A breakdown of CEDAW

The contemporary world has experienced a dramatic expansion in the spectrum of human rights. Today there is a proliferation of legislation and initiatives directed to supplement inter alia the rights of prisoners, political dissidents, and ethnic minorities. Yet there is a disparity in the imposition of rights-led standards, resolutions and sanctions in the areas aforementioned and gender discrimination. Until the past 15years, the relative global response to gender discrimination has been abysmal, adversely affecting the socio-economic and political life of a substantial half of the world’s population.

CEDAW (1979) is an international legally binding treaty which is designed to prohibit ‘all forms’ of discrimination against women. It supplements the existing human rights treaties.[1] Whilst the latter Conventions contain general provisions on gender equality, CEDAW espouses the realisation of women’s rights by articulating the specific issues that women face.

The CEDAW Committee of 23 experts perform 3 functions: a) monitor state’s obligations by reviewing periodic reports submitted by the state and issuing concluding comments, b) issue general recommendations, c) hear cases concerning violations of CEDAW and give recommendatory views.[2] The most significant function of the Committee’s work is commenting on the periodic reports submitted to them by states. This is complemented by the judicial capacity accorded to it by the CEDAW Optional Protocol. The crux of this section of the essay will thus evaluate the latter two.

Compliance and Utility of Concluding Comments

Taking the example of comments issued to Cuba in 2006, [3] we see comments such as: ‘The Committee is concerned that…’[4], ‘The Committee encourages state parties…’ [5], ‘The Committee urges the State party…’[6]

There are a few trends worth discussing. First, it is apparent here in the language of the excerpt that the Committee only plays an advisory role. It does not effectuate compliance nor impose a sanction for non-compliance. The decision to undertake these obligations seems at best voluntary.

Second, one can argue that compliance may arise through public disclosure of this report. One cannot underestimate the significance of international public opinion. The expansion in inter-regional and inter-continental communication can give rise to public outrage against the actions and omissions of a particular state. Therefore, using the power of naming-and-shaming, individuals and organisations can pressure a state to correct alleged violations.[7]

But the difficulty in soliciting public response towards these concluding comments lies in the neutrality and prosaic of its language. It does not retain the same sensational stance that other reports from advocacy organisations possess. Moreover, the actions and omissions of a state highlighted in the comments may not be gross enough to attract enough public disapproval to urge corrective measures.

Thirdly, the concluding comments do not address the conduct of non-state actors who may, in deregulated states, have prominent influence over the realisation of women’s rights. Some countries de facto have other political arrangements and styles of governance, whether formal or informal, direct or indirect. The Committee does not address in its comments acts and omissions by informal power holders who have effective control over areas involving women’s rights; this could be a business organisation, a private individual, a tribal court or a warlord. The concluding comments will not urge compliance if it does not question the conduct of relevant actors.[8] James Nickel rightly says, ‘..the emphasis on duties connected with rights is that it moves the debate in the direction of implementation, towards the question of who has to do what if these rights are to be realised.’[9]

Lastly, taking the example below:

18. The Committee calls upon the State party to strengthen its efforts to combat the widespread acceptance of stereotypical roles of men and women, including through awareness-raising in the media and public education programmes so as to ensure the elimination of stereotypes…

The equivalent of this comment can be found in the concluding comments for other countries.[10]

These comments are not specific enough to provide a guide-line or benchmark to direct or measure compliance. Taking the above example, neither does it for instance: a) identify which stereotypes in that particular state amount to a breach of the Convention right (as stereotypes vary with culture and religious practices), b) identify the inadequacy in current state-efforts to combat stereotypes, c) explore the types of efforts the State can further undertake, d) provide standard indicators[11] for ex ante and ex post impact assessments. Or provide standard multivariate quantitative and qualitative analytical techniques to determine what state action or omission is either attributed to or has contributed to a violation or materialisation of a particular right.[12] This is important because the only means to monitor state progress w.r.t these rights is through government reports. Without standard measurement indicators, states may use lax evaluative measures of their progress to suppress undesirable information. Specificity and direction as to what states should do can only increase the utility of the concluding comments. [13] If not, the Convention is deprived of any meaningful content.

