What is CEDAW
The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) is often referred to as the ‘women’s bill of rights’. It is one of the core international human rights treaties of the United Nations treaty system, which requires Member States to undertake legal obligations to respect, protect and fulfill human rights.
CEDAW was adopted by the UN General Assembly on December 19, 1979, coming into force as a treaty on December 3, 1981. Today, it is one of the most broadly endorsed human rights treaties – it has been ratified or acceded to by 189 countries to date, or about 90 per cent of the UN membership.
The articles of CEDAW fall into three main groups: the first set of articles explains the nature and scope of the State’s obligations; the second set of articles targets specific forms of discrimination and outlines measures that the State must undertake to eliminate discrimination in each of these areas; and the last set of articles governs procedural and administrative matters, such as the way the CEDAW reporting process works.
How is CEDAW Different from Other International Human Rights Treaties?
Why is CEDAW Important?
- CEDAW provides a complete definition of sex-based discrimination – as any distinction, exclusion, or restriction on the basis of sex, which intentionally or unintentionally nullifies or impairs the recognition, enjoyment and exercise of women’s social, cultural, political and economic rights.
- CEDAW takes a concrete and three-dimensional view of equality – it is based on the principle of “substantive equality”, or “equality of results” between men and women.
- CEDAW legally binds all States Parties to fulfill, protect and respect women’s human rights – meaning that the States are responsible not just for their own actions, but also for eliminating discrimination that is being perpetrated by private individuals and organizations.
- CEDAW recognizes that discrimination is often most deeply rooted in spheres of life such as culture, family and interpersonal relations – it addresses the aforementioned problem along with the negative impact of gender stereotyping.
How Many Countries in Southeast Asia are Party to the Convention?
How is Implementation of the Convention Proceeding?
- Legislation reflects this progress – a) across the region, existing laws have been amended, or new laws have been enacted on domestic violence, sexual harassment and rape, and anti-trafficking; b) many Southeast Asian countries have implemented, in the last decade, local and national legislations to improve women’s participation in decision-making, particularly in electoral and political processes; and c) further the governments are also committed to mainstreaming gender equality perspectives in national economic and social planning by incorporating gender equality provisions in national development plans and allocating resources to develop national action plans focused on anti-discrimination and women’s empowerment.
- Contribution by Civil society groups – these groups have done much to help raise awareness about CEDAW and to monitor its implementation. Most countries have NGO networks that have successfully submitted independent reports to the CEDAW Committee, providing an important source of information on the situation of women.Despite this progress however, obstacles remain, and full implementation of CEDAW is still a serious challenge –
- Ambiguity in status of the Convention – Greater clarity and understanding is needed on a) the status of treaty law vis á vis national law; b) and the role and place of CEDAW with respect to state institutions and civil society, particularly in regard to policy-making and resource allocation, and in developing national legislation, judicial decisions, programmes and mechanisms towards achieving gender equality.
- Discrimination against women is rooted in culture, family and interpersonal relations – The persistence of strong gender stereotyping in these areas characterizes much of the region. Patriarchal attitudes and deep-rooted practices regarding the roles and responsibilities of women and men in family and the society, help legitimize discrimination against women, and underlie women’s disadvantaged position in areas such as education, employment and public and political life. They are also a root cause of violence against women, a problem that is significantly widespread across the region.
What are State Parties’ Obligations to CEDAW?
By becoming a party to CEDAW, a State is legally obliged to take all appropriate measures to eliminate discrimination against women and advance gender equality. The content of these obligations, set out in Articles 2 to 5 of the Convention, is not open to alteration by individual governments or organizations.
Importantly, Article 2 makes clear that the State not only has the obligation not to discriminate through its own actions, but also to prevent and eliminate discrimination that is perpetrated by private individuals and organizations.
The State’s obligations extend to private life as well as public life. Article 16 provides that States must eliminate discrimination against women in marriage and family life, areas considered by many countries to fall within the private sphere. Historically, one of the biggest obstacles to realizing women’s rights in many countries has been the perception that the State should not interfere in the private realm of family relations. CEDAW recognizes that unequal power relations within the private sphere contribute very significantly to gender inequality in all aspects of women’s lives, and it directs States to take measures to correct this power imbalance.
How is CEDAW Monitored?
CEDAW is overseen by a treaty body called the Committee on the Elimination of Discrimination Against Women. This is a group of 23 gender equality experts, elected by States parties to CEDAW, although once elected they serve in an independent capacity and not as representatives of their countries. The Committee membership is regionally representative. Their terms last four years, with only half of the Committee members replaced each time elections take place.
The Committee is responsible for reviewing each State party’s progress, as well as the challenges they are experiencing in implementing the Convention. The Committee is also responsible for developing jurisprudence, a body of legal interpretation, through the issuing of General Recommendations and decisions under CEDAW’s Optional Protocol. This jurisprudence helps clarify how the Convention applies to specific situations and emerging issues.
