67 Il diritto all’inclusione nel Trattato di LisbonaMarco Ferrero

75 Tra Caritas in Veritate e principio di compossibilità responsabile un’equazione perfetta?Achille Agnati

91 L’educazione ai diritti umani al cuore del diritto fondamentale della persona all’educazione (NdR)

95 Some Reflexions on Key Subjects of Human Rights Education and Training Integrated Approach Antonio Papisca

105 The Right to Human Rights Education and Training: The Responsibilities of the Public and Private SectorsMarco Mascia

115 Il Consiglio d’Europa definisce e aggiorna contenuti e metodi dell’educazione civica: sussidio utile per il consolidamento di «Cittadinanza e Costituzione» nella scuola italiana (NdR)

DOCUMENTAZIONE

121 Proposta di Dichiarazione delle Nazioni Unite sull’educazione e la formazione ai diritti umani

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129 Raccomandazione CM/Rec(2010)7 del Comitato dei Ministri agli stati membri sulla Carta del Consiglio d’Europa sull’educazione per la cittadinanza democratica e l’educazione ai diritti umani

137 Abstracts

Public Policies and Human Rights: The Effects of the UN Convention on the Elimination of All Forms of Discrimination against Women in Italy

Paola Degani*

1. Historical Background: Women’s Discrimination inItaly: Work, the Family, and the Political Landscape

1.1. The Constitutional Foundation of Non-discriminationPolicies

A formal recognition of gender equality in Italy dates back tothe unification period, in the mid 1800s. Since then legislativereforms have moved towards a gradual affirmation of a culturaland social emancipation process striving to eradicatediscrimination and to promote equality between men andwomen. If one were to trace the most significant historical phases ofwomen’s emancipation process, two important moments standout: the fall of the Fascist regime, in 1943, and the advent ofthe Republic, in 1946. To grasp the condition of women inItaly, an important moment takes place just after the end ofWorld War II. It was a crucial phase in the development of aprotection system and in policy-making aimed at promotingwomen’s rights in the decades that followed. Italian women first exercised the right to vote, and to beelected in a representative arena, thus to participate in thenational political community, in 1946, in the election of theConstituent Assembly. At the time, gaining political rightsunderscored an implicit recognition of women’s vital role, notonly in the Liberation and Resistance corps, but also inindustrial production – where they replaced male workers whowere engaged in Fascist military campaigns. To trace the institutional and legal context of gender equalityin the Italian Republic, and to understand its salient features,attention must go to the Fascist political scheme. In its pursuitof a national ideal of power, the family and the effort to

* Professor of Human Rights andWomen Condition at the Faculty ofPolitical Science and Researcher atthe Human Rights Centre of theUniversity of Padua.

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ensure a rise in birth rates became central. Womenconsequently were the recipients of a complex system ofmeasures aimed, at the symbolic and material level, atstrengthening women’s domestic role. At the same time, theirparticipation in activities of production had to be ensuredthrough jobs and the type of work regulated by laws that keptwomen subjected to the control of men, excluding them fromthe public sphere.The Fascist period was characterised by regulatory policies inwhich women’s work and child labour shared a commonapproach in terms of legal framework, defined by a protectionsystem that assumed the paradigm of «minor» labour forces.On the one hand, while modifying its goals, it consolidated thetraditional protective approach of the past century; and on theother, it extended the sphere of application of the law to allworkplaces, with a few significant exceptions like familyactivities and paid work from the home. The solutions adoptedby the Fascist regime led mostly to the marginalisation andunderpayment of women’s work as it defined specialmandatory protection policies whose effects were notdiminished by a partial reabsorption of labour – a response tothe needs of war production. With Fascism, the original significance of the principlesunderlying protective public policies was altered and exploited:the principle was manipulated for an all-enconpassing designaimed at dismantling civil society and, in particular, atdiscouraging women from taking jobs outside the home,expelling them from those they held. During the Fascistperiod, legislation dealing with women increased anddeveloped considerably. It is widely and firm belief that, sinceindustrialised society began, no political movement has shownsuch an adversion to women’s emancipation as Fascism, andthere is no doubt that, in that historical period, the ideologyand structures design to bring about a complete re-definitionof women’s social and political subordination.The Constituent Assembly, elected on 2 June 1946, approvedthe Constitution. It was enforced on 1 January 1948. From thenon women gradually acquired autonomy, asserting full citizen -ship which, over the years, required a series of significant amend -ments to the existing legislation, reformulating policies accordingto new patterns of argumentation, that changed over the years.

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The emancipation process of women has followed theprinciples enshrined in the Italian Constitution which containsnotable consideration to women’s issues. In fact, theConstitution embodies seven specific rules that explicitly referto women’s rights: Article 3, para. 1, affirms the principle ofequality1; Article 29, para. 2, affirms the principle of equalityin family relations2; Article 31, para. 1, is on the Republic’srole in protecting maternity3; Article 37, para. 1, on workingwomen4; Article 48, para. 1, on political rights5; Article 51,para. 1, on the access to public offices and positions6; Article117, para. 7, on regional legislation to promote equalopportun ities for men and women7; Article 30, para. 1,establishes that both parents have the duty and right tosupport, instruct, and educate their children, including thoseborn out of wedlock8. Although the debate surrounding the drafting of theConstitution lacked a truly critical approach to the effects ofexisting protective legislation and its historical links withdiscrimination against women, there can be no doubt thechange in perspective in those writing the Constitution whenit came to dealing with female labour; at the centre of theConstitution is the principle of the equal rights not that ofdiscriminatory protection. The tension between the goal ofequality with male labour and the need to take account of thefemale condition’s particular features had a bearing on thedrafting of Article 37, the terms of wich reflected both theuniversal principles asserted earlier in Article 3 and thecompromise on the relationship between women, the familyand work reached by the conservative catholic forces and thenon-confessional and left-wing parties. Italy’s constitutional principles determine the legal frameworkand the axiology within which legislators must developordinary legislation. With the enforcement of theConstitution, any previous rules, though they may be inconflict with the principles of the Constitution, remaineffective until an amendment is passed by Parliament, or theConstitutional Court is called on to decide, upon the appeal ofa judge, whether there are grounds for unconstitutionality orillegitimacy of a particular law, and decide to cancel the latterfrom the system. When considering the history of women’s rights in Italy, it is

1 Article 3 (para. 1): «All citizenshave equal social dignity and areequal before the law, withoutdistinction of sex, race, language,religion, political opinion, personaland social conditions».2 Article 29 (para. 2): «The Republicrecognises the rights of the familyas a natural society founded onmarriage.Marriage is based on the moral andlegal equality of the spouses withinthe limits laid down by law toguarantee the unity of the family».3 Article 31 (para. 1): «The Republicassists the formation of the familyand the fulfilment of its duties, withparticular consideration for largefamilies, through economicmeasures and other benefits».4 Article 37 (para. 1): «Workingwomen are entitled to equal rightsand, for comparable jobs, equal payas men. Working conditions mustallow women to fulfil their essentialrole in the family and ensureappropriate protection for themother and child».5 Article 48 (para. 1): «Any citizen,male or female, who has attainedmajority, is entitled to vote».6 Article 51 (para. 1): «Any citizen ofeither sex is eligible for publicoffices and elected positions onequal terms, according to theconditions established by law. Tothis end, the Republic shall adoptspecific measures to promote equalopportunities between women andmen».7 Article 117 (para. 7): «Regionallaws shall remove any hindrances tothe full equality of men and womenin social, cultural and economic lifeand promote equal access toelected offices for men andwomen».8 Article 30 (para. 1): «It is the dutyand right of parents to support,raise and educate their children,even if born out of wedlock».

