An analysis of the cedaw
An Analysis of the CEDAW With special emphasis on the Complaint & Inquiry Procedure and the Optional Protocol
Beyond general human rights instruments, there are a few very important specialised treaties relating to equality and non-discrimination. The two instruments that come to mind foremost in this regard are the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD, 1966) and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW, 1979), also known as the Women's Convention. It is the latter that we shall concentrate upon in this paper.
CEDAW provides a broad definition of discrimination against women, illustrating the point made that international law often provides broader protections than domestic law. CEDAW expands the notion of equality for women beyond that currently embraced by most national laws. Under CEDAW, the term 'discrimination against women' shall mean 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. The treaty provides for women's rights in various arenas such as government and political life, education, employment health care, and other areas of social and economic life. It also provides for special protections for women such as "temporary special measures" to advance women and to protect maternity. At present, there are 186 member states and 98 signatories of CEDAW. Like all specialist treaties, the CEDAW is monitored by an expert committee namely Committee on the Elimination of All Forms of Discrimination against Women (hereinafter, the ‘Committee'.)
However, the main aim of CEDAW, i.e., revamping the weak mechanism for protection of human rights of womankind would have been hard to achieve without the elaboration of the Optional Protocol to the Convention. The shortcomings of CEDAW could only be rectified through the adoption of this Optional Protocol. Since 1997, the Committee has met twice a year (for a total of four weeks). An Optional Protocol was drafted in 1999 to provide a complaint process for individuals to petition the Committee regarding violations by states parties. The Optional Protocol entered into force in December of 2000. The Optional Protocol also gives the Committee the power to examine grave or systematic violations by a state party, including a visit to the state. However, the Committee must ‘invite' the cooperation of the state with the inquiry and the state party must consent to any visit. The inquiry must also be conducted confidentially. Although no reservations are allowed to the Optional Protocol, states can opt out of this inquiry procedure. Currently it has 79 signatories and 98 parties.
Now that we know a bit about the Optional Protocol, it is safe to say that it will be the Optional Protocol around which this paper will be built. The complaint mechanism for violation of women's rights under the CEDAW and the implementation of the same is largely directed by this Optional Protocol. The Committee plays an important part in this regard, also following the provisions of the Protocol. The Committee can transmit its ‘views' and ‘recommendations' to the parties concerned (Article 7(3)). It is thus this Optional Protocol and the complaint mechanisms that we have to analyze carefully in this paper if we are to achieve its aim, i.e., understanding how the internationally protected women's rights are to be claimed under CEDAW in case of their violation.
Nature And Scope Of The Paper
In the first chapter of this paper, we will look at the brief history of the CEDAW to understand the necessities of it being adopted, with a brief look at its important provisions. In the second chapter we are introduced to the Optional Protocol to the Convention, discuss its operation, highlight its prospects, and address its outstanding challenges in overcoming some of the weaknesses of the Convention. Picking up the cue from the discussion about provisions of the Optional Protocol, we will look at the complaint mechanism for violation of the provisions of CEDAW and how this mechanism is to be implemented. This is the main part of the paper and will be given greater attention. The working of the Committee will be also looked into here. In the third chapter, we embark on a critique of the Women's Convention, especially the challenges and hurdles facing it.
A Brief History Of Adoption Of The Cedaw
The Women's Convention has been referred to as the ‘definitive international legal instrument requiring respect for and observance of the human rights of women'. The understanding that existing international human rights laws were not effectively addressing the specific disadvantages and injustices faced by women led to the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) being adopted as an international convention in 1979 by the United Nations General Assembly. Described as an international bill of rights for women, it came into force on 3 September 1981. The United States is the only developed nation that has not ratified the CEDAW. Several countries have ratified the Convention subject to certain declarations, reservations and objections. As of now 186 countries have ratified or acceded to the Convention, giving it the highest membership of all of the U.N. human rights treaties.
The goal of the Convention is to go beyond existing human rights conventions, many of which nominally entitle the equal application of their respective human rights laws to men and women, so as to provide more focused protection of human rights for women. As the drafters of the Convention understood, systematic obstacles originating in the historic discrimination faced by women in all societies have inhibited the equal application of international human rights laws. Thus the essence of the Convention, as articulated in Article 1, is to focus on the elimination of such discrimination, in all its forms, that has either the “purpose” or “effect” of limiting women's full participation and development in their respective societies.
