analysisBy Chelsea Purvis
How has the CEDAW attempted to eradicate discrimination against women in the public and private spheres?
I - INTRODUCTION
The Convention on the Elimination of Discrimination against Women (CEDAW) is the United Nations' treaty on women's rights. Adopted by the General Assembly in 1979, it was the first international treaty to address the fundamental rights of women in politics, health-care, education, economics, employment, law, property and marriage and family relations filling a major gap in international human rights law.
While earlier declarations and treaties obligated states to ensure that men and women were treated equally, CEDAW was the first to actually define acts of discrimination against women and is often described as an international bill of rights for women. At present 187 states are party to CEDAW, including the majority of African states (notable exceptions are Somalia and Sudan). This article describes the treaty, explains how the treaty is implemented, and discusses how women's rights activists in Africa have contributed to and made use of CEDAW.
II - THE TEXT OF CEDAW: NON-DISCRIMINATION IN ALL SPHERES
The preamble of the Convention recognises that despite various instruments already in place, 'extensive discrimination against women continues to exist'. Furthermore, it expresses a belief that 'the full and complete development of a country, the welfare of the world and the cause of peace require the maximum participation of women on equal terms with men in all fields'.
To mitigate such conditions the Convention addresses three areas of women's rights, namely civil rights, legal status and reproductive rights. Whilst the legal rights of women are given the broadest attention, the treaty is also unique in the importance that it gives to human reproduction rights.
Under Article 1 of CEDAW, the term 'discrimination against women' is defined as '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 basis, on the basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field'. States that are party to the treaty commit to take measures to eliminate discrimination in all of these fields.
Article 7 underlines that, on an equal basis with men, women must be allowed to vote, hold public office, and participate in civil society. Article 9 states that they must have the same rights as men with to determine their nationality and the nationality of their children.
In addition, women must not face discrimination in education or employment - including on the basis of pregnancy or motherhood (Article 11). They must have equal access to health care, benefits, and financial credit (Article 12) and laws must not discriminate against women, either on their face or in fact.
Under CEDAW, states must take measures to suppress prostitution and trafficking of women (Article 6). They must also show particular concern for the discrimination faced by rural women, ensuring that rural women participate and benefit from rural development on an equal basis with men (Article 14). For instance, rural women have the same rights as men to organise themselves; to obtain training, education, and financial assistance; and to access land and housing.
III - NON-DISCRIMINATION IN MARRIAGE, FAMILY, AND CULTURE
Importantly, CEDAW enshrines women's right to non-discrimination in family and social life. Women are entitled to participate in recreational activities, sports, and cultural life on an equal basis with men. States must ensure that women have the same rights and responsibilities as men in marriage, divorce, and parenthood.
Unlike other treaties, CEDAW is also concerned with human reproduction. While it does not list a right to contraception or abortion, the treaty does obligate states to ensure that women have the same rights as men to determine the number and spacing of their children. Women must have access to "the information, education and means to enable them to exercise these rights". Additionally, states must ensure that women have adequate prenatal and postnatal health care and are not discriminated against on the grounds of marriage or maternity.
Under CEDAW, states are obligated to modify laws and government policies to prevent and address discrimination against women. But significantly, CEDAW also obligates states to take steps to modify sexist beliefs and behaviours. The preamble recognises that '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 between men and women. States, therefore, must work to eliminate customary practices that are based on the idea that women are inferior to men, and they must ensure that parenting is understood to be a shared responsibility between men and women to achieve equality in both the public and private spheres.
CEDAW's provisions requiring states to modify social and cultural attitudes toward women, and its requirements that women have equal rights in marriage and family life, have been its most controversial.
When ratifying a treaty, a state typically has the option to issue 'reservations' - statements that certain provisions of the treaty will not apply to that state. Many states parties to CEDAW have made reservations to the aspects of the treaty involving family life, marriage, and social and cultural life. In 1987, the Committee on the Elimination of Discrimination against Women expressed concern about a significant number of reservations that appeared incompatible with the object and purpose of the Convention, and urged all states to reconsider them. The United States, one of the few countries not party to CEDAW, has cited these reservations as one of the reasons that it will not ratify the treaty.