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important not to omit the case-law of the ConstitutionalCourt. Its role was fundamental in assessing several laws, manyof which were introduced in the years of Fascism, and that mayhave been incompatible with the principle of sexual non-discrimination. In fact, such laws have been a real obstaclewhen striving to affirm complete equality between men andwomen. To cope with the Court’s decisions, Italian legislatorsneeded to adopt new measures on issues of fundamentalimportance. Some important Court judgments involve: theexclusion of women from a career in a public office (1960), thebanning of propaganda on methods of birth control (1971),the recognition that a pregnancy could be interrupted in caseof damage or serious risk to the mother (1975), Italiancitizenship for a child born to an Italian mother, and even aseries of major interventions on legal equality between spouseswhich canceled some provisions of the Penal Codedifferentiating offences and penalties in case of maritalunfaithfulness, whereby an unfaithful wife was punished moreseverely than the husband.

1.2. The 50s and 60s and Issues on Women’s Work

The tension between achieving the same rights and equal pay forworking women as their male counterpart, and the need to gainrecognition for the specificity of women’s condition led to thedrafting of Article 379 of the Constitution. Its content reflectedboth the previously established universal principles contained inArticle 310 and a compromise between the conservative andCatholic forces on one side, and the secular and left wingedparties on the other, on issues that ranged from women, thefamily, and work. The specific law on the «essential» role ofwomen in the family, and especially, the need to assure adequateprotection for the mother and child as stated in Article 37, wereprofoundly affected not only by the differences embodied in theConstituent Assembly, but also by an ambivalence within thepolitical culture of the left wing parties on issues like family andthe social role of working women. In the years that followed the war, public intervention andeven the implementation of policies on women’s workhighlighted the ambiguities embodied in the constitutionaldisposition.

9 Article 37: «Working women areentitled to equal rights and, forcomparable jobs, equal pay as men.Working conditions must allowwomen to fulfil their essential rolein the family and ensure appropriateprotection for the mother and child.The law establishes the minimumage for paid labour. The Republic protects the work ofminors by means of specialprovisions and guarantees them theright to equal pay for equal work».10 Article 3: «All citizens have equalsocial dignity and are equal beforethe law, without distinction of sex,race, language, religion, politicalopinion, personal and socialconditions. It is the duty of theRepublic to remove those obstaclesof an economic or social naturewhich constrain the freedom andequality of citizens, therebyimpeding the full development ofthe human person and the effectiveparticipation of all workers in thepolitical, economic and socialorganisation of the country».

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In the period that spanned from just after the war until the60s, both the collective negotiations, as well as the effectiveregulatory policies shifted, on the one hand towards theaffirmation of the constitutional principle of equality, and onthe other, towards an improvement in protective laws.Despite the introduction of some new measures to extend thescope of protection coverage to individuals and to improve thecontent of laws, especially for workers who had always beenexcluded and not safeguarded (work from the home, domesticwork and agricultural labour), the conditions and perspectiveswhich inspired such policies remained substantially the same.A discordant element that clashed with this trend was the lawwhich prohibited the clauses of «Unmarried status» and of«dismissal because of marriage», which were not only a form ofrepression of some of the most discriminatory and diffusepractices, but also directly influenced the structural conditionsof fragility of women in the labour market. The reformation of the law on working mothers (1950) andsubsequent amendments (1971) helped to extend the sphere oflabour rights, to limit the power of employers, and tosignificantly enhance the legal protection of subordinatelabour, with fair remuneration being voiced by trade unions astheir main goal throughout the 50s11. The 1960 collectiveagreement on fair pay in industrial work was followed in 1963by new measures that extended similar rules to other economicsectors, introducing a contract framework system that was nolonger based on a formulation that classified men and womendistinctly but rather one that set wage parameters according tocriteria of professional qualification. Once the agreement on fair pay had been implemented, Italy,differently from other countries, did not follow through withpublic policies aimed at fighting direct and indirectdiscrimination, nor did it promote work for women withspecially designed schemes to remove any factor of stiffness.Although the 1960 collective agreement eliminated themacroscopic aspects of the economic discrimination, thiscommitment on wage equality did nothing to remove, or evenquestion, the structural conditions linked to the ways in whichthe women enter the labour market: it is that which explainsthe systematic employment of women in jobs below their realqualifications, this apart from legal sanctions and the so-called

11 M.V. Ballestrero, Dalla tutela allaparità. La legislazione italiana sullavoro delle donne, Bologna, IlMulino, 1979; T. Treu, Lavorofemminile e uguaglianza, Bari, DeDonato, 1977; B. Beccalli, Lepolitiche del lavoro femminile inItalia: donne, sindacati e stato tra il1974 e il 1984, in «Stato e Mercato»,no. 15, 1985.


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single ranking system which has aimed explicitly at combatingdifferences between the various types of work. The reappearance of situation where the female workforce wassegregated showed that the adoption of across-theboardmeasures did not result in an immediate improvement of theweakest groups working conditions, but paradoxically, couldmake them worse, increasing imbalances and employmenttypes without much or any job security. In the 50s, thediscrepancy between demand and supply in the labour marketwas such that legislation was completely evaded and hiringpolicy was left completely at the discretion of the employers: inthe 60s, the role played by family and community rule systemsin directing female workers towards, and placing them ininformal economy, became even more evident.

1.3. The 70s, the Role of Feminism and the InstitutionalResponse to Women’s Political Demand

The 70s, in Italy, represented another pivotal moment inhistory both in terms of the affirmation of women’s rights andas the birth and rooting of a new feminist experience. Womennot only gained greater emancipation but, more in general,awareness of their social value at work expanded. There waseven recognition of the importance of unpaid domestic workin what the marxist feminism called the production andreproduction process of the labour force.Compared to other previously mentioned complex issues, inthe early 70s in Italy, the rise of a new wave of feminismmarked a difference in the way women were perceived. Thefamily as an institution and especially women’s work within it,became pivotal. In particular, an effort was made to collocatethe production and reproduction process of the labour forcewithin the capitalist production system and in the socialdivision of labour. In addition the focus of women’s role whichconferred greater consideration onto them, recognising them asprime actors in the capitalist system of production, led to aradically different theoretical framework brand new feministmovement12.Women thus began to criticise general policies. They thendeveloped and spread theoretical views which, by means ofcollective action, along with the phenomenon of a status of

12 To build a new internationaldimension of this feministmovement see: M. Dalla Costa,Domestic Labour and the FeministMovement in Italy since the 1970s,in «International Sociology», vol. 3,1988, pp. 23-34.