This expansive definition of discrimination is the cornerstone of the Convention. Building on the goal of eliminating discrimination in all its forms, the Convention both identifies various realms in which women face heightened levels of discrimination and proposes means by which discrimination in these realms can be overcome. Articles 2 through 16, the substantive provisions of the Convention, spell out measures and policies that countries “shall” undertake to achieve the goal of eliminating discrimination, which include embodying the principle of equality in constitutions or legislation, repealing discriminatory penal codes; adopting “temporary special measures” for women; ensuring equal access to education, employment, and health care; giving women the right to undertake financial and other transactions in their own name; and protecting the special needs of women in developing countries. In order to monitor compliance with these substantive obligations, the Convention establishes, via Article 17, a monitoring body, the Committee on the Elimination of Discrimination Against Women (CEDAW), whose task is to continually observe and direct State Parties' behavior and performance of their Convention obligations. The treaty operates in the context of progressive development. In addition to requiring States to make good faith efforts to eliminate all forms of discrimination against women, this idea further obligates States to only improve, and never diminish, existing women's rights.
The Convention further transcends the scope of other human rights treaties in its commitment to addressing discrimination by non-State actors, including any person, organization, or enterprise. In addition, the preamble of the Convention makes a commitment to supporting women's rights in the private spheres of women's lives. It states, “a change in the traditional role of men as well as the role of women in society and in the family is needed to achieve full equality.” In this regard, the Convention recognizes the influence of culture and tradition in restricting women's enjoyment of rights. Article 2 refers to “customs and practices which constitute discrimination”. Article 24 underscores Articles 2 and 3 by requiring State Parties “to adopt all necessary measures… aimed at achieving the full realization of the rights recognized in the present Convention.” Articles 2, 3, and 24 accordingly impose obligations of means to be pursued “without delay” toward the ultimate result. Article 5 calls on State Parties to modify social and cultural pattern to eliminate prejudices and stereotyping; and Article 9 requires State Parties to recognize a woman's nationality, regardless of the nationality of her husband, when protecting her rights. Article 11 prohibits dismissal from employment on grounds of marriage or maternity and calls for the provision of maternity leave and social services to enable parents to combine family obligations with employment and participation in public life. Article 16 covers equal rights and responsibilities in marital and familial relationships.
Not surprisingly, these are the provisions of the Convention (particularly Articles 2 and 16) that are the most contentious in terms of their interpretation and implementation by State Parties. These provisions reflect some of the essential dilemmas facing women's equality, including whether women can or should be viewed as equal to men, or whether their unique reproductive functions, marriage, and religious/cultural group membership support differential treatment. While the Women's Convention symbolizes an international consensus that women's equality need not be limited by these conditions, the numerous reservations and uneven adherence to the Convention has shown that symbolic measures cannot ensure equality for women.
The Optional Protocol And The Enforcement Mechanism Of Women's Rights Under It
Background Of The Optional Protocol
In response to the demands of international women's rights advocates to address the various problems with the enforcement of the Women's Convention, the forty-third session of the Commission on the Status of Women (CSW) adopted an Optional Protocol to the Women's Convention in March 1999. The Protocol is the product of several years of formal and informal discussions following the 1993 World Conference on Human Rights in Vienna and four years of formal drafting negotiations in the Open-Ended Working Group that met alongside the regular meetings of the CSW. The Open-Ended Working Group consisted of voluntary representatives from U.N. member States who wished to contribute to the development of the Protocol. The Protocol was adopted by the General Assembly in October 1999, and as of July 30, 2001, it has been ratified or acceded to by twenty-four State Parties; it is currently in operation in those States. Now we will look at the new procedures of the Protocol through which the complaint mechanism is enabled and women's rights protected.
The Communication Of Complaint
The communications procedure allows women within the jurisdiction of a State Party to bring a claim to CEDAW against their government for an alleged violation of the Convention.' Claims can include allegations of violations by the State of any obligation under the Women's Convention. The Protocol establishes explicit procedures for the Committee to inspect communications for relevance to the Convention, adherence to the procedural requirements of admissibility, and ultimate determination on the merits.
The communications procedure enhances the implementation of the Women's Convention and operates in a manner very similar to that of other related human rights instruments, including the complaints procedures of the Race Convention and the Optional Protocol to the Covenant on Civil and Political Rights. As these instruments have demonstrated, communications procedures contribute to more direct and timely enforcement of rights obligations and can provide specific redress for rights violations. Redress for individual claimants can range from payment of money damages or other forms of reparation by governments; review or repeal of offending laws; and adoption of measures to ensure that future violations of the Convention will be prevented.
CEDAW's role under the communications procedure includes the review of complaints by individuals or groups relating to alleged State violation of the Convention. Various provisions of the Protocol define CEDAW's review of communications. Article 4(2) sets out specific admissibility criteria to which a communication must conform before it can be reviewed on its merits by CEDAW. Like similar instruments, the communications procedure limits CEDAW from reviewing complaints that have not already attempted resolution through domestic channels. While this remains a default requirement in the Optional Protocol, the communications procedure does allow CEDAW to consider exceptions to this provision if it finds that "the application of such [domestic] remedies is unreasonably pro-longed or unlikely to bring effective relief." Further, the Protocol has empowered CEDAW to recommend that the relevant State Party take interim measures if CEDAW finds that the alleged violation can cause irreparable damage to the victim or victims of the violation.
