CEDAW and its implementation
Professor Giovanna Adinolfi- University of Milan
1.
Introduction
The Convention on the Elimination of all Forms of Discrimination against Women
(hereinafter “the Convention” or “CEDAW”) was negotiated under the aegis of the
United Nations with the aim of integrating the UN human rights system with an
instrument specifically designed to eradicate the disadvantages affecting one half of
the world population, women.
Notwithstanding the existence of universal treaties offering protection of civil and
political rights, as well as of economic, social, and cultural rights, to every individual
without distinction based on sex, in the 1970s it was commonly accepted that the
normative so far adopted was rather ineffective for the promotion of women’s rights.
It was maintained that the application of the International Covenant on Civil and
Political Rights (ICCPR) as well as of the International Covenant on Economic,
Social, and Cultural Rights (ICESCR) did not address in a significant way the de facto
discrimination endured by women, despite the obligation imposed upon state parties
to guarantee the codified rights and freedoms to both women and men (see ICCPR art.
2 para. 1 and ICESCR art. 2 para. 2). At the same time, the activities of existing UN
human rights mechanisms appeared not to deal properly with violations of the human
rights of women. The Human Rights Committee, monitoring the implementation of
the ICCPR, rarely examined the situation of women in the performance of its
functions. When it did, it was mainly to focus on the laws, rather than on the practices
and customs which were the main source of women’s discrimination. Similarly, the
Commission on the Status of Women (CSW), created in 1946 as an
intergovernamental sister organ of the Commission on Human Rights but specifically
concerned with the promotion of women’s issues, had proved to be lacking in the
means necessary to the attainment of the goal identified in art. 1 para. 3 of the UN
Charter, “to achieve international co-operation ... in promoting and encouraging
respect for human rights and for fundamental freedoms for all without distinction as to
... sex ...”.
The debate for the elaboration of the Convention started in the early 1970s, after the
adoption, in 1967, by the General Assembly of the Declaration on the Elimination of
Discrimination against Women. The Convention was presented for signing in 1980 at
the Copenhagen mid-term conference of the UN Decade for Women and entered into
force on September 3, 1981. As of September 2004, it has already been ratified by
178 states, being the second human rights treaty with the highest number of state
parties, the first being the Convention on the Rights of the Child. The enforcement
mechanisms provided by the Convention have been strengthened by the entry into
force, on December 22, 2000, of the Optional Protocol
2.
CEDAW substantive provisions
The Convention may be considered the most comprehensive normative instrument
concerning the promotion and protection of the human rights of women. Its main
purpose, as indicated in the final paragraph of the Preamble, is the elimination of
discrimination against women “in all its forms and manifestations” and its substantive
provisions are designed for the attainment of such a broad purpose.
Art. 1 provides a legal definition of “discrimination against women” (lacking in the
1967 Declaration), whose implications cannot be underestimated. Since the nature of
the author of the discriminatory measure is not specified, (contrary to the definition of
torture contained in art. 1 para. 1 of the 1984 Convention against Torture, according to
which the term “torture” means any act by which severe pain or suffering is inflicted
by, at the instigation of, or with the consent or acquiescence of a public official or
other person acting in an official capacity), the application of the Convention is
implicitly not limited to state action or behaviours of persons acting under the control
of the law, but it also extends to discriminations perpetuated in the private sphere by
private actors on women on a daily basis. Moreover, the definition makes reference to
the effect as well as to the purpose of actions which impair or nullify the recognition,
enjoyment, or exercise by women of human rights on a basis of equality with men.
Thus, attention is directed to the consequences of such actions as well as to the
intention underlying them.
As regards the substantive obligations imposed on state parties, they touch upon every
aspect of women’s lives and concern political rights (Part II, artt. 7 and 8), economic
and social rights (Part III) and civil rights (Part II, art. 9 and Part IV). Thus, the
Convention highlights the universality, indivisibility, and interrelationship of all
human rights of both men and of women. In fact, it is presumed that a greater
enjoyment of civil and political rights cannot be achieved without a real advancement
in the economic and social fields, an advancement which cannot but guarantee a more
extensive participation in the decision making process, both at a collective and
individual level.
