From Convention to Peremptory Norm Prohibition of gender discrimination as jus cogens

Abstract

The thesis is investigating if the prohibition of gender discrimination can become a peremptory norm of general international law (jus cogens). The introduction includes a background to human rights and women’s rights and introduces the aim, research questions and method of the thesis. It is also including limitations of what has been of importance and what has been excluded as well as the disposition. The thesis has been done through analyzing current legal instruments and case-law.

The current status of international law is explained and the nature of jus cogens, which consists of norms recognized as the fundamental value of the international community. For it to become a peremptory norm there are certain criteria; it needs to be of general international law and have been recognized and accepted to not be derogated from by the whole community. It is described through case-law and legal instruments. The prohibition of discrimination is a norm that is recognized through multiple different legal instruments regarding race, gender and religion. Prohibition of racial discrimination in the shape of apartheid is considered a jus cogens norm. This has been used in relation to prohibition of gender discrimination where focus of the thesis is.

To describe the legal instruments regarding gender discrimination the Convention on Elimination of All Forms of Discrimination against Women (CEDAW) is explained and how it is implemented. It is discussed on a regional plane through the Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Convention) and lastly through the non-binding international agreement the Beijing Declaration and Platform for Action. The different sources are analyzed in relation to bringing forth the prohibition of gender discrimination to be recognized as a jus cogens norm. Relating to the aspect necessary for a norm to become jus cogens there is not enough recognition for the prohibition of gender discrimination. The analysis shows how perspectives and stereotypes regarding women are unchanging creating challenges for it achieving status as jus cogens.