Although reservations present obstacles to the implementation of CEDAW, the treaty generally enjoys broad international acceptance. With 187 states party to the Convention, CEDAW is one of the most widely-ratified human rights treaties.
IV - THE CEDAW COMMITTEE: MONITORING IMPLEMENTATION
The Committee on the Elimination on All Forms of Discrimination against Women (the Committee) monitors the implementation of the CEDAW treaty. The Committee is made up of twenty-three experts of high moral standing and competence in the treaty's subject matter. These experts are nominated by states parties and elected for two-year terms. Critics of CEDAW have sometimes argued that Committee members are 'radical' or 'extreme' women's rights activists, but most Committee members have not come from activist backgrounds at all - a large proportion of Committee members work in government.
i) The Periodic Reporting Process: A Constructive Dialogue
One of the Committee's major functions is to review each state party's progress in implementing CEDAW at the national level. It does so through a periodic reporting process. This process is designed to be a dialogue in which the Committee and states parties exchange ideas and views. However, the Committee is not an enforcement body and therefore it cannot force states to comply with CEDAW or punish states for failure to comply. Instead, the Committee works constructively with states to persuade them to more fully implement CEDAW.
A state party to CEDAW is obligated to submit a report to the Committee one year after ratifying the treaty, and then every four years after that. In this report the state describes the steps it has taken to implement the treaty. The Committee reviews this report and provides the state with questions to be discussed at hearings in which the state responds with written and oral reports. After considering these reports, the Committee produces its own report evaluating the progress of treaty implementation in the state and offering conclusions and recommendations for further action.
Like other human rights treaty bodies, the CEDAW Committee has had difficulty persuading some states parties to engage in the periodic reporting process. At the same time, the Committee has struggled to keep up pace with the flow of reports that it does receive. Until 1997, the Committee could only meet two weeks a year, resulting in a backlog of un-reviewed periodic reports. This situation has improved over the past 15 years: now the Committee meets more frequently, and it has been granted access to more United Nations resources. The Committee also considers bundles of reports from a single state at a time, issuing one set of conclusions and recommendations to these combined reports to increase efficiency.
ii) The role of NGOs in the Periodic Reporting Process
Non-governmental organisations (NGOs) may submit "shadow reports" providing their views on treaty implementation by states. Shadow reports can provide vital information of which a state is unaware, or which it does not wish to report. The Committee considers these shadow reports when formulating its conclusions and recommendations. The Committee also invites NGOs to present information orally at its sessions.
iii) General recommendations
In addition to offering focused comments to individual countries, the Committee issues general recommendations to raise awareness on certain issues. These general recommendations allow the Committee to elaborate on provisions in the treaty, or to explain how the rights enshrined in CEDAW apply to topics not mentioned in the treaty.
Violence against women is one prominent example. There is no mention of this in the text of CEDAW, but in 1992, the Committee used General Recommendation No.19 to explain that violence against women is a form of discrimination and is thus prohibited by CEDAW. The Committee's conclusion 'that not all the reports of States partes adequately reflected the close connection between discrimination against women, gender based violence, and violations of human rights and fundamental freedoms' prompted the recommendation. Accordingly, 'the full implementation of the Convention required States to take positive measures to eliminate all forms of violence against women'.
Some of the CEDAW Committee's commentary general recommendations, like its recommendation prohibiting violence against women, have been widely accepted. Others are more controversial. For example, some scholars and activists argue that the CEDAW Committee's comments on traditions practised primarily in the Global South - such as female circumcision and polygamy - devalue non-Western cultures or impose Western norms on the Global South and thus do not account for cultural subjectivity.
iv) Individual communications under the Optional Protocol
The Committee performs an additional function for states that are parties to CEDAW's Optional Protocol. Under the Optional Protocol, individuals and groups can submit communications to the Committee for adjudication. The Committee "adopts views" in response to these communications. The Committee adopts views on a handful of communications each year, and these views are a valuable source of international law on women's rights.
Finally, the Committee also has power under CEDAW's Optional Protocol to investigate systematic violations of the treaty. It concluded only one of these inquiries in 2005, finding 'grave and systematic violations of the provisions of the Convention on the Elimination of All Forms Discrimination against Women' with regards to the abduction, rape and murder of women in the Ciudad Juárez area of Chihuahua, Mexico.