As already mentioned, the comprehensiveness of the Convention also springs from
the consideration given to discriminations occurring not only in the public sphere but
also in the private life, in the family and social relationships of women. For this
reason, the Convention represents a step ahead with respect to the two International
Covenants of 1966, both of which are focused only with the relationships between
individuals and the state. Indeed, it is mainly objected that they do not take into
account that for most women indirect subjection to the state is mediated through direct
subjection to men and that cultural traditions and religious beliefs have played a part
in confining women to the private spheres of activity and in excluding them from
active participation in public life.
Quite differently, CEDAW is particularly concerned with discriminations suffered by
women in the private realm and addresses state parties to take appropriate actions in
order to eliminate them. As is wellknown, art. 2 is the general provision that applies
with respect to the rights recognized in artt. 5-16. It generally requires state parties not
only to ensure compliance by their organs with the Convention and to modify or
abolish existing laws and regulations, but also to take all appropriate measures to
effect the elimination of all forms of discriminations perpetuated by any person,
organization or enterprise and to modify or abolish customs and practices which
constitute discrimination against women; similarly, art. 5 para. 1 seeks to eliminate
prejudices, customs, and all other practices based on the idea of the inferiority or
superiority of either of the sex or on stereotyped roles for men and women. Following
the same approach, art. 16 gives special consideration to the discrimination of women
in all matters relating to marriage and family relations, ordering the states to sweep
away a large number of fundamental, traditional discriminations against, and forms
of, subordination of women.
One of the main shortcomings of the Convention is the absence in it of a norm
concerning violence against women, with the only exception of art. 6, on the
suppression of traffic in women and exploitation of female prostitution. The question
is not without significance if we also take into consideration the content of the
Convention against Torture, whose scope is limited to acts inflicting severe pain or
suffering which take place in the public realm. Although many women are victims of
torture in this “public” sense, by far the greatest violence against women occurs in the
“private” sphere. Despite this normative gap, the question has been raised in various
occasions during the review of periodic reports submitted by state parties under the
art. 18 procedure and has been the object of a general recommendation adopted in
1992 by the experts Committee responsible for the overview of the implementation of
the Convention. General R19 asserts that gender-based violence is a form of
discrimination that seriously impairs women’s abilities to enjoy rights and freedoms
on a basis of equality with men (para. 1); that violence against women in all its
manifestations not only violates the Convention but is also a human rights violation
that threatens the rights to life, to be free of torture, to liberty and security (para. 7);
finally, that States are responsible not only for violence against women perpetrated by
public agencies under the Convention, but also for private acts of gender-based
violence that are discriminatory or otherwise violate international human rights
principles (para. 9). (34)
Finally, looking at the kind of action requested by state parties, it may be assumed that
the Convention gives rise to three different kinds of obligations: to
ensure/accord/grant a particular right (e.g. art. 9 paras. 1 and 2), to undertake a
specific type of action (e.g. art. 2.a) and to take all appropriate measures to guarantee
equality between women and men (e.g. art. 12).
State parties enjoy a more or less wide margin of discretion in deciding the means to
ensure the implementation of these obligations: while the first two typologies are
quite immediate and leave to states a narrow margin of appreciation, the third one
comprises so called obligations “of result”. They require states only to achieve
specific targets and it makes more difficult to appreciate whether they have been
effectively implemented or not.
The flexible nature of obligations to take all appropriate measures leads to arguments
that they are largely a matter of self-regulation and self-judgement by state parties, so
that their implementation can hardly be ascertained recurring to whatever
international mechanisms. However, such a claim can be challenged. International and
national practice show many cases under which the violation of obligations of result
connected to the guarantee of economic, social, and cultural rights have been
recognized. Furthermore, in its General Comment 3 the Committee on Economic,
Social and Cultural Rights has expressed the view that, although the obligation to take
all appropriate steps under the Covenant may not require a state party to bring about
the full enjoyment of a guaranteed right immediately, a good faith implementation of
such an obligation means that some steps must be taken immediately and should be
“deliberate, concrete and targeted as clearly as possible towards meeting the
obligations recognized in the Covenant” (para. 2).
3.
The implementation of the Convention: the action by the Committee on
the Elimination of all Forms of Discrimination against Women
One of the major contributions of the Convention to women’s cause is the
establishment of an institutional machinery to monitor progress made in the
elimination of discrimination against women.