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women working outside the home, reconsidered women’scitizenship in its many implications and from new perspectives.The process of lifting gender discrimination led to questioningthe general political strategies of left wing parties andorganisations, especially classical theoretical assumptions on thealleged emancipation of women in paid work. In particular, thehistorically discriminatory nature of work for the labour marketwas interpreted as a consequence of the economicsubordination of women, as workers whose job was unpaid andprimarily devoted to the family. By defining the women’sconditions, above all, as a housewife, and housework as aconcrete manifestation of the production and reproduction oflabour force, it identified the specific form of the exploitationof women and demonstrated how an enormous proportion ofthe value produced consists precisely in the labour that womenprovide outside the official labour market every day withintheir own homes. By identifying the housewifes’s role asdetermining factor in the overall female condition, a basis wasformed for a fresh interpretation of issues such as themarginalisation of women at work outside the home: to bemore precise, the traditionally discriminatory nature of workoutside the home was interpreted as a consequence of women’seconomic inferiority, which in its turns stems from her role hasas a worker within the family structure whose main job, socialreproduction, does not receive a direct wage. Since the mid 70s, a cultural and political debate has pervadedour country, deeply affecting the emergence of women’s issues.The theme could no longer continue to be ignored at all levels:from institutions, parties and unions, to leftist and extra-parliamentary groups. In fact, from then on the status ofwomen has become an ever present theme on all politicalagendas. In brief, women’s political demand in the late 70s and early 80shad little to do with seeking a paid job or gaining access topublic offices or to the political arena, but it posed doubts onthe division between the public and private sphere, pointing tothe family and to women’s work as the root of women’s socialweakness. In examining all issues on discrimination againstwomen, family and sexuality became the ground for muchpolitical analysis. The perspective shifted to include women’sability to regain a sense of control of their bodies, re -


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considering sexuality and motherhood as a destiny imposedonto women. Examples of their subjection at the time includethe issues of abortion and divorce.In 1978, Law no. 194 on the interruption of pregnancy wasapproved (it withstood an abrogative referendum in 1981, andan attempt to renegotiate in 2005). That same decade, a set ofrules were approved. They significantly extended the space ofindividual autonomy, conferring full effectiveness to a range ofhuman rights that, at the time, had already been approved, orwere about to gain international recognition, especially for civilapplication. They include Law no. 898 of 1 December 1970on divorce, confirmed by referendum in 1974 andsubsequently amended in 1987 with Law no. 74/1987; Lawno. 151/197513, the family reform act, recognising legalequality between spouses, repealing the dowry institution,conferring the same protection to illegitimate as legitimatechildren, creating the communal estate as family legal propertyregime (there being no other agreement), and parentalauthority was changed conferring such power onto bothparents14. Moreover, the so-called crimes of honour and thecriminal law on women who commit adultery were repealed. To fully grasp the fight that women of that period undertook,a salient fact needs to be taken into account, namely thefracture that existed within the movement and institutions,and the general estrangement of feminism over a wide range ofissues on women’s conditions, especially in relation toemployment policies. From such a perspective the events of1977 linked to the approval of Law no. 903 on respectingequality of treatment in employment between men and womenproved exemplary. At the time the movement had totallyignored it. The same was true for Law no. 125 of 1991, onpositive actions, followed by Law no. 215 of 1992, on womenentrepreneurs. Inspired to neofeminist criticism onemancipation, the feminist movement questioned the idea ofequality between men and women achieved from astandardisation of different subjects and genders, to focusinstead on gender issues that stemmed not merely from thebiological diversity but are influenced by individual and socialcondition.Feminism was politically ineffective, compared to the wordingin Law no. 903, due to its estrangement from the choices made

13 Law of 19 May 1975, no. 151,Riforma del diritto di famiglia.14 Family law has experiencedseveral reforms over the years: Lawno. 431/1967 modified the CivilCode on adoption and foster care,both measures subsequentlyreformed with Law no. 184/1983 andLaw no. 149/2001. With Law no.121/1985 (implementation of theConcordat with the Holy See) theconcordatarian marriage disciplinewas amended; Law no. 40/2004was adopted to regulate medicallyassisted procreation; finally, Law no.54/2006, on the so-called sharedguardianship of children, has deeplyinnovated the Civil Code provisionson family relations.

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by the institutional system at the time. The presence offeminists, even in the work domain, was often characterised asa segment of the protest movements of those years whoseprimary goal was to legitimise the specificity of women’scondition and to totally liberate women rather thanformulating questions or expressing specific interests on thestatus of women in work outside the home. In fact, Law no.903 of 1977 which prohibits discrimination at work served toremove some of the superstructural legal restraint factors thatreinforce and endorse, at the regulatory level, the rigidity ofwomen’s work. It therefore proved to be a significant steptowards the goal of gender equality. Another fundamental aspect of Law no. 903 involves thecancelling of some traditionally protective measures on womenworking for the labour market (with the exception of theprohibition of nightwork, and the law on the working mother)which in the implementation period proved inadequate totackle real cases requiring specific protection. Legislation on equality between men and women in the worksector, for several years, had not achieved any notable effects.Moreover no new policies promoting an improvement offormal equality, or aimed at helping working women achieveequality affirming equal opportunities, ensued. They, alongwith the instrument of positive actions, and the figure of«adviser on equality», constitute the completion, in legal andpolitical terms, of a transition from an idea of equalityanchored to a formal recognition, to a substantial idea ofequality.

1.4. Towards the 80s: The Role of European Legislation on Equality and Equal Opportunities between Men andWomen, and the Issue of Women’s Political Participation

The late 70s and early 80s witnessed a gap among civil society,social movements and the political-institutional community.Though significant, this gap gradually began to change asthemes on women organisations were being integrated into thepolitical party and trade union agenda achieving in the end apartial response in terms of policy output. Official policies andthe organisation of civil society that created the feministexperience kept diverging significantly on issues on equality,


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despite the growing interest of both the scientific community,the political parties and governments. Furthermore, theEuropean Economic Community played an important role atthe time in placing great emphasis on equality and equalopportunity policies between men and women within memberstates. In this regard, it must be emphasised that, at the time, thatEuropean Community action could be achieved only withinthe boundaries that had been set by the Treaty of Rome(1957). For the International Women’s Year (1975), theCouncil of European Communities repeatedly intervened,initially with a Directive (no. 75/117/EEC of 10 February1975), prescribing equal pay between both men and women,then recalling member states to ensure the application ofArticle 119 of the EEC Treaty. Subsequently a second Directivewas issued (no. 76/207/EEC of 9 February 1976, amended in2000) that served to implement the principle of equaltreatment between men and women as regards to access toemployment, in vocational training, promotion and workingconditions. In 1978, the adoption of a third Directive thatimplemented the principle of equality in the sphere of socialsecurity (no. 79/7/EEC of 19 December 1978) followed.Moreover those years witnessed a distance between the socialand the labour reality with women’s participation coming innew proportions and ways compared to the past. From a qualitative viewpoint, it has become clear that sinceformal equality was introduced, cases of clear-cutdiscrimination against women workers have grown fewer, butsituations have continued to exist in which women aresystematically placed in jobs for which they are overqualified;this is true both for access to traditionally male professions andqualified jobs and for promotion to managerial post. Since theend of the 70s, the development of public policies at theEuropean level for the promotion of female employment is aresult of the awareness that the formal guarantees offered bymeasures of the equal opportunities type are not enough. The content of equal opportunity projects was inspired tosome extent by a wider ranging desire for an overall revision ofthe sexual division of labour. Yet, setting aside idyllic utopiasand going beyond the old belief that work outside the homeequals emancipation, concrete experience of the women’s

