REPORT ON THE RIGHTS OF WOMEN IN CHILE: EQUALITY IN THE FAMILY, LABOR AND POLITICAL SPHERES

I.          EXECUTIVE SUMMARY

1.        This report describes the principal findings and conclusions that the Inter-American Commission on Human Rights (hereinafter "the Commission" or "the IACHR") reached when it examined Chilean women’s rights to equality and nondiscrimination and the measures that the State is taking to ensure the free and full exercise of those rights. The analysis also features the findings of the working visit that Commission member Víctor Abramovich made to Chile from September 11 through 14, 2007, in his capacity as the IACHR’s Rapporteur on Women’s Rights (hereinafter "the Rapporteur" or "the IACHR Rapporteur").

2.        The visit was undertaken at the invitation of the current Administration of Michelle Bachelet, the first woman to be elected president in Chile. The main objective of the visit was to assess the legislative and institutional efforts and the development and implementation of initiatives aimed at guaranteeing women’s rights, while promoting gender equality. 

3.        During the visit, the delegation headed by Dr. Abramovich met with Chilean Government officials and with representatives from the justice system, civil society, the academic sector and international organizations to discuss the issues of equality and nondiscrimination. It also gathered information on the protection of women’s right to equality in Chile and examined the various types of discrimination that Chilean women encounter.  Working from a human rights perspective, the IACHR Rapporteurship examined the discrimination that women experience in the family, in participation in government and in the workforce in Chile, and the links between these forms of discrimination.  

4.        In her public addresses, President Bachelet has acknowledged that Chilean women face various structural forms of discrimination in the family, political, and labor spheres. She has also maintained that in order for Chile’s economic, social, and political development to be fully realized, all barriers obstructing women’s enjoyment of true equality will have to be eradicated. In her first message to Congress, the President stated the following:

In an inclusive country, women must be able to exercise the rights of citizenship in the very fullest sense of the word.  For Chile, episodes of discrimination and segregation are still a daily experience.  My government’s support for the effective exercise of women’s rights will be unwavering (…)  Our plan is to eliminate the discriminatory practices that obstruct women’s introduction into the workforce; to promote equal pay for work of equal merit; to correct any discriminatory treatment in health insurance and social security; and to fight tirelessly to end domestic violence.

Two things are equally certain.  Women have the capacity to move forward.  But they also need greater opportunities in order to make themselves part of the modern world.  We will preach by example.  A parity government is where the road starts, not where it ends.

Chile will be a more developed, a more just and a more democratic country when the powerful barriers to women’s integration in the workforce, culture, the economy and public life become a thing of the past.  Without women’s active involvement, we will never defeat poverty and never be a more competitive country.[1]

5.        In this regard the Chilean government has recognized before the Commission that forms of discrimination persist that, either by design or by effect, adversely affect the rights of women in Chile.  A case in point is that of Sonia Arce Esparza, in which the parties signed a friendly settlement agreement during the Commission’s 127^th regular session.  In that case, the petitioners had alleged that the current system of conjugal partnership established by Chile’s Civil Code is in violation of the women’s rights vis-à-vis the administration of the community of property within marriage.  In signing the friendly settlement agreement, the Chilean State pledged to strike down the provisions that discriminate against women in the conjugal partnership system, and to make the bill intended to reform that system a matter of “urgency.” 

6.        Within this framework and based on the visit’s findings, the Commission recognizes as a significant advance the public discourse and the initiatives launched by the present government to advance the protection of women’s rights in the country, in the family, political, labor and social spheres.  The Rapporteurship found that the present Government of Chile is embarking upon a set of initiatives –among them a number of bills to promote women’s equality in various areas such as the family context and the administration of justice in violence against women cases- that puts this issue high on the government agenda.  Salient among them is the bill to enhance the legislation on domestic violence and another to correct the current overload in the family courts.  The Commission appreciates the government’s recognition of the way in which the existing conjugal partnership system discriminates against women and recognizes its decision to make the legislative bill intended to reformulate the system a matter of urgent priority.

7.        In the political realm, the Commission applauds the efforts made by the Administration of President Michelle Bachelet to promote parity as a State policy and to support initiatives to heighten women’s profile in the country’s political affairs.  For the first time in Chile’s history, a woman was elected President and approximately 40% of the Chilean cabinet has been composed of women.