The same remarks can be made about the Committee’s concluding comments to Guatemala. Take for example:

26. The Committee recommends gender-sensitivity training on violence against women for public officials…so as to ensure that they are sensitised…[14]

How will the Committee evaluate the training given to public officials, to ensure that it fulfils the Convention rights? Are the measures adequate, appropriate and sustainable? How will the Committee police this?

We should appreciate that the Committee must give some degree of flexibility to the executive when making decisions that involve the allocation of resources. The Committee must simply respect national sovereignty of its signatories. Moreover it does not have the authority, knowledge, and experience to decide for a country ‘how’ and ‘what’ should be done to address women’s rights violations within the country’s limited resources. This makes calls for more specific comments (mentioned above) that compel compliance perhaps less warranted. Inevitably, it stands as a genuine obstacle that hinders the enforcement of women’s rights.

The advent of the Optional Protocol in 2000, however, has placed women’s rights on more equal footing in the international scene and has increased the legal authority of the Committee’s comments. The Optional Protocol introduces a mechanism for individual complaints and an investigative mechanism into grave and systematic violations of women’s rights. Despite this, the potential impact of the Convention’s enforceability depends on many factors inter alia a) amount of funding and personnel given to the Committee, b) awareness of this tool by women and women groups, c) ratification by states, d) the ease of satisfying procedural requisites in order to use this tool and finally, e) media coverage given to the cases that come before the Committee.

Natasha Latiff (2008)

[1] The Universal Declaration of Human Rights states that all rights and freedoms set forth in it are to be enjoyed by all without any distinction on grounds including gender.

Articles 2, 26 and 23 of the International Covenant on Civil and Political Rights and Articles 3, 7 and 10 of the International Covenant on Economic, Social and Cultural Rights also espouses gender equality.

[2] International Women’s Rights Action Watch Asia Pacific, ‘About CEDAW Committee’ (Feb 2005)

http://www.iwraw-ap.org/committee.htm accessed on 20th April 2008

[3] Concluding Comments of the Committee on the Elimination of Discrimination Against Women

Cuba, 36th session, 25th August 2006 (5th and 6th periodic reports), CEDAW/C/CUB/CO/6

http://www.un.org/womenwatch/daw/cedaw/cedaw36/cc/cuba/0647852E.pdf accessed on the 20th of April 2008

[4] CEDAW/C/CUB/CO/6 Pt. 11. The Committee is concerned that, although articles 41 and 42 of the Constitution stipulate that all citizens have equal rights and that discrimination on the basis of sex is prohibited…

[5] CEDAW/C/CUB/CO/6 Pt. 12. The Committee encourages the State party to incorporate fully the definition of discrimination…

[6] CEDAW/C/CUB/CO/6 Pt. 14. The Committee urges the State party to amend the legislation pertaining to the age of marriage…

[7] Roth .K ‘Defending Economic, Social, and Cultural Rights: Practical Issues Faced by an International Human Rights Organisation’ (2004) 26 Human Rights Quaterly 63 p.67

[8] The very terms of CEDAW refer to women’s rights violations by non-state actors.

[9] Nickel .J ‘How Human Rights Generate Duties to Protect and Provide’ (1993) 15 Human Rights Quarterly 77, p.80

[10] For instance :

a) No. 14 Concluding Comments of the Committee on the Elimination of Discrimination Against Women: Czech Republic, 36th session, 25th August 2006 (3rd periodic report) CEDAW/C/CZE/CO/3 http://daccessdds.un.org/doc/UNDOC/GEN/N06/480/60/PDF/N0648060.pdf?OpenElement accessed on 17th April 2008

b) No. 18 Concluding Comments of the Committee on the Elimination of Discrimination Against Women : China, 36th session, 25th August 2006 (5th and 6th periodic reports) CEDAW/C/C/CHN/CO/6 http://www.un.org/womenwatch/daw/cedaw/cedaw36/cc/CHINA_advance%20unedited.pdf accessed on 17th April 2008

[11] Like for instance in the Human Development Index and Reports

[12] Landman .T ‘Studying Human Rights’ (2006) p.127-130

[13] Some of these remarks also apply to other concluding comments though not to all.

[14] Concluding Comments of the Committee on the Elimination of Discrimination Against Women Guatemala, 35th session, 2nd June 2006 (6th periodic report), CEDAW/C/GUA/CO/6

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