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double presence begun to show a profound contradictionbetween production and reproduction. Since the experience offeminist movement, the feeling was that any reflection,proposal or debate on women’s labour must inevitably takeaccount of housework.Yet women’s absence from the decision-making world led to adeeper consideration of democratic institutions and to the roleof women’s participation, especially in trade unions and leftwinged parties that placed greater focus on themes like theprotection and promotion of women’s rights. Such reflectionyielded future debates on the so-called «quotas», a measureaimed at assuring greater gender balance within parties andamong candidates to local and national elections15. Italyattempted to rebalance women’s presence in elected assembliesby passing an ordinary law. However, a strict interpretation ofthe principle of equality taken by the Constitutional Court in199516 raised questions as to the legality of various measures,after the 1993 referendum, to balance women’s representationin the electoral system. This point was a moment of transitionto a majority system, in which women’s presence amongcandidates became even more problematic. Ultimately, fromsuch debate and from the judgment of the ItalianConstitutional Court arose Constitutional Law no. 1 of 2003.Article 51 of the Constitution17 affirms the principle of equalopportunities in areas that include access to work in public andelected offices. In addition, Constitutional Law no. 3 of 2001had established a duty for regional legislation to grant equalaccess to men and women in elected offices18. The general lawon equal access to elected offices and on the best suitedmeasures to achieve it was therefore approved two years afterthe approval of the specific law aimed at the Regions: this canbe explained by examining the political difficultiesencountered in the revision of Article 51 of the Constitution,and by the fact that in the meantime, a large and complexreform of regional autonomy was taking place. This generateda series of juridical controversies since regional legislation onelections was supposed to be limited by the fundamentalprinciples set out by state laws in accordance with theConstitution. Obviously, the imbalance between men andwomen in institutions cannot be viewed as an absoluteevaluation parameter of women’s freedom. But in Italy’s case, it

15 The first female Minister in Italywas Tina Anselmi (Minister ofLabour and Social Welfare). She wasappointed in 1976. Since the 80s,and more intensely in the followingdecade, a debate arose onmandatory quotas to assure femalecandidates in political andadministrative elections. 16 Corte costituzionale, Judgmentno. 422 of 12 September 1995. 17 Constitutional Law of 30 May2003, no. 1, Modifica dell’articolo 51della Costituzione, published in«Gazzetta ufficiale» no. 134 of 12June 2003: «Any citizen of eithersex is eligible for public offices andelected positions on equal terms,according to the conditionsestablished by law. To this end, theRepublic shall adopt specificmeasures to promote equalopportunities between women andmen».18 Constitutional Law of 18 October2001, no. 3, Modifiche al titolo Vdella parte seconda dellaCostituzione, Article 117: «Regionallaws shall remove any hindrances tothe full equality of men and womenin social, cultural and economic lifeand promote equal access toelected offices for men andwomen».


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no doubt reflects a dimension of distance between politics andcivil society, the relative impermeability of representativebodies to society, and the lack of a culture of participationwhich really includes all social groups. The issue of women’sparticipation at all decision-making levels is a relevant one forthe Committee on the Elimination of All Forms ofDiscrimination against Women, critically underlined in all theobservations to the reports Italy has presented to date tocomply with the ratification of the UN Convention.

2. Italy and the UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)

The cultural and political debate experienced in the late 70s inour country was charachterised by the emergence of newwomen’s issues. At the institutional, party and unions levelsignificant moments of reflection came about as to theconsequences of a potential political demand managed bywomen were significantly different at a quantitative level,cross-cutting party affiliations.From the political viewpoint a distinct trait that characterisedthis particular historic moment in Italy, in terms of women’srights issues, was undoubtedly the tension generated, on theone hand, by the existing fracture between the experience, ofthe political organisation and considerations on the feministmovement, and on the need to advance, in institutionaldebates, women’s requests on social and legal questions. If suchinformation is not taken as a specific expression of women’spolitical experience, then understanding Italy’s lack of interestin admitting not only the laws on equal rights, but, a few yearslater, also the law to ratify and execute the Convention on theElimination of All Forms of Discrimination against Women, isnot easy. Italy signed the CEDAW Convention on 17 July 1980 whileratification took place on 10 June 198519. The early 80sexperienced a progressive decline in the political visibility ofprotest movements and an attempt, on the part of thegovernment, to tackle at political and institutional levels aseries of issues which had appeared a decade earlier, andespecially to manage a demand of working women which

19 Law no. 132 of 14 March 1985,Ratifica ed esecuzione dellaConvenzione sull’eliminazione diogni forma di discriminazione neiconfronti della donna, adottata aNew York il 18 dicembre 1979.

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featured entirely new characteristics and proportions. A factor that may have determined the lack of attentiontowards the Italian ratification of the Treaty may have alsostemmed from a lack of true cultural sensitivity on issues ofinternational breadth, not only amid the population, but evenamong the media and the political class itself, with a fewsignificant exceptions. In Italy this fact weighed more than inother country not only because of the particular historicalmoment in which accession to the Convention took place, butalso because until two decades earlier little resonance wasdedicated to the international political sphere. The same feminist experience, though inspired to themes thatdo not refer to mere national borders and are operativelyconnected to a supranational reality, produced a discussion onmostly domestic issues or in any case characterised by tonesand themes that did not seem to have immediate repercussionsin political arenas of intergovernmental organisations.Moreover the question of women’s rights was not presentedusing the language and the paradigm of human rights law. Thisin fact precluded that an advancement of women’s conditionbe viewed as a process investing different areas of individualand social life. Yet the International Conference on Women inMexico City, in 1975, had stated that the problems connectedto the three goals – equality, development, and peace – uponwhich the United Nations built its policy on women, impliedadopting a holistic approach whereby any single critical areaswere to be seen as indivisible and interdependent, and so werethe policies to tackle them. This remark is meaningful ifviewed from a temporal perspective since the law that ratifiedthe Convention in Italy practically coincided with the 3rdWorld Conference on Women in Nairobi. The latter had nodoubt greater resonance than the previous two conferences andalso featured an analysis and theorisation of themes Italianfeminism was keen of. In Italy, the President of the Republic ratifies internationalconventions, and if required, obtains prior authorisation fromthe Chambers. Parliament authorisation is essential in case ofpolitical agreements or treaties involving judicial settlements,or the amendment of a law. Adaptation of Italian law tointernational law can occur in two ways: automatically in caseof customary rules, and with an ad hoc act in case of treaty law.