8.        On the other hand, in the labor context the Commission recognizes the State’s efforts to encourage women to enter the labor market by creating and promoting the use of nurseries.  According to the government, in just two years the number of nurseries has tripled.  They are now caring for 40% of the children from Chile’s low-income families.  The Commission supports this state initiative, which makes it easier for women to enter the labor market, especially women of more modest means. 

9.        Notwithstanding the above-mentioned progress, the IACHR is disturbed by the persistence of the various forms of discrimination in law and in practice that Chilean women experience in the family, political and labor spheres.

10.      The Commission verified during the visit that the proposed advances are encumbered by such factors as the slow pace at which State measures are approved, especially in the case of the legislative bills intended to promote women’s equality in various areas.  As this report will explain, these encumbrances expose certain forms of discrimination against women that society still tolerates and that accentuate the structural inequities in the home, in political life and on the job.  The Commission underscores the need for the executive and legislative branches to work together to get the bills passed and the laws put into effect.  It is also imperative that the state couple passage of these bills with effective implementation measures, including multi-sector, prevention-oriented public policies, pertinent regulations, earmarking of sufficient resources to implement them properly, and instruction and sensitivity training for public officials. 

11.      The Commission is also concerned with the link between Chilean women’s unequal status in the family and their limited participation in the country’s political life and labor force, caused by the stereotyped notions of their role in society as wives and mothers.  Society still expects women to bear the bulk of the responsibility for raising children and homemaking.  This limits the options that women have to enter and move up in the work force and in political life.  It also does nothing to contribute to an equitable distribution of responsibility between husband and wife.

12.      In the family sphere, the Commission verified that the existing legal framework still perpetuates different forms of discrimination against women.  Even though the legal framework recognizes that in a family, a man and a woman have the same rights and obligations, laws are still on the books that discriminate against women, both in letter and in practice.

13.      Furthermore, the Commission received alarming reports on the prevalence of domestic violence, as a grave manifestation of the discrimination practiced against women.  The State acknowledges that domestic violence includes sexual, psychological and physical violence.[2]   Various state and non-state sources, such as the National Service for Women [Servicio Nacional de la Mujer] (hereinafter "SERNAM")[3] and civil society organizations[4] confirmed that in Chile, a woman dies every week at the hands of her partner. The severity and magnitude of the problem of domestic violence against women is also reflected in the number of complaints filed with the Chilean justice system, and the fact that the majority of the complaints are brought by women.[5]  The Commission notes with concern that the heavy incidence of domestic violence is taking a toll in the form of women’s under-representation in the workforce, as domestic violence committed by husbands or partners can cause women to either turn down or quit a job.[6]

14.      The Commission is also troubled by the gap between the severity and magnitude of the acts of discrimination and violence committed against Chilean women at home and the quality of the response they obtain from the justice system.  During its visit, the IACHR Rapporteurship received information confirming the fact that the family courts are severely overburdened with work.  It was also told of more general problems with the way the family courts operate, causing delays in the hearing of cases and petitions seeking precautionary measures against imminent acts of violence.[7]  In the area of criminal law, only a small percentage of cases of violence against women goes to trial, and an even smaller percentage result in the assailant’s conviction.[8]  Such problems leave victims defenseless against the violence they suffer.  They also cause the public to lose confidence in the courts’ ability to administer justice.

15.      In the political sphere, despite the current government’s efforts to increase the number of women in executive branch posts, the Commission is troubled by the fact that women are under-represented in the other branches of government.  Also troubling is the fact that the adoption of medium- and long-term measures to guarantee women’s effective and sustainable participation in all sectors of government has been slow in coming. The under-representation of women stands in striking contrast to the high levels of socioeconomic and human development that the country has enjoyed in recent decades.  The election of a woman to the office of president is an important first step down the road to equality between the sexes in Chilean political life. 