Article 17 provides for the establishment of the Committe on the Elimination of all
Forms of Discrimination against Women (hereinafter the Committee), composed of
twenty-three experts of high moral standing and competence in the fields covered by
the Convention. Serving in their personal capacity, they are elected by state parties for
a four-year term from among their nationals, giving consideration to criteria of
equitable geographic distribution and of representation of the different forms of
civilization as well as of the main legal systems.
According to the Convention, the main functions of the Committee are the review of
periodic reports submitted by state parties under art. 18 and the adoption of
suggestions and general reccomendations (art. 21 para.1). The entry into force of the
Optional Protocol has expanded considerably the Committee’s role. Indeed, it is now
empowered to examine complaints submitted by individuals claiming a State’s
responsibility for the violation of the Convention and to conduct general inquiries on
situations of grave or systematic violations of women’s rights.
Art. 18 obliges state parties to submit to the Secretary-General of the United Nations,
for consideration by the Committee, a report on the legislative, judicial, adminitrative
or other measures adopted to give effect to the Convention, as well as on factors and
difficulties affecting the degree of fulfillment of the assumed obligations. The reports
must be submitted within one year after the entry into force of the Convention for the
state concerned, thereafter at least every four years and whenever the Committee so
requests.
The procedure carried out before the Committee is quite similar to those followed by
the other UN human rights treaty bodies, but only in 1994 has the Committee decided
to formulate concluding comments on states’ reports (UN doc. A/49/38 para. 36). This
new practice responded to the aims of providing concrete suggestions for the
implementation of the Convention, ensuring greater transparency of the Committee
activities, and bringing its practice in line with other human rights treaty bodies. It
goes without saying that these comments have no binding character and their adoption
does not create any legal obligation upon the state concerned to review its strategies
for the elimination of discrimination against women. Neverthless, the whole
procedure before the Committee may favour a constructive dialogue with the state and
exercise a moral pressure for a change in domestic attitudes towards women.
In any case, the weakness of the efficacy of the reporting procedure is worsened by
some structural deficiencies in the organization of work of the Committee. First, the
Committee secretariat is not provided for by the Office of the High Commissioner for
Human Rights, serving all other UN human rights treaty bodies, but by the Division
for the Advancement of Women, only recently located in New York, within the
Centre for Social Development and Humanitarian Affairs. For a long time this
circumstance has been an impediment to the establishment of ties between the
Committee and other human rights treaty bodies and for a comprehensive inclusion of
women’s issues in the work of the UN system.
Secondly, the Convention establishes a specific limit to the Committee meeting time:
art. 20 provides that it meets annually for no more than two weeks. The growth in the
number of ratifications proved that an extension of that limit was appropriate in order
to give the Committee the time to adequately review the reports of an increasing
number of states. In 1995 state parties adopted an amendment to art. 20 according to
which the Committee should meet annually for a period fixed by the state parties and
approved by the General Assembly. Since the amendment has been accepted only by
a limited number of states and a two-thirds majority is needed for the its entry into
force, the General Assembly has decided that in the meantime the Committee meets
annually for two three-weeks sessions, each preceded by a one-week pre-sessional
working group encharged of the preliminary review of states’ reports.
In any case, the main shortcoming of the procedure is due to the reluctance of many
state parties to undergo the review by the Committee. Indeed, many states do not
fulfill their reporting obligations and some have even failed to submit the initial
report. Furthermore, the reports are mainly focused on the laws promoting equality
between the sexes and give only scarce consideration to their concrete impact or to
those customs and practices, particularly discriminatory against women, that are not
covered by the laws.
As for general reccomendations, until recently they have not proved to be an
instrument favouring the implementation of the Convention by state parties. The early
ones were short and focused mainly on limited matters, providing only some general
exhortation. Since 1992 the Committee started to pronunce itself on more general
issues with an indepth analysis of the relavant articles (see General Recommendations
no. 19 and 21, respectively on violence and on equality in marriage and family
relations). In 1997 the Committee decided to introduce a structured approach aiming
to improve the quality and quantity of inputs, using the expertise of both its members
and of external actors, including non-governmental organizations (NGOs). The main
result has been the adoption of three general recommendations on art. 7 (political and
public life), art. 12 (women and health), and art. 4, para. 1 (temporary special
measures) and the beginning of work on art. 2.