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The act giving effect to the treaties is the execution order, aspecial formula that expresses the will to execute and apply thetreaty within the state and that transforms international rulesinto domestic rules. In relation to women’s rights, Italy, at the time of theratification of the CEDAW, and in the years prior to the firstpublication of the periodic report, already had adopted anumber of treaties on the protection of women’s rights as wellas a significant number of ILO conventions dealing withworking women, maternity protection, fighting discriminationand social policies. The Italian Constitution has no mention of the CEDAW, noris there any mention of other human rights treaty or of theUniversal Declaration of Human Rights. And Italianlegislation makes no explicit reference to the Convention.Recently however, some preliminary work was undertaken toencourage measures for the promotion of women’s rights in theinstitutional debates. Such work contains specific reference tohuman rights principles and treaties which have becomeincreasingly explicit and systematic also owing to the constantreference, in case law, and to a gradual penetration oftransnational politics in areas that, until recently, pertainedsolely to national responsibility. With the principle of non discrimination and its interpretativeevolution, in tandem with the development of EuropeanCommunity law, it is important to notice that political andjudiciary dimensions have played a pivotal role in favouring aseries of legislative reforms (including constitutional reform)oriented at promoting the CEDAW principles and the GeneralRecommendations its Committee has proposed. TheConvention, better known now than in the first years of itsadoption, has become a mandatory reference point whendiscussing the women’s rights. But it is not yet a subject inspecial training programmes of judicial staff, even if somesectoral courses on ad hoc subjects (like violence againstwomen and trafficking for sexual exploitation) call on it. Thissituation may stem from the Italian legal framework onwomen. In fact, as demonstrated by an Italian governmentstudy, the entry into force of this Treaty had domestic andCommunity laws align themselves to basic CEDAW standards.In fact, progressive adjustments in the legislative field and at

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political level over the years assured greater protection ofwomen’s rights. One would say it was a sort of physiologicaladaptation and a progress that, as highlighted earlier, hadbegun even earlier but only in the 90s did it serve for politicalnegotiations.

3. CEDAW’s Political Relevance and Impact in Civil Society

CEDAW’s political affirmation in Italy found the work ofinstitutions for equal opportunities to be a privilegedobservatory. The system, it must be specified, and in particular,the organigram of the system of equal opportunities, isextremely complex and articulate and, it is not always effectivein promoting women’s rights. Italy has a Ministry for GenderEquality, a national committee for equality at the Ministry ofLabour and Social Affaires, a national commission for equalopportunities between men and women at the Presidency ofthe Council of Ministers, a network of advisers on genderissues at the national, regional and provincial level, committeesfor equal opportunities working in the government’s publicoffices, and regional, provincial and municipal committees forequal opportunities. The structuring of the system began in1983, thus prior to the CEDAW ratification, by instituting, inthe Ministry of Labour, the National Committee for EqualOpportunities. The Committee’s structure was finally definedby Law no. 125 of 1991 on positive action to increase genderequality at work, introducing a regional and provincialCouncilor on Equality as a figure that could settle situations ofconflict and discrimination related to work and conditions ofgender. The Committee, made up of 40 members, has the prime roleto promote positive action, develop codes of conduct, monitorthe enforcement of laws on equality, promote women’srepresentation, and propose solutions to labour disputes. Thenational, regional and provincial Women Parity Councillorsare institutional figures whose function is to promote, monitor,and implement laws on equal opportunities, in the respectiveareas of competence, and to carry out their duties as publicofficials (Article 1 of Decree no. 196/2000). Differently the


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Office of the National Councillor deals with cases of nationalCouncillors instituted by Decree no. 196/2000. One of the initial results of non-discrimination policiesforeseen by CEDAW can be traced to national collectivecontracts, stipulated in 1987, on public administration. Forthe first time, measures aimed at creating true conditions ofequality between male and female workers were foreseen. Inaddition committees on equal opportunities were established,and subsequently affirmed by Law no. 125 of 1991 and wereregulated by Circular no. 12 of 1995 by the President of theCouncil, who in conferring onto them the especially importanttask recommends its provision in all institutions.The National Commission for Equality and EqualOpportunities between Men and Women was established in1984 as a response to the recommendations contained in theAction Plan that followed the 2nd International Conference onWomen in Copenhagen. In 1990, Law no. 164 modifiedcertain roles, responsibilities, the composition, duration,financial limits of the Commission whose laws were revisedonce again in 1996 with Decree no. 542. Then, with Decree no. 226 of 200320, the Commission forEquality and Equal Opportunities between Men and Womenwas renamed calling itself the Commission for EqualOpportunities between Men and Women, set up in theMinistry for Equal Opportunities. Currently the Commissionis composed of a female Minister for Equal Opportunities, afemale Vice-President, a Secretary, 11 women representingvarious associations and movements, 4 women in trade unions,4 of which are entrepreneurs, 3 affirmed women fromscientific, literary and social fields, and 2 regionalrepresentatives. Their duties vary and may include proposingfunctional legal and regulatory changes to the Minister,helping to fight discrimination, monitoring the status ofimplementation of policies on equal opportunity in differentsectors of political, economic and social activities and ofcarrying out studies and research on the theme.The Ministry for Equal Opportunities was established in 1996;a year later the Department for Equal Opportunities followed.It operates from the Presidency of the Council as organisa -tional support structure exercising the functions of Minister(according to the Prime Ministerial Decree no. 405 of 28

20 Legislative Decree of 31 July2003, no. 226, Trasformazione dellaCommissione nazionale per la paritàin Commissione per le pariopportunità tra uomo e donna, anorma dell’articolo 13 della legge 6luglio 2002, n. 137.

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October 1997). With time the structure changed owing to theGovernment Decree of 30 November 2000 followed by theGovernment Decree of 30 September 2004, currently referencenorm for policies promoted by this body. Functions alsoinclude adjusting the internal legislation to EU law principlesand provisions, implementing EU programmes, managingrelations with organisations that work for equality and equalopportunities in Italy and abroad, in particular within theEuropean Union, the United Nations and the OSCE. The Department, in dealing with such activities, is responsiblefor missions of representation of the Italian government ininternational relations. This often implies designating officialrepresentatives at the presentation of periodic reports at UNaffiliated Committees, including the CEDAW. In 2006, with Decree no. 198/2006, all Italian legislation onequal opportunities was reviewed and collected within a singlecode embodying 58 articles setting out the general provisionson the promotion of equal opportunities between men andwomen, in ethical-political relations, in economic and in civiland political relations21.In Italy, consistent adherence to the system of equalopportunities as envisaged by the Convention, and in generalby the political commitment adopted by national governmentsat international conferences, was especially endorsed by theDirective of the Presidency of the Council of Ministers of 27March 2007 (the Prodi-Finocchiaro Directive)22. With it, anew season has started, at least at a formal level, characterisedby the adoption of a series of measures that are consistent withcoherent provisions of supranational political arenas, inparticular from international and regional organisations thatoperate in different ways within the domain of women’s rights.With this specific act the government intended to integrate arange of issues into national policies which had beennegotiated at the Conference on Women, in Beijing, in 1995.The most significant ones include the policies created tosupport greater women’s participation in important decision-making bodies (empowerment of women), to integrate thegender perspective into government policies (gendermainstreaming), to educate on gender culture, and to improvethe organisation of work so that it includes greater awareness ofgender-difference, as women are both on the labour market

21 Legislative Decree of 11 April2006, no. 198, Codice delle pariopportunità tra uomo e donna, anorma dell’articolo 6 della legge 28novembre 2005, n. 246.22 Directive P.C.M. of 27 March1997, Azioni volte a promuoverel’attribuzione di poteri eresponsabilità alle donne, ariconoscere e garantire libertà discelte e qualità sociale a donne euomini.