16.      In contrast to the efforts to achieve parity in the executive branch, women continue to be glaringly under-represented in popularly elected office.  This sub representation is particularly obvious in the legislative branch, where the percentage of women in congressional seats is below the world average and the average for the Americas.[9]  Entities such as the Regional Feminist Network for Human Rights,[10] the Latin American Faculty for Social Sciences (hereinafter "FLACSO-Chile"), and the IDEAS Foundation concur that three factors explain this phenomenon of under-representation in Chile, namely:  the binominal electoral system’s adverse effect on women’s chances of participating in politics; the closed, tradition-driven way in which the political parties operate; and the absence of affirmative action measures to improve women’s access to seats in political power, particularly in Congress.[11]

17.      The Commission is particularly concerned with the fact that despite women’s obvious under-representation in certain sectors of government and in the public administration, no special affirmative action measures are in place to ensure that women have the opportunity to gain access to and participate in the executive, legislative and judicial branches.  Various sources told the Commission that affirmative action measures are viewed unfavorably in Chilean society and that the social and political resistance to initiatives of this type is considerable.  The Commission appreciates the current government’s preliminary efforts to set minimum requirements and to create financial incentives to open up women’s participation in the country’s political life.  The Commission, however, must also underscore how vital it is that these measures materialize in the form of laws and norms, which must then be coupled with effective implementation mechanisms enabling women to move beyond the still relatively low percentages of their participation in political affairs.

18.      In the labor sphere, the Commission notes that in Chile a combination of factors conspire to make it difficult for women to enter the job market which go beyond the issue of childcare.  The social concept of family relations –dictated by a discriminatory model- lays the bulk of the responsibility for caring for the household and the family squarely on the shoulders of women, thereby curtailing their chances to enter the job market and public life.  The result has been a lack of equality and an uneven distribution of remunerated and unremunerated work between women and men. The notion that women’s place is in the home has also had the effect of concealing or suppressing their talents for exercising power, which in turn serves to perpetuate their inequality in the workplace and in political life.  The Commission considers necessary that efforts are made to promote an even sharing of responsibility between women and men, in the public and private spheres.  This will make it easier for women to join the labor market.  Special attention must be devoted to encouraging men to take a more active role in unpaid domestic activities.

19.      The Commission observes with concern that women represent a much smaller percentage of the workforce than the average for Latin America as a whole, a disturbing fact when one considers the country’s high level of economic development and the modernization that the country has been undergoing in recent years.  The Commission also notes that Chilean women are achieving a high level of education, higher even than men, yet this is not translating into jobs involving greater responsibility or better pay.  The Commission finds that the wage gap separating men and women performing the same jobs in Chile is truly alarming; the more responsibility a position involves, the more pronounced the salary gap.

20.      As for social security, the Commission appreciates the Government’s efforts to reform the social security system by creating a basic solidarity pension (Pension Básica Solidaria – PBS), as these reforms could be very positive for women’s economic and social rights.  The PBS builds upon the individual capitalization system and introduces a system of guaranteed basic pensions that will cover men and women who, although over the age of 65 and past retirement, have not managed to build up a pension. Those who have made contributions to their individual accounts but have not accumulated enough to receive a minimum basic pension will receive a solidarity-based pension supplemental contribution in the same amount.

21.      With the analysis of this report and the recommendations it contains, the Commission hopes to assist the government with its efforts to make women’s equality a matter of law and public policy and to develop effective and sustainable implementation mechanisms that have a positive impact on the daily life of all Chilean women. 

22.      The visit made to Chile is part of a project being conducted with financial support from the Government of Finland.  Its purpose is to examine discrimination as one of the basic barriers that women encounter in getting their rights effectively protected and ensured.  The analysis done in this report couples the information compiled during the visit with the work the Commission has done to advance the protection of women’s rights, which includes jurisprudence, thematic hearings held at headquarters, thematic reports, country reports with chapters devoted to women, and in loco visits organized by the Commission and by the IACHR Rapporteurship.  

II.          INTRODUCTION

23.      The analysis and the recommendations contained in this report are based, first and foremost, on the regional human rights obligations voluntarily undertaken by the Chilean State, mainly:  the American Convention on Human Rights (hereinafter the "American Convention"), ratified by the State of Chile on August 21, 1990, and the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (hereinafter the "Convention of Belém do Pará"), ratified by the State of Chile on November 15, 1996.  Chile is also a state party to the Convention on All Forms of Discrimination against Women (hereinafter "CEDAW").[12]   Its obligations under international law require that the Chilean state act with due diligence in preventing, eradicating and punishing discrimination against women, in all its manifestations, and that it promotes women’s equality in every walk of life.

