Regulation of Gender Equality as a Fundamental Right in Estonia

• Author: Merle Muda
• Pages: 106-116

Merle Muda

Regulation of Gender Equality as a Fundamental Right in Estonia

Introduction

One of the most important parts of the Constitution of the Republic of Estonia as well as of the other countries is the catalogue of fundamental rights and freedoms, which contains both freedoms protected from intervention by the state and several rights that can be implemented only through the positive activities of the state. The fundamental rights of individuals provided in the Constitution have traditionally been the rights of a citizen in respect of the state.¹ "If a person violates another person's rights and this also constitutes a violation of human rights, then according to the currently prevailing opinions, it is not an issue of human rights law but it is an issue of criminal law, family law, procedural law or other specific branch of law depending on the content of the violation".²

At the same time, the fundamental rights and freedoms of individuals cannot be regarded as solely the rights of the state in respect of an individual. According to § 19 of the Estonian Constitution³, everyone shall honour and consider the rights and freedoms of others, and shall observe the law, in exercising his or her rights and freedoms and in fulfilling his or her duties. We must acknowledge the opinion that the question about being the addressee of the fundamental rights of private persons cannot be disregarded only because a particular tradition exists. Fundamental rights are not exclusively about an absolute relationship between the state and the citizen but also about relations between citizens. Such a case involves the extension of the impact of the fundamental rights and their impact on private persons. Fundamental rights are, by nature, not simply a part of positive law but also principles that are valid in law as such.⁴ As a result, the private person is not subjected to the correlative duties arising from fundamental rights but as a member of society, he or she is obliged to honour the rights and freedoms of other persons. Thus, the private person is not the direct addressee of fundamental right and freedoms; but still his or her rights and freedoms are influenced only by the third-party application (i.e. by another private person) of fundamental rights that is mediated by the state.⁵

Section 12 of the Constitution of Estonia provides for the principle of equal treatment as a fundamental right. According to § 12 (1) of the Constitution, no one shall be discriminated against on the basis of nationality, race, colour, sex, language, origin, religion, political or other opinion, property or social status, or on other grounds. Estonia as many other countries faces an important problem of ensuring equal treatment for women and men or the abolition of discrimination on grounds of sex. Just like the other human rights, the right not to be discriminated against on the grounds of sex involves a horizontal (legal relations between a natural person and a legal person in private law or between a natural person and a natural person) dimension.⁶

Unlike other developed countries, Estonian society is still making its first steps in introducing the principle of gender equality. The opinion of the head of the Equality Bureau⁷, operating under the Republic of Estonia Ministry of Social Affairs, Ülle-Marike Papp, is that in Estonian legal culture, gender equality must be recognised as a fundamental human right, the main principle of democracy and a main prerequisite for social development is justified. Men and women must be assured equal rights and equal opportunities, accompanied by equal duties and liability. The constitutional prohibitions against discrimination and equal rights de jure are essential but not sufficient measures for ensuring equality for men and women. The necessary and sufficient prerequisites will be met only when women, in addition to rights, also have equal opportunities with men to participate in societal activities.⁸ In order to achieve this goal, among other things, the draft Gender Equality Act (GEA)⁹ has been prepared, which has been submitted to the legislative proceeding of the Riigikogu (Parliament)and which was intended to be adopted in 2002. In addition to GEA, prepared in the Ministry of Social Affairs, the Ministry of Justice submitted for approval the draft Equality and Equal Treatment Act¹⁰ in April 2002, which has a wider approach to those issues of equality, prohibiting discrimination on grounds of sex, race, nationality, age, disability, sexual orientation and religious or political opinion. As both drafts provide for similar rules regarding gender equality and it is not clear which one of them will be adopted, only GEA, that was prepared first, was taken as the basis for writing this article. The article will examine the international obligations imposed on Estonia that have influenced the preparation of the act and analyse the impact of the act on the actual implementation of the principle of gender equality.

1. Obligations arising from international legislation

1.1. International regulation

On the international level, numerous acts have been adopted that have to contribute to the implementation of the fundamental rights of people. The principles set out in these documents are most often reflected in the constitutions of the states, in many cases also in secondary legislation. According to § 3 (1) of the Constitution of Estonia, generally recognised principles and rules of international law are an inseparable part of the Estonian legal system. The second paragraph of § 123 of the Constitution provides that if laws or other legislation of Estonia are in conflict with international treaties ratified by the Riigikogu, the provisions of the international treaty shall apply.

Several acts issued by international organisations, prohibiting discrimination on grounds of sex are binding on Estonia. As the first act in this field, the Riigikogu ratified the United Nations (UN) Convention on the Elimination of All Forms of Discrimination Against Women (1979)¹¹ (entered into force in Estonia in 1991). The obligation to implement the principle of gender equality arises, among other acts, also from the UN International Covenant on Economic, Social and Cultural Rights (1966)¹² (entered into force in Estonia in 1992) and the European Social Charter, adopted by the Council of Europe (1961)¹³ (entered into force in Estonia in 2000), as well as convention No. 100 of the International Labour Organisation concerning Equal Remuneration for Men and Women Workers for Work of Equal Value (1951)¹⁴ (entered into force in Estonia in 1996).¹⁵

The UN Convention on the Elimination of All Forms of Discrimination Against Women prohibits any discrimination on grounds of sex. Guided by the convention, Estonia has assumed an obligation to take in all fields, in particular in the political, social, economic and cultural fields, all appropriate measures, including legislation, to ensure the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men (article 3). Articles 4-16 of the convention elaborate on the content of the prohibition against discrimination - women must be ensured equal rights with men and equal treatment in participation in politics and decision-making, in acquiring education, employment, in family duties, etc.

The UN International Covenant on Economic, Social and Cultural Rights, ILO convention No. 100 and European Social Charter provide the implementation of the principle of equal treatment in labour relations. According to article 7 of the UN International Covenant on Economic, Social and Cultural Rights, the states recognise the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular remuneration which provides all workers, as a minimum, with fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work (clause (a) (i)).

According to article 2 (1) of the ILO convention No. 100, each member shall ensure the application to all workers of the principle of equal remuneration for men and women workers for work of equal value.

In article 20 of the European Social Charter, the following principle has been established: in order to implement the right to equal opportunities and equal treatment effectively in employment and vocational issues irrespective of sex, the parties undertake to recognise the right and take measures to ensure or promote its implementation in the following fields:

1. finding of work, protection against lay-off and vocational reintegration;

2. vocational guidance, vocational training, retraining and rehabilitation;

3. labour relations and labour conditions, including remuneration;

4. career, including promotion.

Thus, according to the previously mentioned international acts, Estonia must ensure equal opportunities and equal treatment for men and women in any field, but above all, in the area of labour relations.

In addition to the international provisions binding on Estonia, account must also be taken of the European Union (EU) acts prohibiting discrimination on grounds...