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and in the family. Additionally, the Prodi-FinocchiaroDirective is also the Italian government’s first document to takethe problem of violence against women into consideration,making government actions a priority. The Beijing Platformachieved great consideration, but there was also a need for theItalian government to respond to dozens of anti-violencecenters and homes for women, established in the 80s and 90s,which were scattered throughout the territory, by initiative ofwomen’s groups and associations, often working in synergywith local bodies, especially with the Municipality.A notable achievement of the Prodi-Finocchiaro Directiveinvolves the approval of Law no. 53/2000 on provisions for thesupport of motherhood and fatherhood, for the right to careand training and for the coordination of the pace of city life23.Its goal is to promote a balance between the time at work, ofcare, of training and in relations, by introducing a) parentalleave and greater support for parents of children withdisabilities, b) leaves for education, c) the coordination of citylife pace with time dedicated to promote social solidarity. Moreover, ten years after the Prodi-Finocchiaro Directive,there was the adoption of another Directive on theimplementation of equal opportunities in public adminis -tration (Directive Pollastrini) of 23 May 200724: an importantstep in favour of a culture promoting equal opportunities inpublic adminis tration with policies to empower women andfor gender mainstreaming. This document in fact, focused onthe mechanics of women’s careers, pointing to the significantpercentage of women that graduated from university employedin the public sector (over 60%). In general, the main goals ofthe Directives are to spread a thorough implementation ofexisting provisions on equal opportunities, boost women’spresence in top notch positions, develop quality work practiceand organisation culture that serve to enhance the output of allworkers and public office employees.Both the above-mentioned documents attracted little attentionfrom the media and also from women presently committed toassociations promoting human rights or initiatives for thesupport and protection of women. Once again, there seems tobe a certain distance between the institutional needs and issues,and the needs of civil society and movements. A very different course emerged when tracing problems of

23 Law of 8 March 2000, no. 53,Disposizioni per il sostegno dellamaternità e della paternità, per ildiritto alla cura e alla formazione eper il coordinamento dei tempi dellecittà.24 Presidenza del Consiglio deiMinistri - Dipartimento dellaFunzione Pubblica, MinisterialDirective of 23 May 2007, Misureper attuare parità e pariopportunità tra uomini e donnenelle amministrazioni pubbliche.

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violence against women, the emergency of the spread ofhuman trafficking for sexual exploitation, the debates overprostitution policy, discussion of its approval, in 2006, and thedraft law on female genital mutilation. The current law on sexual violence and the debate on this issueillustrate the difficulty Italy has had in aligning itself to theindications of the international political arena in amending itspolicy guidelines and operational standards at the axiologicaland practical level to preserve forms of control over women’ssexuality. Still today, it is markedly supported by institutions ofthe Catholic Church and its role in Italy in women’semancipation processes cannot be regarded as marginal. InItaly, as mentioned above, with the approval of the new FamilyAct, in 1975, marital authority was abolished namely thelegality, on the spouse’s part, to use «means of correction» anddiscipline with the wife. There were murders in the name ofhonour and weddings that served for reparation until 1981,when the Italian penal code was amended. The first provisionreduced the penalty in case the husband murdered the wifebecause of adultery; the second, in case of rape, cancelled theoffence if the man married his victim. In 1996, with theapproval of the new law on sexual violence25 came afundamental change of the dominant juridical culture in theway sexual violence was viewed. It sets out the offences relatedto sexual violence in the same chapter as those against theperson and the individual freedoms, instead of being associatedwith those against public morals and decency.The law in force in Italy on sexual violence is the product of along series of struggles and actions that spanned the last 20years. In the end, all the political forces in Parliament,regardless of their differences, led female members ofParliament and senators to pass an unquestionablyrevolutionary bill compared to past operative legislation. TheProdi-Finocchiaro Directive of 1997, based on previouslyestablished international instruments, stressed the importanceof monitoring violence by means of national surveys. The goalwas to enhance the activities that could serve to fight and toraise public awareness. Thus in 1998, the National Institute ofStatistics (ISTAT), with a mandate of the Department of EqualOpportunities, undertook the first national statistical study onviolence and sexual harassment. It substantially confirmed the

25 Law no. 66 of 1996, Norme controla violenza sessuale.


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quantitative response and the types of phenomena found inanti-violence centers and in investigations conducted byindividual researchers in previous years. Furthermore, in 2001, the Parliament passed Law no. 154 onmeasures against violence in family relationships26 thatprescribes the expulsion of the accused from the family homeor, in case the life of the injured person or close relativesrequire protection, the defendant is prohibited from enteringthe premises where the victim normally goes, particularly theworkplace, the family home or the home of close relatives,unless the presence is required for business purpose.With regard to prostitution and human trafficking for sexualexploitation, here too there is a perfect alignment with theterms of the obligations signed at the international level andthe ratified international treaties, and a commitment to protectthe victims and then to reintegrate them socially: this isembodied in a provision of the immigration act which, incertain circumstances, enables victims of trafficking in humanbeings to access specific programmes that assist them and, onlyin a secondary and non-binding way, have them collaboratewith judicial authorities. In Italy such action was made possiblethanks to its institutional commitment. But there were alsoseveral associations working to promote human rights which,over the years, have worked remarkably well in tackling theproblems of prostitution, with particular attention to situationsof severe exploitation and trafficking, helping thousands ofyoung people. Italy took part in the International Conventionagainst Trafficking for Prostitution and in the United NationsProtocol to Prevent, Suppress and Punish Trafficking inPersons, Especially Women and Children, supplementing theUnited Nations Convention against Transnational OrganisedCrime. The country’s current orientation in terms ofprostitution policies tends to be semi-abolitionist. Yet for years,the emergency of the severe trafficking phenomenon in ourcountry, and the notable number of people working in the sextrade have helped to trigger a heated political debate overprostitution leading to a general tendency that favoursresorting back to regulating prostitution.The influence of international organisations on issuesconnected to severe forms of sexual exploitation, as well as onprostitution, is by now evident, as illustrated by the content of