24.      The draft of the report "Report on the Rights of Women in Chile: Equality in the Family, Labor and Political Spheres", was approved by the IACHR on December 26, 2008.  According to article 58 of the Rules of Procedure of the Inter-American Commission on Human Rights, such document was forwarded to the Chilean State on December 30, 2008, with the request to submit the observations it considered pertinent within a one-month period.  The State of Chile presented its observations on February 20, 2009.  The observations were studied by the IACHR and incorporated as pertinent, in the final version of the present report.  The Commission approved the final version of the present report on March 27, 2009.

25.      The report is organized in three parts and includes a diagnostic study on the protection of women’s right to equality within the family, in political participation and in the job market in Chile.  It ends with a series of conclusions and recommendations addressed to the state and intended to narrow the existing gap between legislative and institutional efforts to protect women’s right to equality on the one hand, and the discrimination in law and in practice that still endures.

A.         The working visit to Chile

26.      Heading the Commission’s delegation was Commissioner Víctor Abramovich, as Rapporteur on the Rights of Women.  During the visit, Commissioner Abramovich and his delegation met with government officials, officials from the justice system, representatives from the academic sector, international agencies and civil society.  It also met with the following officials:  the Minister Secretary General of the Office of the Presidency, José Antonio Viera-Gallo; the Chief Justice of the Supreme Court, Enrique Tapia; the Acting Minister of the National Women’s Service (SERNAM), Carmen Andrade; the Under Secretary for Foreign Affairs, Albert van Klaveren; the Under Secretary of the Police Force (Carabineros), Javiera Blanco; and specialists from the Ministry of Justice.  The IACHR Rapporteurship also held meetings with officials of international agencies like the Office of the United Nations High Commissioner for Human Rights and the United Nations Economic Commission for Latin America and the Caribbean (ECLAC).

27.      The Delegation also held fruitful meetings with civil society organizations like the Centro Regional de Derechos Humanos y Justicia de Género (Humanas) [Regional Center for Human Rights and Gender Justice], Amnesty International, the Agrupación Nacional de Empleados Fiscales de Chile / Central Unitaria de Trabajadores [National Coalition of Chilean Civil Servants/Confederation of Labor] (ANEF/CUT), Asociación Nacional de Mujeres Rurales e Indígenas [ National Association of Rural and Indigenous Women] (ANAMURI), Centro de Estudios de la Mujer [Women’s Studies Center] (CEM), Colegio de Enfermeras [Nursing School], Corporación Participa [Corporation Participa], Red Chilena contra la Violencia Doméstica y Sexual [Chilean Network against Domestic and Sexual Violence], the Latin American and Caribbean Women’s Health Network (LACWHN), and with Janette Cano, a specialist in the rights of indigenous women.

28.      The Delegation met with the Executive Director of the Fundación Chile 21, María de los Ángeles Fernández, and with Paulina Veloso, former Minister of the General Secretariat of the Office of the President.  It held working meetings with academics as well, among them Cecilia Medina, José Zalaquett and Verónica Undurraga from the Human Rights Center of the University of Chile’s Law School, and with Lidia Casas, Ester Valenzuela, Macarena Vargas, Francisco Herane and María José Armasen from the School of Law of the Universidad Diego Portales. The Commission is particularly grateful to the officials of both universities for their collaboration and support during the Rapporteurship’s working visit.

29.      The IACHR Rapporteurship is grateful for the cooperation that the Chilean Government provided in planning and executing the program of activities.  It is also grateful to the Government of Finland for the financial contribution that made the visit possible.  The IACHR Rapporteurship would like to extend a special word of thanks to the civil society organizations, academic sectors and international organizations for the information and cooperation they shared.