Prior to 2008, the CEDAW Committee met in New York, with the UN Division for the Advancement of Women (DAW) serving as its secretariat. From 2008 onwards the Committee meets in Geneva and is supported by the Office of the High Commissioner for Human Rights.
What Does the CEDAW Reporting Process Entail?
States that are parties to CEDAW must submit regular reports to the CEDAW Committee, typically at four-yearly intervals. These reports contain detailed information about legislative, judicial, administrative and other measure that have been undertaken to implement CEDAW, as well as about obstacles encountered. The reports require a fairly comprehensive mapping of progress in achieving gender equality.
State reports are reviewed during the CEDAW Committee sessions which have been held in Geneva since 2008. The reporting State sends a government delegation, most often including the heads of national women’s machineries and other key officials such as those responsible for foreign affairs, the administration of justice, education, health, to engage in a dialogue with the Committee members.
Since 1990, initial and subsequent state reports have been reviewed by a pre-session working group of five Committee members. The working group draws up questions to guide the full Committee’s examination of the report – called the ‘List of issues and questions with regard to the consideration of periodic reports’. These questions are submitted to the country’s representative in advance so that a response can be prepared.
When the CEDAW session is over, the Committee issues its Concluding Observations on each State party’s report.
What Role Can Civil Society Play in the CEDAW Monitoring Process?
The CEDAW Committee places great value on hearing from women themselves about the situation in their countries. When the Committee is considering State reports, it will also draw on information provided by UN agencies and women’s NGOs from the reporting countries. Specific meeting times are set aside during the formal sessions for the Committee to hold discussions with NGOs. In addition, NGOs can also submit alternative reports on their countries’ progress – often called ‘shadow reports’ – to the Committee.
After the CEDAW session, many NGOs undertake efforts to monitor their country’s obligations to CEDAW implementation. They translate key documents into local languages and disseminate these as widely as possible to raise awareness about the Convention. They also use the CEDAW Committee’s Concluding Observations as an important advocacy tool – to urge their governments to concentrate on the critical measures highlighted by the Committee that need to be taken to move forward on implementation. Many NGOs also find gender experts to conduct training on CEDAW for community groups and national institutions to deepen knowledge and build awareness on gender equality and women’s human rights.
What is the Definition of Discrimination Against Women?
Article 1 of the Convention provides the definition of discrimination against women:
“For the purposes of the present Convention, 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.”
This definition includes not just direct or intentional discrimination, but any act that has the effect of creating or perpetuating inequality between men and women.
What is ‘Substantive’ Equality?
The formal model of equality prescribes that equality exists where the law treats people the same. However, this formal approach is not nearly comprehensive enough to create conditions of actual equality in women’s lives, because the factors that discriminate against women, and hold them in subordinate positions, extend far beyond the problems posed by overtly discriminatory laws.
In recognition of this, CEDAW takes a three-dimensional view of equality that it calls ‘substantive equality’. Instead of considering equality only in formal and legalistic terms, and saying that laws and policies ensure equality between men and women simply by being gender-neutral, CEDAW requires that their actual impact and effect also be considered. The substantive model of equality therefore requires using the actual conditions of women’s lives, rather than the wording used in laws, as the true measure of whether equality has been achieved. The State thus must do more than just ensuring that there are no existing laws that directly discriminate against women. It must also take whatever measures are needed to ensure that women actually experience equality in their lives.
What are Special Measures and Temporary Special Measures?
Why special measures: In cases where the long-term effects of discrimination have seriously disadvantaged women, special measures maybe required that give women not just formally equal treatment to men, but preferential treatment, in order to create actual equality for women.
What are special measures: The definition and appropriate application of these measures is described in Article 4 of the Convention, and further elaborated on in the CEDAW Committee’s General Recommendation No. 25.
Article 4, paragraph 1, directs States to take temporary special measures as may be required for a period of time, to speed up the achievement of women’s de facto or substantive equality with men, and to effect the structural, social and cultural changes necessary to correct past and current forms of discrimination against women.
No discrimination against men: CEDAW makes clear that these temporary special measures do not discriminate against men and are not a form of discrimination if they are being implemented as a means to speed up the achievement of gender equality.
Types of special measures: Temporary special measures can include a wide range of legislative, executive, administrative and other regulatory instruments, policies and practices, such as –
- outreach or support programmes;
- allocation and/or reallocation of resources;
- preferential treatment;
- targeted recruitment,
- hiring and promotion;
- numerical goals connected with timeframes; and
- quota systems.
Duration of the special measures: The emphasis is on the temporary nature of the measures and their duration is determined by their result in response to a concrete problem, which must be discontinued when the desired result has been achieved and sustained for a period of time. But not all measures that potentially are, or will be, favourable to women are temporary special measures. Hence, there is a need to distinguish temporary special measures from the special measures described in the Convention’s Article 4, paragraph 2, which provides for non-identical treatment of women and men due to their biological differences – these measures are considered of a permanent nature, and refer to the provision of general conditions or the adoption of general social policies to improve the situation of women and girls, including for instance measures to protect maternity, or women’s reproductive rights.