With the entry into force of the Optional Protocol the reporting mechanism provided
by the Convention has been integrated with an invidual complaint procedure and an
inquiry procedure, designed to give the Committee the power to exercise a stronger
pressure towards the state parties. In this regard, the Convention may be distinguished
by the other UN human rights treaties: as CEDAW, only the Convention against
Torture provides all three procedures; the ICCPR and the Convention against all
Forms of Racial Discrimination do not contain an inquiry procedure, while the
ICESCR and the Convention on the Rights of the Child are enfocerced only by the
means of a reporting procedure.
A striking aspect of the Option Protocol concerns the standing before the Committee.
According to art. 2, individual complaints may be submitted by or on behalf of
individuals or groups of individuals under the jurisdiction of a state party, claiming to
be the victims of a violation of any of the rights set forth in the Convention by that
state party. With regards to the inquiry procedure, art. 8 only refers to the fact that the
Committee has received reliable information indicating grave or systematic violations
of the Convention by a state party, without specifying the source of the information.
Obviously, the two procedures aim at different purposes. The individual complaints
one is directed towards the adoption of redress in individual cases, in favour of
specific victims of violations, while the inquiry procedure is intended to allow
extensive investigations on substantial abuses of women’s rights, not necessarly
reflected in states reports or ascertainable through individual claims. In any case, they
both give particular standing not only to the victims of violations, but also to other
subjects, even to NGOs, interested in the improvement of women’s conditions.
Indeed, art. 2 allows to bring a claim before the Committee not only to victims
(individuals or groups) of an alleged violations, but also to actors operating on behalf
of such victims. The standing of NGOs before the Committee is further expanded by
the circumstance that art. 2 requires that only the victim is under the jurisdiction of the
concerned state, while this same requirement is not set forth for those acting
representing the victim. Furthermore, the condition that the claimant be given the
consent of the victim expressly admits derogations in the case the claimant itself can
provide a justification (e.g., the impossibility for the victim to appoint a representative
or to give her consent). As regards the inquiry procedure, the general character of the
clause contained in art. 8 implies that even NGOs can provide information on grave or
systematic violations of women’s rights; if in the specific case the Committee deems
them to be reliable, it may decide to embark on an inquiry procedure.
A second relevant aspect is that both art. 2 and art. 8 make reference to the whole
Convention, and do not limit the scope ratione materiae of the two procedures. The
decision not to restrict the new enforcement powers of the Committee to the violations
of some provisions of the Convention reflects the view that the whole Convention has
been deemed justiciable, even where it merely obliges the state parties “to take all
appropriate measures” in order to achieve a specific result. In these cases, it may be
presumed that states have recognized to have undertaken minimum obligations, to be
ascertained by the Committee in specific cases, and that they cannot justify their noncompliance invoking a concept of “progressive realization”.
A final element concerns the prohibition to make reservations to the Protocol
prescribed in art. 17. This provision must be considered in connection with the opt-out
clause of art. 10, which allows state parties not to recognize in their regards the
competence of the Committee under the inquiry procedure.
During the negotiations for the Optional Protocol the issue of reservations was highly
debated. It was rightly felt that to allow states to exlcude themselves from the scope of
operation of the envisaged procedures would weaken the powers granted to the
Committee. This would be even more unimaginable given that the new procedures
would be set forth by a legal document not per se legally binding, but open to the
ratification or accession of those state parties willing to partecipate to it. Neverthless,
most “conservative” states were quite dissatisfied with an absolute prohibition to
make reservations, in particular because the submission to the inquiry procedure, at
that time set forth in only one UN human rights treaty (the Convention against
Torture), would imply an excessive interference in their domestic affairs. The
Protocol is the result of the compromise reached during the negotiations, aiming both
at favouring to the most possible extent its application towards state parties and, at the
same time, obtaining the highest number of ratifications.
The opt-out clause contained in art. 10 is not the only inadequacy of the Optional
Protocol. As for other human rights treaties, its provisions do not ensure a complete
enjoyment of women’s rights.