III.         LEGAL FRAMEWORK OF THE REPORT

A.         International Norms and Standards Relevant to the Principle of Equality and Non-discrimination

30.      International law has established the obligation of States to guarantee women’s free and full exercise of their human rights as equals and without discrimination of any kind.  The binding principles of equality and non-discrimination are axioms of the inter-American system of human rights, as are its binding instruments, which include the American Convention and the Convention of Belém do Pará, to which Chile is party.  This obligation and the priority that the IACHR and its Rapporteurship on the Women’s Rights attach to it mirror the importance that the member states themselves ascribe to these principles.   

31.      The principles of equality and non-discrimination have been established in inter-American instruments ratified by the State of Chile, as well as the jurisprudence of the inter-American system of human rights.

32.      Article 1(1) of the American Convention provides that States Parties to the Convention undertake to respect the rights and freedoms recognized in the Convention without any discrimination on the basis of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth or any other social condition.  Furthermore and in complement to the principle of non-discrimination, Article 24 recognizes the right to equal protection of the law and before the law.  

33.      The principal objectives of the regional human rights system and the principle of efficacy demand that those guarantees materialize and require that they be implemented.  Therefore, where the exercise of these rights is not guaranteed de facto and de jure within their jurisdiction, in Article 2 of the American Convention the States parties undertake to adopt such legislative or other measures as may be necessary to give effect to those rights.  Further, the American Convention requires that the domestic system provide judicial remedies that are effective and accessible to those alleging violation of rights protected under domestic law or under the American Convention.  When such remedies are neither effective nor available at the domestic level, the inter-American system provides an alternative in the form of the individual petition system.

34.      The Inter-American Court of Human Rights has established that there is an “inseparable connection” between the obligation to respect and guarantee human rights and the principle of equality and non-discrimination. [13]  In this sense, the Inter-American Court has established that the language contained in Article 24 of the American Convention on Human Rights reiterates in a specific way the general obligation to respect and guarantee the rights “without any discrimination”, and in accordance with the principle of equality before the law, all discriminatory treatment of legal origin is prohibited. [14]   

35.      The Inter-American Court has also defined the scope of Article 24, highlighting that the same “prohibits any type of discrimination, not only with regard to the rights embodied therein, but also with regard to all the laws that the State adopts and to their application.”[15]  In this sense, the Inter-American Court of Human Rights has established that Article 24 of the American Convention, interpreted in connection with the obligation contained in Articles 1(1) and 2 of the American Convention, establishes that the duty to guarantee “is not fulfilled merely by issuing laws and regulations that formally recognize these rights, but requires the State to adopt the necessary measures to guarantee their full exercise considering the weakness or helplessness of the members of certain social groups or sectors.”[16]

36.      Furthermore, the Inter-American Court has reiterated that the right to equal protection of the law and to be free from discrimination, which is an imperative right,[17] means that the States have the obligation to i) abstain from introducing in its legal framework discriminatory regulations in their face or in practice in different population groups, ii) eliminate regulations of a discriminatory nature, iii) combat discriminatory practices and iv) establish norms and adopt the measures necessary to recognize and guarantee the effective equality of all persons before the law.”[18]

37.      As well as the Inter-American Court, the Commission has developed the concepts of equality and non-discrimination as corollaries of the inter-American system of protection and the guarantee of human rights, in admissibility and merits reports as well as in thematic reports. 

38.      For example, in the case of Maria Eugenia Morales de Sierra[19], the IACHR found violations of Articles 1, 2, 17 and 24 of the American Convention given the fact that the provisions of Guatemala’s Civil Code on the subject of domestic relations vested certain responsibilities and obligations exclusively in the husband, by virtue of his role as income earner, while others were vested exclusively in the wife, by virtue of her role as wife, mother and homemaker.  The Commission concluded that far from ensuring the “equality of rights and adequate balancing of responsibilities” within marriage, the cited provisions institutionalized imbalances in the rights and duties of the spouses.[20]  The Commission wrote that the articles of the Civil Code at issue in that case: 

have a continuous and direct effect on the victim in this case, in contravening her right to equal protection and to be free from discrimination, in failing to provide protections to ensure that her rights and responsibilities in marriage are equal to and balanced with those of her spouse, and in failing to uphold her right to respect for her dignity and private life.[21] 

39.      In this case, the Commission expressed its concern over the serious toll taken by discrimination against women and the “stereotyped notions of the roles of women and men,” which includes the relationship between that discrimination and the persistence of violence against women.  The Commission was of the view that the provisions of Guatemala’s Civil Code applied stereotyped notions of the role that women and men play, thus perpetuating de facto discrimination against women in the family sphere.[22]  The Commission therefore held that the use of “stereotyped notions of the roles of women and men” is not an appropriate criterion to ensure equality and an adequate balancing of men’s and women’s rights and responsibilities in the family sphere. 