V - AFRICAN INVOLVEMENT IN CEDAW
African states and members of civil society have significantly contributed to, and made use of, CEDAW. As a result of advocacy by African women, nearly every African country has ratified the treaty. Moreover, most African countries (with the exception of North African countries) have ratified without issuing reservations.
Many African governments take the reporting process seriously - again, largely as a result of pressure by women voters and organisations - and have undertaken significant reforms to come into compliance with the treaty.
In 2008 the CEDAW Committee noted of Tanzania, for example, that the country was "committed to the implementation" of CEDAW and that it had made substantial progress in tackling discrimination against women. Sierra Leone provides another example of strong commitment to the treaty: The country modified its laws on marriage, divorce, inheritance, and domestic violence in 2007 in part due to the recommendations of the Committee. However, other African states have not engaged as fully with the treaty or reporting process. Although Chad and the Ivory Coast ratified CEDAW in 1995, for example, they did not submit their initial reports to the Committee until 2010 illustrating weaknesses in the authority of the Commission.
Accomplished lawyers and women's rights activists from Africa have served as CEDAW Committee members, shaping the Committee's work. Committee members from African countries have included Justice Rose Ukeje, the first female judge (and later Chief Judge) appointed to the Nigerian Federal High Court; Dorcas Coker-Appiah, a women's rights activist and lawyer from Ghana; and Pramila Patten, an international law expert who has drafted bills on domestic violence, family laws, and sex discrimination for her home country of Mauritius.
African NGOs engage in CEDAW's periodic reporting process by submitting shadow reports on their country's compliance with CEDAW. And by issuing shadow reports, African NGOs have influenced the CEDAW Committee's conclusions and recommendations.
Many African women's rights activists have used CEDAW as a tool to promote women's human rights, advocating for their governments to comply with CEDAW. Indeed, CEDAW has provided a springboard for regional women's rights agreements, such as the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (the Maputo Protocol). Originally adopted in 2003, the Maputo Protocol requires that States Parties shall ensure that the right to health of Women, including sexual and reproductive health is respected and promoted.
Finally, scholars and activists from Africa have worked to ensure that CEDAW is interpreted in a way that takes into account the experiences and needs of all women, not just women from the world's dominant cultures or groups.
One major opportunity for women's rights activists to engage further with CEDAW is through the use of the Optional Protocol. Despite the fact that many African states are party to the Optional Protocol, the Committee has never adopted views on a communication from Africa. In fact, the Committee has only adopted views on two communications from the Global South - one from the Philippines, and one from Peru. The likely cause of the Committee's geographical gap in jurisprudence is that organisations and individuals in the Global South are unfamiliar with how to utilise the communications procedure, and thus are not submitting communications to the Committee. Hopefully, as women's rights groups in Africa become more familiar with the Optional Protocol, African women will be better represented in the Committee's jurisprudence.
With the continued work of African women's rights activists, CEDAW and its Committee will serve as useful tools for eradicating discrimination against women on the continent.
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QUESTIONS TO CONSIDER:
1. Why is CEDAW so important to international human rights law?
2. How does CEDAW ensure the eradication of discrimination against women in both the public and private spheres?
3. Why have provisions on the eradication of discrimination against women in private life been so controversial?
4. In what ways is the effectiveness of the CEDAW Committee hampered?
5. In what way have African countries, organisations and individuals contributed to CEDAW?
CEDAW. 2012. http://www.womenstreaty.org/
UNIFEM. 2012. http://www.unifem.org/cedaw30/about_cedaw/
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Ackelsberg, M. & Shanley, M. "Privacy, Publicity, and Power: A Feminist Rethinking of the Public-Private Distinction." In: Ackelsberg, M. 2009. Resisting Citizenship: Feminist Essays on Politics, Community, and Democracy. London: Routledge.
Chelsea Purvis is a Robert L. Bernstein International Human Rights Fellow at Minority Rights Group International. She earned her B.A. from Yale College and attended Oxford University as a Rhodes Scholar. She received her J.D. from Yale Law School.