As far as the complaiant procedure is concerned, one of its negative features lies in
the lack of transparency in the way it is carried out. Indeed, the Protocol expressly
provides that the communication is brought confidentially to the attention of the state
concerned and that the Committee shall examine in closed meetings the claim
submitted under art. 2 as well as the written responses given by the state. A similar
consideration can be made for the inquiry procedure. Moreover, the procedure enables
the parties to present only written communications and does not give them the
possibility to make oral statements in an ad hoc session. Finally, the Committee is
only obliged to include in its annual report a “summary” of its activities under the
Protocol.
It should also be considered that the Committee lacks in effective enforcement
powers, as well. In the complaint procedure, at the end of its examination the
Committee transmits to the parties its views and recommendations. The state
concerned is under the mere obligations to give due consideration to them and to
transmit written responses within six months; if so requested by the Committee, it
shall give further information about the measure it has taken in response to the views
and recommendations in the report submitted under art. 18 of the Convention. A
similar follow-up procedure applies for the inquiry procedure as well.
As a matter of fact, the Optional Protocol neither obliges state parties to conform to
the views and recommendations of the Committee, which maintain a mere exhortative
character, nor does it empower the Committee to impose sanctions on reluctant states.
As for the monitoring procedure provided by art. 18 of the Convention, the action of
the Committee is mainly directed at building up a constructive dialogue with the state,
functioning more as a legal means of political pressure rather than of legal pressure.
4.
The implementation by the Convention: the limits posed by reservations
of State parties
The implementation of the Convention is seriously undermined by reservations, since
it has been ratified with reservations by more states than any other human rights
treaty. The high participation to the Convention (at present counting 177 state parties)
had raised the hope for a progressive and significant improvement of women’s
standards of living worldwide. Unfortunately, its operation has to be assessed taking
into account the will expressed by many states not to conform all their national laws
and practices with the obligations assumed.
According to art. 19.a) and 19.b) of the 1969 Vienna Convention on the Law of
Treaties, a state can make reservations to a treaty so long as the treaty does not
prohibit them or limit the type of reservations that can be made. Furthermore, art.
19.c) prohibits reservations incompatible with the object and purpose of the treaty.
CEDAW follows this same approach in art. 28 para. 2, which allows reservations
unless they are incompatible with the object and purpose of the Treaty.
Some reservations to CEDAW have common characteristics. Many states relied on
art. 29 para. 2, which contains an opt-out clause allowing state parties not to submit to
the ICJ disputes concerning the implementation or interpretation of the Convention;
some other have limited the effect of art. 2 and art. 7 by refusing to consider women
for succession to the crown. However, most of the reservations reflect the objection
that the Convention is nothing but a product of the cultural imperialism of Western
states. As a matter of fact, they have been made mostly by Islamic states with the
purpose of guaranteeing the application of Shari’a provisions despite the assumed
obligations of equality and non-discrimination between men and women. As a
consequence, some of the core provisions of the Convention (e.g. artt. 2, 5 and 16)
have been the object of the majority of the reservations, since they address high
sensitive issues with regard to state sovereignty and religious practices.
The reaction to these reservations has been quite feeble. Very few states have decided
to object their compatibility with the object and purpose of CEDAW, and when they
did, it was clear that it was without prejudice against the entry into force of the
Convention between the reserving state and the objecting one. Following the Vienna
Convention approach, the result is that the reserving state is a party to the Convention
and that the reserved provision is not applicable to its relationships with the objecting
state. This limited outcome may justify the low number of objections, since the same
reciprocity criteria governs the relationships of the reserving states with those that
accept the reservations.
It could be maintained that the criteria of reciprocity governing the effects of
reservations, as codified in the Vienna Convention, is not appropriate since the
obligations imposed by the Convention, as well as by all other human rights treaties,
have a collective, rather than a reciprocal, character. Indeed, CEDAW provisions are
not intended to regulate bilateral relationships among states, conferring them
reciprocal duties and rights. They rather concern the behaviour of the state parties in
their national territories and in respect of the individuals subject to their jurisdiction,
beneficiaries of the prescribed obligations. But in this case it remains to be established
if the states are still entitled to judge the admissibility of reservations and to determine
who is competent to define the effects of reservations incompatible with the object
and purpose of the Convention.