Also, once CEDAW has completed its review of the communication based on input from all Parties involved it can, at its discretion, ask the relevant State Party to provide further information about the measures it has taken in response to CEDAW's final views and recommendations.
The Inquiry Procedure
The purpose of the inquiry procedure is to provide CEDAW with the power to investigate a situation in which it is clear that there are grave or systematic violations of the Convention within a State Party. The procedure-which could be used to address serious but isolated violations, such as a case of sati, or widespread violations, such as trafficking in women or violations of women's human rights in situations of armed conflict-allows for timely focus on particularly egregious or large-scale abuses of women's rights. The procedure is unique in that it goes beyond those in other human rights conventions that place constraints on who may initiate an inquiry. For example, the Race Convention requires such inquiries to be brought by another State. The Optional Protocol to the Women's Convention, on the other hand, places no restrictions on who may initiate a claim against a State Party. It only requires that the party initiating the inquiry offer relevant proof of the alleged violation.
An inquiry procedure enhances enforcement of the Women's Convention for several reasons. First, individual communications may fail to reflect the widespread and systematic nature of certain violations. This is especially important in the context of women's rights violations, many of which occur informally, based on unofficial cultural practices. Second, in situations of very serious or widespread violations, individuals or groups may face acute dangers of reprisal when attempting to submit communications. Again, women who witness or experience such violations often tend to lack the ability to act alone or take a public stand on such issues for fear of being shunned or punished by their communities or families. Third, the experience of the Committee Against Torture (CAT) suggests that an inquiry procedure allows an international body to address a broader range of issues than it is able to in the context of individual communications.
The experience of CAT demonstrates that an inquiry procedure provides the international monitoring body with an opportunity to recommend measures to combat the structural causes of violations. While an inquiry procedure currently exists under the Commission on the Status of Women (CSW), known as the CSW Communication Procedure, this mechanism has failed to establish itself as a robust and effective avenue for responding to allegations of serious violations of women's rights in individual countries. On the one hand, the procedure was designed as a petition procedure to provide the CSW with information to assist in policy formulation, not to highlight a State's inadequate implementation of the Women's Convention or provide redress for women facing immediate violations of their rights. Furthermore, the scrutiny of communications under the CSW's procedure is carried out by government representatives rather than by independent experts. As such, its members serve the political interests of their respective governments before the objectives of international women's rights law. Thus the CSW's procedure has proven to be an inappropriate forum for conducting meaningful inquiries into serious and systematic violations of women's rights.
CEDAW, on the other hand, reflects a body of experts that have pledged to serve the interests of the Women's Convention as their foremost responsibility. Like other treaty-based committees, its members must represent the Women's Convention not only to their respective governments, but to all governments who are parties to the Convention. Independent experts are of crucial importance to the objective and non-selective monitoring of human rights, which may be better accomplished under CEDAW than the CSW.
The Challenges That Face The Cedaw
Weak Enforcement Mechanisms
State Parties that have ratified the Women's Convention are bound by its terms. Prior to the adoption of the Optional Protocol, the Convention provided two procedures by which to monitor State Parties' compliance with the terms of the Convention. These included the interstate procedure and the reporting procedure, which together represented the only means of enforcing the obligations of the Convention upon State Parties.
The interstate procedure, set forth in Article 29, addresses the conflicting interpretations and applications of the Convention between State Parties. Disputes that arise out of such differing interpretations are first put to arbitration to negotiate a solution to the disputed interpretation. Barring a resolution within six months, the dispute can ultimately be sent to the International Court of Justice (ICJ) for a final decision. The value of this procedure is substantial, as the ruling of the ICJ has binding effect upon State Parties under international law. Yet there are several obstacles to the effective deployment of this mechanism of Convention enforcement. First, most State Parties have little incentive to initiate the interstate procedure.
The underlying principle of non-intervention in the internal affairs of States is an international norm that is strongly supported by most States. In this regard, States tend to be concerned with the retaliatory effect of any such intervention into another State's domestic application of the Convention, particularly as nearly every State is vulnerable to criticism of its domestic policies towards women. Second, the effectiveness of the interstate procedure is greatly hampered by the fact that any State can refuse to be held to the procedure. Article 29(2) of the Convention allows State Parties to declare upon ratification of the Convention that they are not bound by this interstate procedure. Finally, the practical force of the interstate procedure has not been tested, as no State Party has ever invoked the interstate procedure.