40.      The IACHR also recognized the link between discrimination and violence against women in the case of Maria da Penha Fernandes against Brasil.[23]  In its decision, the IACHR found the existence of a general pattern of state tolerance and judicial inefficacy in cases of domestic violence.  The Commission held that this case involved not just a failure to fulfill the obligation to prosecute and convict, but also the obligation to prevent these degrading practices.[24]  In this case, the IACHR reaffirmed the links between violence against women, the inefficiency of the Brazilian judicial system, the inadequate application of national and international rules, and discrimination.  The Commission cited its own Special Report on Brazil, prepared in 1997, and observed that “there was clear discrimination against women who were attacked, resulting from the inefficiency of the Brazilian judicial system and inadequate application of national and international rules.”[25]  In this case, the Commission also established that the generalized pattern of tolerance by the State organs “serves to perpetuate the psychological, social, and historical roots and factors that sustain and encourage violence against women.”[26] 

41.      In addition to the American Convention, the Convention of Belém do Pará, which Chile ratified on October 24, 1996, is particularly relevant to this report and to the principles of equality and non-discrimination.  This Convention reflects a concern, shared across the Hemisphere, about the seriousness and gravity of the long-standing problem of discrimination against women, how it relates to violence against women, and the need to adopt sweeping, public strategies to prevent, punish and eradicate it.  The following are among the most important principles that this Convention articulates:

-           The Convention expressly recognizes the relationship between gender-based violence and discrimination, and indicates that violence of that kind is a reflection of the historically unequal distribution of power between women and men, and that the right of every woman to a life free of violence includes the right to be free from all forms of discrimination and to be valued and educated free of stereotyped patterns of behavior;[27]

-           Under the Convention, “violence against women shall be understood as any act or conduct, based on gender, which causes death or physical, sexual or psychological harm or suffering to women, whether in the public or the private sphere”;[28]

-           The Convention provides that violence affects women in multiple ways, obstructing their exercise of other fundamental civil and political rights, and their exercise of economic, social and cultural rights;[29]

-           It also provides that State parties must act with due diligence to prevent, investigate and punish discrimination and violence against women that occur in the public and private arena, and is perpetrated by individuals or state agents;[30]

-           Under the Convention, State Parties are to take special account of the vulnerability of women to violence by reason of, among others, their race or ethnic background or their status as migrants, refugees or displaced persons.  Similar consideration is to be given to women subjected to violence while pregnant or who are disabled, of minor age, elderly, socio-economically disadvantaged, affected by armed conflict or deprived of their freedom, among other risk factors.[31]

42.      Moreover, as part of the due diligence obligation, the Convention of Belém do Pará requires that States take all appropriate measures, including legislative measures, to amend or repeal existing laws and regulations or to modify legal or customary practices that sustain the persistence and tolerance of violence against women.  The Commission has written that the States have an obligation to revise any laws, practices and/or public policies that discriminate against women or whose effect may be discriminatory against women.[32]

43.      The inter-American system thus recognizes that discrimination is a serious human rights problem that has negative consequences for women and for their community and that obstructs full recognition of women’s human rights and their exercise of those rights.  It also recognizes a close connection between discrimination against women and violence against women.