26 Law no. 154 of 5 April 2001,Misure contro la violenza nellerelazioni familiari.

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important international and regional treaties of reference, andby the focus that the fight against severe human rightsviolations and the trafficking at the supranational level hasreceived at different levels of governance. Another topic in many national documents that wasinfluenced by the international law on women’s rights is Lawno. 7 of 9 January 2006 to combat female genital mutilation27.It sets out Provisions to Prevent and Prohibit the Practice ofFemale Genital Mutilation, in order to implement measuresthat prevent, deter and suppress the practice of female genitalmutilation. Such measures can be implemented, as ruled bylegislation, by raising awareness in groups at risk, traininghealth workers, training school staff to help preventing suchacts, monitor cases and spread a culture to fight and punishsuch practices in Italy and abroad. Italian jurisdiction isclaimed both in case the act is committed by an Italian citizenor a foreigner living in Italy on Italian territory and abroad –adopting an internationally coordinated programme. Article 1of this law recalls the constitutional grounds of protection ofwomen and girls, thus the principles according to which theRepublic stands as a guarantee of «fundamental human rights»,of «equal social dignity» and proclaims «health as afundamental human right and interest of the community» (seerespectively Articles 2, 3 and 32 of the Italian Constitution28).Article 1 also refers to the Declaration and Action Planadopted in Beijing, on 15 September 1995, at the Fourth UNWorld Conference. From such orientation it is interesting tonote that national legislature explicitly chose to combineconstitutional points with political international documentsthat were important to develop interventions on theprevention and repression of violence against women. The government, with Decree-Law no. 11 of 23 February2009, harshened sanctions against sexual violence instituting«urgent measures on matters of public security and ofcountering sexual violence»29, introducing stalking as anoffence and harshening penalties for crimes of sexual violenceby making the detention of offenders compulsory. Other than the above-mentioned examples at present,reference to the CEDAW is frequent and the rights it embodieshave become a study topic in university curricula, offeringcourses on human rights, and in general education

27 Law of 9 January 2006, no. 7,Disposizioni concernenti laprevenzione e il divieto dellepratiche di mutilazione genitalefemminile.28 Article 2: «The Republicrecognises and guarantees theinviolable rights of the person, bothas an individual and in the socialgroups where human personality isexpressed. The Republic expectsthat the fundamental duties ofpolitical, economic and socialsolidarity be fulfilled».Article 3: «All citizens have equalsocial dignity and are equal beforethe law, without distinction of sex,race, language, religion, politicalopinion, personal and socialconditions.It is the duty of the Republic toremove those obstacles of aneconomic or social nature whichconstrain the freedom and equalityof citizens, thereby impeding thefull development of the humanperson and the effectiveparticipation of all workers in thepolitical, economic and socialorganisation of the country».Article 32: «The Republic safeguardshealth as a fundamental right of theindividual and as a collectiveinterest, and guarantees freemedical care to the indigent.No one may be obliged to undergoany health treatment except underthe provisions of the law. The lawmay not under any circumstancesviolate the limits imposed byrespect for the human person».29 Decree-Law of 23 February 2009,no. 11, Misure urgenti in materia disicurezza pubblica e di contrastoalla violenza sessuale.


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programmes devoted to women’s condition. Evidence thattoday there is greater awareness of these internationalconventions on human rights and on women’s rights isillustrated by Italy’s law authorising the ratification of theOptional Protocol at the CEDAW, in September 2000. Onthat occasion many individuals and groups voiced their viewsin favour of Treaty adhesion and, especially through theInternet, made the content explicit, highlighting the guaranteemechanisms and potential implications in terms ofjusticiability of women’s human rights deriving from theratification.

4. The First and Periodical Reports Italy Submitted to the CEDAW

To date, the Italian government has submitted five periodicreports to the CEDAW. The sixth is currently in progress andit was expected to reach the Committee in July 2006. TheDepartment of Equal Opportunities established by thehomonymous Ministry is working on it right now (Fall 2009). Italy’s first periodic report (CEDAW/C/5/Add.62) expected on10 July 1986 was presented and discussed on 20 October 1989in the Committee’s 10th work session; the second periodicreport (CEDAW/C/ITA/2) was expected on 10 July 1990 butwas received on 1 March 1994 and examined in the 17th worksession (15 July 1997) along with the third periodic report(CEDAW/C/ITA/3) expected on 10 July 1994 but obtainedby the Committee on 21 June 1997. The fourth and fifthreports (CEDAW/C/ITA/4-5) were prepared jointly andsubmitted on 22 December 2003. They were examined in the32nd session in January 2005. Concerning the initial report, despite a general appreciation forthe document’s correctness at the procedural level, theCommittee raised a series of points to the Italian governmentrepresentative about incomplete information, not from theperspective of legislation and policies for the advancement ofwomen, but rather for the actual situation of women. Inparticular, the questions raised embodied some historicallycrucial nodal points, some of which are still not completelyresolved. The report should have focused on the diversity of

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situations of different geographical areas of the country basedon some indicators. Another issue that emerged from theinitial report was the persistence of cultural stereotypes thatdiscriminate against women, as sexism in language illustrates.The Committee then clearly made reference to the difficultiesin amending the laws on sexual violence and on prostitutionpolicies, also because of the spread of HIV. In preparing thereport, the institutional infrastructure on equal opportunitieswas put in the forefront, as was the participation of civic andsocial organisations in the preparation of the report, which inthe initial phase was edited by the Interministerial Committeefor Human Rights working from the Ministry of ForeignAffairs and later from the National Commission for Equalityand Equal Opportunities between Men and Women. Whileassessed, other items of particular contrast for the governmentrepresentative regarded the transmission of citizenship, frommother to child, and the scarcity of women in nationalParliament, European institutions and in the legal system. In relation to the two subsequent reports (CEDAW/C/ITA/2and CEDAW/C/ITA/3), examined jointly in July 1997, whatemerged from the beginning was the scope and focus,especially in the third report, that was recognised to thepolicies aimed at women and presented, based on the textdiscussed at the time of the debate, in a comprehensive way bya high-level government delegation. Concerning the criticalareas, a number of considerations were made in relation to theinadequacy of measures conceived to break away fromstereotypes and to the presence of national laws based on apatriarchal logic that discriminated against women. At stakethere was even the issue of women’s political participation,especially in terms of quota, regarded by the Italiangovernment as unnecessary in backing women’s electoralcandidacy. The Committee had some concern on the difficultyof some areas in Southern Italy to secure public facilities incase of voluntary interruption of pregnancy. Such situation nodoubt stems from the impact of conscientious objection by asignificant number of doctors, as recognised in Law no. 194.Committee recommendations were centred mostly on fightingindirect discrimination, the implementation of gender sensitivepolicies, particularly in relation to a conciliation between timefor the family and employment outside the home. As to family


