Current Processes for Assessment of Women's Human Rights in International Law

This year's commemoration of International Women's Day is a time for assessment: the international community celebrates over 25 years since the adoption of the Convention for the Elimination of All Forms of Discrimination Against Women (CEDAW) and ten years since the Fourth World Conference on Women in Beijing, China adopted the Beijing Platform for Action ("Beijing Platform"). In addition, this year there will be a review of the United Nations' Millennium Development Goals of 2000 (MDG), which incorporate gender equality as a core plank.

 

During this period, there has been significant structural progress on the elimination of discrimination against women as evidenced by the mere existence of CEDAW, the Beijing Platform, the MDGs and a variety of other documents, declarations, conventions and protocols dealing with issues of gender.[1] Each of these initiatives has helped to transform the profile of women's human rights in the international community and to create a discourse through which to discuss the issues. This Insight will seek to outline the ways in which these initiatives interrelate and to identify some of the greatest challenges to transforming the structural commitment to women's human rights into a practical and effective one for every woman.

 

CEDAW

 

The Convention for the Elimination of All Forms of Discrimination Against Women provides the legal framework for eliminating discrimination and promoting equality on the basis of gender. Today, 179 states have ratified CEDAW, making it one of the most widely adopted human rights treaties in the world.[2]The treaty promotes substantive equality for women by spelling out wide-ranging obligations for States parties to eliminate discrimination in both the public and the private spheres

 

CEDAW not only focuses attention on the State's traditional responsibilities to eliminate discriminatory laws and practices, but it also obligates the State party to take measures to promote equality by breaking down commonly held stereotypes impacting culture and tradition, and influencing the gendered roles of men and women in the family.

 

While CEDAW creates a framework to discuss women's human rights, the actual modes of adoption of the treaty, the widespread use of reservations, and the lack of periodic reporting and constructive dialogue with the independent experts who sit on the CEDAW Committee impede the realization of many of the rights in the treaty and have served to undermine the treaty in a variety of ways.

 

Reservations

 

CEDAW may be one of the most widely adopted human rights treaties, but it is also one with the most reservations. Numerous countries have made significant reservations (unilateral statements excluding or modifying certain provisions in the treaty). This is particularly true for issues of personal status (such as marriage, divorce, inheritance, custody of children), which continue to be governed by religious or customary law that often discriminates against women.

 

While the CEDAW Committee has stated that reservations must be narrowly tailored, specific in nature and in line with the object and purpose of the treaty, many of the reservations placed by States parties are broadly construed and serve to undermine CEDAW's core provisions.

 

Failure to Implement and Report

 

When a State party ratifies CEDAW, it is obligated to report on its compliance to the CEDAW Committee at least every four years. Often, however, a State party ratifies the Convention and then neglects to incorporate its provisions into its domestic law and/or agenda. Where legislative changes are made, States often tend to focus on de jure compliance while not ensuring the de facto implementation of those reforms.

 

States parties also often neglect to report to the Committee in a timely manner. This impedes the oversight function of the Committee. Currently, 76 countries are behind in their reporting obligation. Fifty-three States parties have never submitted their initial reports. This is in part due to the fact that treaty reporting requires a commitment of resources from the state and, even more importantly, requires the political will to create change.

 

The CEDAW Committee has explicitly required that States parties provide information on their implementation of the Beijing Platform and other UN platforms and declarations which include gender dimensions.[3] Therefore, lack of reporting on CEDAW also undermines a State party's accountability for progress on the Beijing Platform and MDGs.

 

The Optional Protocol

 

One of the most hopeful developments for CEDAW is the entry into force in December 2000 of its Optional Protocol (OP). The OP allows for the Committee's investigation of individual complaints and also sets up a proactive Inquiry mechanism by which the Committee can investigate grave or systematic violations of the treaty at its own initiative. Seventy-one countries have thus far ratified the Optional Protocol.

 

The process for investigation is confidential and at present only one case (concerning Hungary) has been released under the OP procedure.

 

The OP applies when all domestic remedies are exhausted or in cases in which domestic remedies are not possible. It also creates "case law" which will further interpret the treaty in the context of individual cases, giving specific meaning to the treaty.

 

While the Committee may see fit to award compensation or seek legislative change, decisions of the Committee under the Optional Protocol are non-binding. Nevertheless this new mechanism should provide another outlet to ensure accountability and redress for acts of discrimination against women.

 

Implementation/Enforcement

 

Despite formidable challenges in the full realization of the rights enumerated in CEDAW, the Convention has made a profound impact on the ways in which States relate to women's human rights. While the United States has yet to ratify CEDAW, NGOs, activists and policymakers around the world are increasingly using the treaty to help promote legislative and policy reform and de facto change in the status of women. CEDAW has been cited in public debates and media reports in a variety of countries on issues such as proposed domestic violence legislation in India and the debate over inclusion of women in the military in Botswana.

 

While CEDAW provides a good legal framework for action, its goals have yet to be fully achieved.

 

The Beijing Platform for Action

 

In addition to CEDAW, the international community has adopted a comprehensive Plan of Action at the 1995 Fourth World Conference on Women, held in Beijing, China.[4] Known as the Beijing Platform, the document was agreed to by 189 countries and serves as "an agenda for women's empowerment."[5] It outlines twelve critical areas of concern which countries pledged to address following the 1995 meeting.