44.      The international case law has also established that the State has an obligation to act with due diligence in protecting human rights.  The duties this obligation implies are fourfold:  to prevent, investigate, punish and redress violations of human rights.[33]  In the case of human rights violations, impunity is “the failure to investigate, prosecute, take into custody, try and convict those responsible for violations of rights protected by the American Convention.” [34]  In such cases, the State has the obligation to use all the legal means at its disposal to combat that situation, since impunity fosters chronic recidivism of human rights violations and total defenselessness of victims and their relatives.”[35]  The inter-American human rights system has affirmed that States’ obligation to act with due diligence in cases involving violations of human rights extends to actions committed by non-state actors, third parties and private persons. [36]

45.      The Commission has also held that in cases of discrimination and violence against women, the right to an effective judicial recourse recognized in Article 25 of the American Convention, interpreted in combination with the obligations contained in Articles 1(1) and 8(1) thereof, must be understood as “the right of every individual to go to a tribunal when any of his rights has been violated (whether a right protected by the Convention, the constitution or the domestic laws of the State concerned), to obtain a judicial investigation conducted by a competent, impartial and independent tribunal that will establish whether or not a violation has taken place and will set, when appropriate, adequate compensation.”[37]  The IACHR has singled out the investigation as a critical phase in cases of discrimination and violence against women, and has said that “[t]he importance of due investigation cannot be overestimated, as deficiencies often prevent and/or obstruct further efforts to identify, prosecute and punish those responsible.”[38] 

46.      Chile is also a State Party to the Convention on the Elimination of All Forms of Discrimination against Women (hereinafter the "CEDAW"), which provides that the State and its agents have an obligation to act with due diligence to eliminate socio-cultural patterns and stereotypes that encourage discrimination against women, in all its forms. In its Article 1, CEDAW defines discrimination against women in broad terms as being:

(…) any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.

47.      The CEDAW definition of discrimination against women covers any gender-based difference in treatment that, whether by intent or in practice, places women at a disadvantage and prevents the full recognition of their human rights in public and in private life.  Hence, a seemingly neutral action or omission can, in practice, have a discriminatory effect or outcome.  The Committee on the Elimination of Discrimination against Women has held that the definition of discrimination described in the CEDAW also includes violence against women, in all its forms.[39]

48.      Under Article 4 of the CEDAW, adoption by States parties of temporary measures “aimed at accelerating de facto equality between men and women shall not be considered discrimination as defined in the present Convention, but shall in no way entail as a consequence the maintenance of unequal or separate standards; these measures shall be discontinued when the objectives of equality of opportunity and treatment have been achieved.”  

49.      The Committee on the Elimination of Discrimination against Women has provided an extensive definition of these measures, which include “a wide variety of legislative, executive, administrative and other regulatory instruments, policies and practices, such as outreach or support programs; allocation and/or reallocation of resources; preferential treatment; targeted recruitment, hiring and promotion; numerical goals connected with time frames, and quota systems.”[40]  For its part, the IACHR has established that temporary measures may be needed to achieve women’s true equality with men and that such measures are compliant with the principle of non-discrimination and human rights standards.[41]   

50.      CEDAW attaches special importance to gender equality in the exercise of rights in various areas, which include political life, family life and the workplace.  On women’s participation in political life, Article 7 of the Convention provides that “States Parties shall take all appropriate measures to eliminate discrimination against women in the political and public life of the country (…)” and reaffirms their right to vote, to have a hand in crafting government policy and to participate in the making of public policy and in nongovernmental organizations and associations, on equal terms with men, and in other areas of their country’s political and public life.[42]

51.      CEDAW furthermore spells out the measures that must be taken to achieve gender equality on the family front. Article 16 of the CEDAW provides that the States parties “shall ensure, on a basis of equality of men and women,” “the same rights and responsibilities with regard to guardianship, wardship, trusteeship and adoption of children”; the “same personal rights (…), including the right to choose a family name, a profession and an occupation”; and the “same rights (…) in respect of the ownership, acquisition, management, administration, enjoyment and disposition of property.”[43]

52.      On the employment front,[44] Article 11 of the CEDAW articulates the measures that must be taken to ensure gender equality with respect to the rights to work; to the same employment opportunities, including use of the same hiring selection criteria;  the right to promotion, to job stability, and to all benefits and conditions of service and the right to receive vocational training and retraining; the right to equal remuneration and to equal treatment in respect of work of equal value; the right to social security and the right to paid leave; the right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction. CEDAW also spells out a number of measures aimed at preventing discrimination against women in employment on the grounds of marriage or maternity.[45]

53.      To highlight the economic function that women perform, the Committee on the Elimination of Discrimination against Women recommended that the States adopt measures aimed at quantifying the unremunerated domestic activities of women and include them in the gross national product.[46]

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