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Sources of International Law Related to Sexual Harassment

The United Nations and regional treaty systems have recognized sexual harassment as a form of discrimination and violence against women. International statements of law and principle provide an important starting point in drafting legislation that prohibits sexual harassment.

United Nations
General Assembly Resolution 48/104 on the Declaration on the Elimination of Violence Against Women defines violence against women to include sexual harassment, which is prohibited at work, in educational institutions, and elsewhere (Art. 2(b)), and encourages development of penal, civil or other administrative sanctions, as well as preventative approaches to eliminate violence against women (Art. 4(d-f)). The Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) directs States Parties to take appropriate measures to eliminate discrimination against women in all fields, specifically including equality under law, in governance and politics, the workplace, education, healthcare, and in other areas of public and social life. (Arts. 7-16). Moreover, the Beijing Platform for Action, para. 178, recognizes sexual harassment as a form of violence against women and as a form of discrimination, and calls on multiple actors including government, employers, unions, and civil society to ensure that governments enact and enforce laws on sexual harassment and that employers develop anti-harassment policies and prevention strategies.


International Labour Organization (ILO)
The ILO Committee of Experts on the Application of Conventions and Recommendations has confirmed that sexual harassment is a form of sex discrimination covered by the Discrimination (Employment and Occupation) Convention (No. 111) of 1958. The ILO’s Indigenous and Tribal Peoples Convention (No. 169) also specifically prohibits sexual harassment in the workplace.


African Union & Subregional Bodies
The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa obligates State Parties to take appropriate measures to:

  • Eliminate all forms of discrimination against women and guarantee equal opportunity and access in the sphere of education and training;
  • Protect women from all forms of abuse (including sexual harassment);
  • Ensure transparency in recruitment, promotion and dismissal of women, and combat and punish sexual harassment in education and the workplace. (See: Articles 12-13)

Sub-regional bodies in Africa also have addressed sexual harassment. For example, the Southern African Development Community Protocol on Gender and Development, in article 22, requires that states parties by 2015 must:

enact legislative provisions, and adopt and implement policies, strategies, and programmes which define and prohibit sexual harassment in all spheres, and provide deterrent sanctions for perpetrators of sexual harassment.

The protocol has been signed by Angola, Democratic Republic of Congo, Lesotho, Madagascar, Mauritania, Mozambique, Namibia, South Africa, Swaziland, Tanzania, Zambia, and Zimbabwe. The Economic Community of West African States, which includes Benin, Burkina Faso, Cape Verde, Cote d’Ivoire, Gambia, Ghana, Guinea, Guinea Bissau, Liberia, Mali, Niger, Nigeria, Senegal, Sierra Leone, and Togo, also has put in place regional policy on sexual harassment in the workplace and in educational institutions. (See:Office of the Commissioner on Human Development and Gender)

Europe
The Charter of Fundamental Rights of the European Union specifically enshrines the right to be free from discrimination on the basis of sex, and Article 23 obligates states to ensure equality between men and women in all areas. This principle has been further elaborated through several directives dealing with sexual harassment, including Directive 2006/54/EC related to equal opportunities in employment and the Directive 2004/113/EC related to equal treatment in access to goods and services. These directives require member states to incorporate into national law the following principles:

  • The Charter of Fundamental Rights of the European Union prohibits discrimination on the grounds of sex and enshrines the right to equal treatment between men and women in all areas, including employment, work and pay, vocational training, and access to goods and services; 
  • Clarify that sexual harassment constitutes discrimination on the grounds of sex; 
  • Prohibition, at a minimum, of behavior meeting the Directives’ definition of sexual harassment in the workplace and in the provision of goods and services;
  • Encourage employers to take measures to combat all forms of sexual discrimination and prevent harassment in the workplace.

See: Prechal and Burri, EU Rules on Gender Equality: How are they transposed into national law? (2009).

The Council of Europe Convention on preventing and combating violence against women and domestic violence (the Istanbul Convention) is the first legally-binding instrument in Europe on violence against women and domestic violence. It obliges states to reform laws, implement practical measures to aid victims, and, importantly, allocate adequate resources for an effective response to violence against women and domestic violence. In addition states must involve all relevant actors in the implementation of the Istanbul Convention, including national parliaments and institutions and non-governmental and civil society organizations.

Article 40 states that “Parties shall take the necessary legislative or other measures to ensure that any form of unwanted verbal, non-verbal or physical conduct of a sexual nature with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating or offensive environment, is subject to criminal or other legal sanction.”

The Convention will enter into force once ten countries have ratified it. Eight of the ten ratifying countries must be Council of Europe member states. An ongoing list of signatures and ratifications can be found here. Available here in 28 languages.

 

Organization of American States
The Organization of American States treats sexual harassment as an issue of violence against women, instead of a discrimination issue. Accordingly, the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women (Belem do Para) affirms the right of women to be free from violence, including sexual harassment in employment or any other context, and requires states to impose penalties and enact legal provisions to protect women from harassment and other forms of violence. Article 2 states that sexual harassment in the workplace, educational setting, health facilities, or any other place constitutes violence against women.