Created January 2011
Although no international laws are specifically directed at the protection of widows, several international laws contain provisions relevant to the treatment of widows.
Widows who have been maltreated can seek relief under the Universal Declaration of Human Rights, adopted by the General Assembly of the United Nations in 1948. This document is relevant to the protection of widows in that it articulates the right to life, liberty and security of person; the right not to be tortured or ill-treated; and the right to an adequate standard of health and well-being. Several of the harmful practices discussed in this section are in violation of the Declaration.
The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) is an international treaty that was adopted by the United Nations General Assembly in 1979, with nearly 200 parties. Although CEDAW does not address widows specifically, it broadly addresses all forms of discrimination against women, and requires governments to take the steps necessary to ensure equal access to education and healthcare. Additionally, CEDAW requires that steps be taken to modify laws and social behavior to eliminate customary practices that discriminate against women. Attempts to justify the maltreatment of widows often include the explanation that such behavior is part of a customary practice. CEDAW also requires governments to take measures to ensure freedom in the choice of a spouse. This contradicts the practice of forcing marriage upon widows.
General Recommendation 19 to CEDAW was adopted in 1992 to more directly address the issue of violence against women, recognizing that violence against women is a human rights violation whether a public official or private person commits the violence. This is important for the protection of widows because of the likelihood that such violence is committed within the private familial sphere.
The 2000 Optional Protocol to CEDAW provides leverage to influence judiciaries to determine cases with reference to international law. Many states have entered reservations on articles of CEDAW that affect widows, such as those pertaining to personal status law, inheritance, and land rights.
The rights of widows can be further asserted under the Beijing Declaration and Platform for Action
(1995), which calls on governments to take action to address several critical areas of concern, including violence against women and reform to eliminate gender discrimination in inheritance laws. The definition of violence contained in the Platform for Action is broad, and importantly, includes acts which occur in both the public and private spheres.
The Convention on the Rights of the Child (1990) protects children from all forms of violence, and requires governments to take action to protect children’s rights to health, shelter, food, education, and protection. Widowhood has a significant impact on the children of widows; thus, the Convention is relevant to the treatment of widows. Additionally, as the Convention defines a child as anyone under the age of eighteen years, many widows themselves may invoke its protections.
Another instrument that may be relevant to the treatment of widows is the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1987), which protects against “any act by which severe pain or suffering, whether physical or mental is intentionally inflicted on a person . . . for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” While violence against widows would seem to fall under this prohibition, the law’s application is limited when actions occur at the hands of non-state actors in the private sphere of the family.
The International Covenant on Economic, Social and Cultural Rights (1976) recognizes the right to an adequate standard of living, the right to the highest attainable standard of physical and mental health, the right to education, and the right to an equal opportunity to earn a living by work. These rights are violated where widows are prevented from partaking in legitimate economic activity.
In Africa, the African Charter on Human and Peoples’ Rights (1986) and the optional Protocol on the Rights of Women in Africa guarantee individual liberty, equality, and the right to non-discrimination. The optional Protocol on the Rights of Women in Africa is an important step in the advancement of gender equality, and contains articles specifically addressing widows’ rights, the right to inheritance, and special protection for elderly women. However, countries have been slow to ratify this instrument. From Vanessa von Struensee, Widows, AIDS, Health and Human Rights in Africa.
On the national level, many countries have adopted laws aimed at ensuring gender equality, which would prohibit many acts harmful to widows. For example, Ethiopia’s Constitution states that women have the right to equality with men, affirms women’s rights to property and land, and prohibits customs and laws harmful to women. Similarly, Malawi’s Constitution addresses women’s right to equality, including freedom from discrimination in civil law, contracts, property, child custody, and disposition of marital property. Uganda’s Constitution goes even further, specifically stating that “Parliament shall make laws for the protection of the rights of widows and widowers to inherit property from their deceased spouses and to enjoy parental rights over their children.”
One of the remaining obstacles to the protection of widows is the choice-of-law situation created by countries with both formal and customary/religious legal systems. In some countries, a widow may be faced with the reality that, although a formal law is in place that could be used to uphold her rights, a customary or religious law will instead be applied, almost always to the widow’s disadvantage. In India, for example, a customary law discriminated against widows in contrast to the guarantees of equality contained within India’s Constitution, but because the formal legal guarantees of the Constitution did not supersede the customary law, the discriminatory law was applied. From Madhu Kishwar and others v. State of Bihar and others (1996) SCC (5) 125. In Ghana, although the Constitution promised equality, it specifically excluded from its purview customary laws relating to personal matters, leaving widows without adequate recourse for discriminatory actions.
Universal Declaration of Human Rights, United Nations(1948)
Convention on the Elimination of All Forms of Discrimination against Women, United Nations (1979)
General Recommendation 19,
United Nations Committee on the Elimination of Discrimination against Women (1992)
Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women,
United Nations (2000)
Beijing Declaration and Platform for Action, United Nations Division for the Advancement of Women (1995)
Convention on the Rights of the Child, United Nations (1990)
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, United Nations (1987)
International Covenant on Economic, Social and Cultural Rights, United Nations (1976)
African Charter on Human and Peoples’ Rights, Organization of African Unity (1986)
Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa,
African Union (2003)
Vanessa von Struensee, Widows, AIDS, Health and Human Rights in Africa(2004)
Constitution of Ethiopia (1994)
Constitution of Malawi (1994)
Constitution of Uganda (1995)
Constitution of India (1949)
Madhu Kishwar and others v. State of Bihar and others (1996) SCC (5) 125
Constitution of Ghana (1992)
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