In this regard, CEDAW lacks in a mechanism of collective response similar to that
established by the Convention on the Elimination of all Forms of Racial
Discrimination, under which reservations are rejected if they are deemed to be
incompatible with the Convention purpose provided that at least two-third of the state
parties object (art. 20 para. 2). This gap leads us to examine CEDAW institutional
response to reservations.
The Committee has considered the issue during the review of the reports submitted by
the state parties and has introduced a specific section on reservations in its concluding
observations. But its narrow follow-up powers limit quite considerably the efficacy of
its action. Following a more general approach, the Committee has adopted two
general recommendations on reservations, as well. In particular, General
Recommendation n. 20 invites state parties to raise the question of the validity and the
legal effects of reservations to the Convention, to reconsider such reservations with a
view to strengthening the implementation of human rights treaties, and finally to
consider introducing a procedure on reservations to the Convention compatible with
that of other human rights treaties.
In all cases, according to the Convention the Committee has no power to decide, or
merely express its opinion, on the validity and the effects of reservations made by
state parties. Indeed, the question has been expressly referred by the Committee to the
Office of Legal Affairs of the UN Secretariat, whose opinion has been that “the
functions of the Committee do not appear to include a determination of the
incompatibility of reservations, although reservations undoubtedly affect the
application of the Convention and the Committee might have to comment thereon in
its report in this context” (Report 39th session A/39/45). However, the issue becomes
quite relevant after the entry into force of the Optional Protocol, since the
admissibility of reservations and their effect could be questioned in the framework of
the procedures where the Committee is called to express its view on a specific
violation by a state party or on a situation of grave or systematic violation of women’s
rights.
In this case, it should be questioned whether the adoption of an approach similar to
that of the Human Rights Committee with regard to reservation to the ICCPR would
be of any relevance. As wellknown, in its General Comment no. 24 the Human Rights
Committee has pointed out that, even in absence of an express provision, it is up to
the Committee to determine, objectively and by reference to legal principles, whether
a specific reservation is incompatible with the object and purpose of the Covenant,
since it is a task the Committee cannot avoid in the performance of its functions (para.
18). It goes on the emphasize that “the normal consequence of an unacceptable
reservation is not that the Covenant will not be in effect at all for a reserving party.
Rather, such a reservation will generally be severable, in the sense that the Covenant
will be operative for the reserving party without the benefit of the reservation”. (para.
18).
The same functional approach followed by the Human Rights Committee could be
adopted by the CEDAW Committee to affirm its competence to pronounce on the
compatibility of a reservation with the criteria posed by art. 28 para. 2 of the
Convention. As regards the definition of the effects of a declaration of inadmissibility,
a cautious approach appears to be more appropriate. First, it cannot be ignored that the
Human Rights Committee Comment has been highly criticized by many states, most
of them pointing out the inadequacy of the severability of a reservation deemed to be
incompatible with the object and purpose of the Covenant. It is considered that a
reservation is a condition attached to the consent of a state to be bound by a treaty.
Therefore, if it is incompatible with the object and purpose of a treaty the
consequence is not its severability form the expressed consent, but rather the nonparticipation of the state to the treaty. Secondly, the 1997 International Law
Commission Preliminary Conclusions on reservations to normative multilateral
treaties, including human rights treaties, while admitting that monitoring bodies
established by human rights treaties are competent “to comment upon and express
recommendations with regard … to the admissibility of reservations by states, in order
to carry out the functions assigned to them (ILC Report A/52/10, p. 126, para. 5),
substantially contradicts the Human Rights Committee as regards the consequence of
an inadmissible reservation, since “it is the reserving state that has the responsibility
for taking action”, modifying or withdrawing the reservation or abstaining from
becoming a party to the treaty (para. 6). Finally, the adoption for CEDAW of the
approach delineated by the Human Rights Committee could compromise the already
limited efficacy of the monitoring functions of the Committee. The exercise by the
Committee of a more intrusive power with regard to reservations, deemed by many
states at the foundation of their consent to enter the Convention because of deeply
rooted religious beliefs or of cultural customary practices, could induce states not to
submit regular reports under art. 18, depriving the Committee of the power to monitor
the progress made in the implementation of the Convention; similarly, it could justify
the decision not to adhere to the individual complaint procedure and to the inquiry
procedure provided for by the Optional Protocol.