Why does the CEDAW Convention allow Reservations from States Parties?
Rationale for Reservations: It has been recognized that some rights may take more time to be realized than others. As in the case of:
- Some economic, social and cultural rights – because they require a greater investment of resources, or more substantial structural changes.
- Some countries that, at the time of ratification, may have in place laws, traditions, and religious or cultural practices that may discriminate against women – so time may be required to remove discriminatory provisions within the law, or change discriminatory behaviour. Where a State cannot be realistically expected to achieve a right immediately, its obligation is understood to be ‘progressive’, and can be satisfied by genuine efforts that produce incremental progress towards realization of the right.
CEDAW permitting Reservations: With this in mind, CEDAW permits ratification subject to reservations, provided that the reservations are not incompatible with the object and purpose of the Convention. Reservations to two articles in particular – Articles 2 and 16 – are considered impermissible, since these are considered to be core provisions of the Convention.
Nonetheless, numerous countries have entered reservations to these 2 articles, on the grounds of incongruent national law, tradition, religion or culture. The CEDAW Committee continues to express its concerns over these reservations, and urge States parties to remove them and thereby comply with general principles of international law.
What are the Concluding Observations?
Meaning: After the CEDAW Committee reviews a State party’s progress and the challenges it experiences in implementing the Convention, the Committee issues its Concluding Observations (previously termed Concluding Comments) which provide specific guidance on how this performance could be improved in the national context.
Importance: The Concluding Observations have the following uses-
- Note successful steps that have been taken to achieve gender equality;
- Identify the most critical measures that need to be taken in the future to implement the Convention.
- Provide authoritative guidance about what CEDAW requires in individual country contexts and are important resources for gender equality work.
- Valuable advocacy tools used by gender equality advocates.
- Concluding Observations of the Committee for each country report are available from the CEDAW Committee website of the Office of the UN High Commissioner for Human Rights under each Committee session.
- CEDAW Committee website of the Office of the UN High Commissioner for Human Rights under each Committee session.
What are the General Recommendations?
The General Recommendations (GRs) are statements by the CEDAW Committee about how different aspects of the Convention should be interpreted, and are intended to be additional guidance to assist governments in their implementation the Convention. They have primarily been used to date either to elaborate on the implications of specific articles of CEDAW (such as Article 7 on political participation), or to explain the application of the Convention to areas which are not covered by their own article (such as HIV/AIDS).
The general recommendations typically include an overview of the women’s human rights concerns in the area, a close analysis of the ways in which CEDAW applies to these concerns, and a list of recommended measures for governments to implement.
To date, CEDAW has adopted 34 general recommendations.
What is the Optional Protocol?
A number of core international human rights treaties have protocols that States parties can sign on to. These Optional Protocols are treaties in their own right, and are open to signature, accession or ratification by countries who are party to the main treaty. Optional Protocols create avenues for individuals to make complaints about the violation of their rights to a treaty body, or empower a treaty body to conduct inquiries on areas of concern. In 1999, the UN General Assembly adopted CEDAW’s Optional Protocol (OP-CEDAW), which came into force the following year.
OP-CEDAW includes an inquiry procedure and a complaints procedure. An inquiry procedure enables the CEDAW Committee to conduct inquiries into serious and systematic abuses of women’s human rights in countries that become States parties to the Optional Protocol. The complaints procedure, also known as the communications procedure, gives individuals and groups of women the right to petition or the right to complain to the CEDAW Committee about violations of rights.
The OP-CEDAW offers a number of benefits towards the implementation of the Convention. It reinforces the Convention – it offers the first gender specific international complaints procedure, putting it on par with other human rights treaties with such procedures. The OP-CEDAW promotes a better understanding by both States and individuals of all dimensions of the rights set forth in CEDAW. The Committee is able to focus on individual cases when considering CEDAW, and able to say what is required from States in individual circumstances. This contributes to enhancing jurisprudence that then allows for greater clarification and guidance on States’ obligations under CEDAW.
The OP-CEDAW also strengthens the enforcement mechanism for CEDAW, stimulating States to take steps to implement the Convention, and change discriminatory laws and practices to avoid complaints being made against them. In addition, the OP-CEDAW goes further than CEDAW’s Article 29, where two or more State parties can refer disputes about the interpretation and implementation of CEDAW to arbitration, and if the dispute is not settled, it can be referred to the International Court of Justice. Article 29 is subject to a large number of reservations and has never been used. The OP-CEDAW incorporates a settlement procedure which allows the Committee to facilitate settlements of disputes in some circumstances.
Gender equality advocates around the world have been working to encourage their governments to sign on to the OP-CEDAW with some success – to date there are 100 States parties to the OP. In Southeast Asia, the Philippines, Thailand, and Timor-Leste have ratified or acceded to the OP-CEDAW, while Cambodia and Indonesia have signed but not yet ratified it.