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side, the protection of women and children against familyviolence was also considered. It called for the urgent adoptionof a law which fully responded to different situationseffectively and acted as a deterrent. In preparing its periodicreports, the Committee also hoped for greater collaboration ofNGOs, even with the goal of raising people’s awareness aboutthe Convention and the rights it sets out therein. The last two reports, examined jointly by the Committee(CEDAW/C/ITA/4-5) in the 32nd session, held in January2005, led to important considerations. In the introduction, themember state representative highlighted the efforts madetowards the reaffirmation of women’s dignity and to protectwomen from all forms of discrimination, abuse and violence,coherently with the commitments made at the BeijingConference and as a result of the adaptation of nationallegislation to the new EU Directives to fight discrimination, asthe European Directive no. 73/2002 illustrates30. Its goals areto promote equal access to the labour market, to education,job training, and to labour and social conditions. The commitment of the member state to ratify theConvention was apparent in 1996, through the appointmentof the Ministry for Equal Opportunities, responsible for thecoordination and effective implementation of policies on equalopportunities. Then, in 2004, this Ministry established aNational Office for the Promotion Equal Treatment and theRemoval of Any Racial and Ethnic Discrimination (UNAR) asa tool to fight other forms of discrimination. Regarding the participation of women in decision-makingspheres, the government representative referred to theamendments of Article 51 of the Constitution, Law no.90/2004 on the rules on European Parliament elections andother provisions on the elections of 200431. It foresees that atleast a third of the election candidates in the EuropeanParliament be women. With regard to working conditions, thesteady growth of female employment was highlighted. Thispositive trend was also confirmed in the business sector inwhich, from 1998 to 2003, women’s participation rose by3.7%. In addition, the government’s commitment to issues ofviolence and exploitation were brought up. Such orientation isevident from Law no. 228/2003, with measures against humantrafficking32, aligned to the provisions introduced inter -

30 Directive 2002/73/EC of theEuropean Parliament and of theCouncil of 23 September 2002amending Council Directive76/207/EEC on the implementationof the principle of equal treatmentfor men and women as regardsaccess to employment, vocationaltraining and promotion, andworking conditions.31 Law of 8 April 2004, no. 90,Norme in materia di elezioni deimembri del Parlamento europeo ealtre disposizioni inerenti adelezioni da svolgersi nell’anno 2004.32 Law of 11 August 2003, no. 228,Misure contro la tratta di persone.

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nationally with the Protocol against Transnational OrganisedCrime to Prevent, Suppress and Punish Trafficking in Persons,Especially Women and Children. As to the Committee’s concluding comments, notice should goto the fact that the report contained no detailed references onArticles 8, 9, 15 and 16 of the Convention. This informationhad been requested and was among the list of questions theCommittee had handed to the Italian representatives, but thestate has not come up with any written response. TheCommittee also highlighted the inadequate involvement ofNGOs in helping to draft the report, and expressed itsappreciation of the amendment of Article 51 of theConstitution which, as stated by the delegation, served toreinforce the principles of the Convention by conferring aconstitutional value to them. Furthermore, the Committeeendorsed the legislative reforms of the previous years and theratification of the Optional Protocol at the CEDAW. Whatemerged however was that national legislation had not defineddiscrimination against women in accordance with Article 1 ofthe Convention, despite the introduction of the amendment ofArticle 51 of the Constitution on the principle of equalopportunities for men and women. But the Committeeconceives it possible that not having a specific obligation mayhelp reduce the scope of the substantive equality principle. On this issue however, it should be observed that such view isnot acceptable since, after Italy ratified the CEDAW in 1985,the Italian legal system has a definition of discriminationagainst women enshrined in the CEDAW. The law orderingthe execution of the CEDAW formally approves all of the rulescontained in the latter, as though they were rules of internallaw, and thus also the concept of gender discrimination. Thecurrent wording of Article 117 of the Constitution stating that«Legislative powers shall be vested in the State and the Regionsin compliance with the Constitution and with the constraintsderiving from EU legislation and international obligations»should also be noted. It seems evident that internationalconstitutional obligations imply that any internal prescriptionsthat are in contrast with such obligations ought to beconsidered unconstitutional and must thus be reformed andelevated to international standards, eliminating the possibilityof having subsequent inconsistent legislative acts. It seems


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however that the relevance of such definition, not beingimmediately perceivable in so far as it is relegated in aninternational law instrument, no doubt would deserve a clearexpression also in a law of the national Parliament.To the Committee, the Italian government’s efforts toencourage the participation of women in politics and publiclife, to fight stereotypes, to have adequate education, and toencourage men in activities of home-based family care appearinadequate. The Committee’s remarks also criticised the nationalmachinery on gender equality. While acknowledging theItalian government’s efforts towards the promotion of gendersensitivity in all areas, the Committee was concerned about thelack of specific national mechanisms on human rights and bythe gradual loss of relevance and of functions of the NationalCommission for Equality and Equal Opportunities. Thecreation was suggested of an institutional structure to handlespecific gender issues on discrimination and to monitorpolicies aimed at promoting women’s human rights, andgenerally any measure that may discriminate against gender. On the problem of women’s underrepresentation, though thereis recognition of the greater number of Italian women inEuropean Parliament, the Committee was still deeplyconcerned about the significant underrepresentation of womenin political and public office (particularly the judiciary) andthus recommended the introduction of appropriate measuresto encourage the participation of women, including temporarymeasures in compliance with Article 4, para. 1, of theConvention and General Recommendation no. 2533. The points to emerge on migrant women from the report aremany. Besides the problem of their representation in decision-making bodies, during the confrontation with the Italiangovernment delegation it was asked to account for some of thecritical areas of national legislation on immigration. In general,the Committee claimed that some segments of the femaleforeign population could be more vulnerable and marginalised,especially in education, employment, health and participationin public life. Focus was given to the issue of asylum seekers, inparticular the aspect of not recognising gender-basedpersecution as a ground to obtain the status of refugee. The Committee, urging that concrete measures to eliminate

33 General Recommendation no. 25,on Article 4, para. 1, of theConvention on the Elimination ofAll Forms of Discrimination againstWomen, on temporary specialmeasures.

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discrimination against the most vulnerable groups of women asRoms and immigrants be adopted, has formally asked theItalian government to review, in its upcoming periodic report,the situation of immigrant women and of some minorities onissues that include the access to education, employment,health-related services and participation in politics and publiclife. It also wants the government to consider, as soon aspossible, the ratification of the International Convention onthe Protection of the Rights of All Migrant Workers andMembers of Their Families.In brief, it is possible to talk about a growing attention towardsthe CEDAW in Italy with reference to the latest years,especially within the milieux more committed to thepromotion of the rights of women and, generally speaking, ofhuman rights. While in the period following the ratification the impact ofthis Convention had been actually negligible – both at theinstitutional level and in non-governmental bodies andmovements –, nowadays the acquired awareness of theinternational dimension of certain issues – even as a result ofthe transversality of many violations of the rights of women,for example gender-based violence – has strengthened theattention toward supranational politics and rules, thusstimulating a more effective approach to the CEDAW andother key international legal instruments and documentsaimed at the protection and promotion of the status ofwomen.


Documents

Public Policies and Human Rights: The Effects of the UN Convention on the Elimination of All Forms of Discrimination against Women in Italy