The State reporting mechanism, set forth in Article 18, previously represented the only effective means of monitoring State Parties' adherence to the Convention. The reporting mechanism operates like those of many other human rights treaties. It obliges State Parties to submit an initial report within one year of ratification of the Convention, followed by periodic reports at least once every four years. In general, the reports must include the steps the State Party has taken to integrate the Convention obligations into domestic laws and policies as well as identify difficulties the State has faced in upholding the Convention. These reports are submitted to CEDAW, which examines the report in the presence of the relevant State Party representatives and other interested parties. Article 17 of the Convention gives specific authority to CEDAW to review State Parties' reports and scrutinize their implementation and adherence to the Convention before the international community. Further, CEDAW may issue general recommendations regarding the nature and extent of State Parties' compliance with the Convention based on their reports. Within the context of its role in the reporting procedure, CEDAW is unable to place sanctions upon States for their non-compliance with the Convention. Nor can CEDAW engage in any form of arbitration between State Parties, or an individual and a State Party, regarding the interpretation or application of the Convention obligations.
The reporting process was structured to allow for constructive dialogue between State Parties and CEDAW regarding implementation of the Convention. This dialogue was aimed at achieving progressive implementation of the terms of the Convention based on each State Party's specific restraints and capabilities. The process by which reports are reviewed by CEDAW, in addition to the strong and growing presence of non-governmental organizations (NGOs) in the deliberative dialogue between State Parties and CEDAW, is said to represent a comprehensive approach to enforcing State Party compliance with the Convention.
As has become clear over time, however, neither of the Convention's original enforcement mechanisms has sufficed to achieve an effective vigilance over violations of the Convention.
Another hindrance to the Women's Convention is the expansive number of reservations that State Parties have made to their obligations. The Convention is among the most reserved of U.N. human rights instruments. Reservations are allowed by the Convention under Article 28, which permits ratification subject to reservations, provided that they are not ‘incompatible with the object and purpose of the present Convention. Yet the Convention provides no mechanism to determine whether a State Party violates the Article compatibility requirement. Nor does CEDAW have the authority to evaluate or limit reservations that violate the terms of Article 28. Further, unlike other similar U.N. human rights instruments, including the Convention on the Elimination of Racial Discrimination, there are no procedural limitations on making reservations.
The debates surrounding reservations to the Convention are closely related to the fundamental normative controversies that challenge the universal commitment to international women's rights. While State Parties may accept the "object and purpose" of the Convention, they often differ on how the "object and purpose" of the Convention should be achieved. Differing cultural and religious practices are often at the heart of this lack of consensus. For example, many reservations deal with the conflict between full equality rights and some interpretations of Islam that qualify the definition of sexual equality to something significantly less than the expansive notion of sexual equality embodied in the Convention. Other prominent reservations deal with national religious or customary laws that restrict women's inheritance and property rights; nationality laws that do not accord women the same rights as men to acquire, change or retain their nationality upon marriage and laws limiting women's economic opportunities, freedom of movement and choice of residence. Many of these reservations have been questioned in terms of their compatibility with the "object and purpose" of the Convention.
The issue of the debilitating effects of the numerous reservations to the Convention was raised by State Parties and put before the U.N. General Secretary in 1986. But because of the highly divisive views on the subject amongst State Parties, the issue has never been decisively resolved.
Drafters of the Women's Convention justified the liberal policy toward reservations as a means to maximize participation by States, as they anticipated the conflicting normative dilemmas that later did arise regarding specific provisions of the Convention. They endorsed the reservations provision as a means of highlighting those domestic practices that do not comply with the Convention and encouraged State Parties to explore how such practices can be reconciled with the object and purpose of the Convention. In this regard, CEDAW requires State Parties to address the subject of their reservations to the Convention in every report to the Committee. But with little other incentive to refrain from reserving, State Parties continue to use the reservations provision as a way to preserve the status quo rather than work towards the advancement of the goals of the Convention.
Both the weak enforcement mechanisms and the general acceptance of the numerous reservations to the fundamental obligations of the CEDAW indicate the larger lack of commitment to the basic norms and values that inform the international women's rights regime. Some have criticized the Convention as acting only as a symbolic commitment to these norms and values. Whether or not one accepts these critiques, it is undeniable that the challenges to achieving the Convention's goal of equality and non-discrimination go beyond the limited effectiveness of its original procedures even if these procedures were to work perfectly. Even if it is agreed that the principles and values that inform the Convention are fundamentally sound, something more is clearly needed to link these principles with the elimination of the concrete forms of discrimination still faced by women. Promoting these principles in various real-life contexts will be crucial to the Convention's long-term ability to improve the status of women in society.
Prior to the adoption of the Optional Protocol, the Convention offered no direct mechanism or incentive for States to reconcile their commitment to the norms and principles of the Convention with the conflicting norms rooted in domestic laws and practices. Yet the recent procedural innovations to the Convention embodied in the Optional Protocol which have been discussed in detail earlier have the potential to surmount this fundamental challenge, and it is absolutely necessary in the context of internationally protected women's rights that it can do so.