 

While CEDAW outlines specific obligations of States parties to eliminate discrimination in particular spheres such as education, employment, health and political representation, the Beijing Platform takes a broader look at the issues facing women and expands the areas of concern to explicitly include the impact of armed conflict on women, the management of natural resources, and challenges to the rights of girl children.

 

The Beijing Declaration is not a treaty. Nevertheless, as part of the Declaration, all countries pledged to set up national programs to implement the Beijing Platform and to give adequate resources to ensure the program's success. As noted above, the CEDAW Committee has asked its States parties to report on implementation of the Beijing Platform.[6] The Beijing Process is overseen by the UN Commission on the Status of Women and a major review of Beijing + 10 is currently underway in New York. What is already clear, however, is that implementation of the Beijing Platform has been limited and while countries including the United States have pledged themselves to the process, implementation is still spotty.

 

The Millennium Development Goals

 

The Millennium Development Declaration is a United Nations General Assembly resolution adopted by 189 countries on December 18, 2000.[7] Eight key targets set forth in the Declaration were developed into the Millenium Development Goals (MDGs), accompanied by 16 global targets and 48 global indicators. These goals, targets and indicators, along with a system of periodic updates and reporting, combine to provide countries with concrete measures to help achieve progress in implementing the goals. The MDGs focus on eradicating extreme poverty and hunger; achieving universal primary education; promoting gender equality and empowering women; reducing child mortality; improving maternal health; combating HIV/ AIDS, malaria and other diseases; ensuring environmental sustainability; and developing a global partnership for development.

 

The MDGs recognize the interdependence of various rights (including women's human rights) to achieving equitable and sustainable development and to eradicate poverty. They were developed in the hope that multiple efforts by various development partners focused in the same direction would make tangible progress according to the ambitious timeline laid out in the MDGs.

 

The Declaration resolves to promote gender equality and the empowerment of women as effective ways to combat poverty, hunger and disease and to stimulate development that is truly sustainable.[8] It also explicitly pledges "to combat all forms of violence against women and to implement the Convention on the Elimination of All Forms of Discrimination against Women" (CEDAW) along with mainstreaming gender equality and promoting the empowerment of women in all other priorities.

 

The MDGs set forward very specific targets and timeframes to achieve these goals. For example, under Goal Three (Promote Gender Equality and Empower Women), target number four states , "Eliminate gender disparity in primary and secondary education, preferably by 2005, and to all levels of education no later than 2015."

 

UNIFEM states that the MDGs are not meant to be treated as a whole new agenda for women's human rights, but rather they are a new vehicle for Beijing and CEDAW implementation. As UNIFEM Executive Director Noleen Hayzler writes, "By using CEDAW and Beijing as the lens through which the MDGs are understood and implemented, principled conviction and development effectiveness can be brought together in a powerful way."[9]

 

Moving Forward and Sliding Backward

 

CEDAW sets forth a legal framework for eliminating discrimination and promoting equality of women in society. The Beijing Platform, in turn, expands the obligations of CEDAW and provides a comprehensive agenda for change. The Millennium Development Goals set out quantitative goals and a specific timeframe within which they should be achieved. The integration of these three processes provides a coordinated framework within which gender equality can be achieved -- with the appropriate commitment and determination of both governments and civil society.

 

In its statement commemorating the 25 th anniversary of the adoption of CEDAW, the CEDAW Committee noted progress that has been made in legislative reforms, awareness raising and the establishment of national machineries to oversee implementation of CEDAW in many countries, but also noted some of the very difficult challenges that impede full realization of the goals of the treaty. In particular, the Committee noted the continued existence of discriminatory laws, social norms, cultural practices and other impediments to women's enjoyment of their human rights in societies around the world, as well as insufficient political will, the under-representation of women in decision-making positions, and a lack of awareness of the rights enjoyed by women.

 

These three processes can provide mutual support and encouragement for each other, and resources committed to each process will ultimately impact the success of all three. But this will not happen unless each country commits itself and its resources to realizing these goals.

 

CEDAW, the Beijing Platform and the MDGs have helped to define certain categories of gender-equality and have helped to create a structural and rhetorical discourse within which gender equality can be discussed. The hope, however, is that the multidimensional levels to achieving women's equality and promoting their empowerment will be recognized and addressed not only structurally, but practically and that the aspirations and obligations of these processes will be implemented on the ground to create real change and de facto equality for women and men everywhere.

 

 

 

About the author:

 

Hadar Harris is the Executive Director of the Center for Human Rights and Humanitarian Law at American University Washington College of Law in Washington, DC.

 

[1] Regional bodies, such as the Inter-American, European and African systems for the promotion and protection of human rights have also adopted specific conventions and declarations aiming to promote gender equality and to eliminate discrimination.

 

[2] For more information about CEDAW see www.un.org/womenwatch/daw/cedaw.

 

[3] UN Doc. HRI/GEN/2/Rev.1/Add.2, paragraphs G.1 and G.2.

 

[4] For more information about the Beijing Platform for Action see www.un.org/womenwatch/daw/Review/english/49sess.htm.

 

[5] Mission Statement of the Beijing Platform for Action, paragraph 1.

 

[6] Only ten countries which adopted the Beijing Platform did not also ratify CEDAW.

 

[7] For more information on the Millennium Development Goals see www.unmilleniumproject.org.

 

[8] U.N. Doc. A/RES/55/2, paragraph 20.

 

[9] Pathway to Equality: CEDAW, Beijing and the MDG (2005).