The Convention on the Elimination of all Forms of Discrimination against Women (the CEDAW Convention) is a human rights treaty for women. The UN General Assembly adopted the CEDAW Convention on 19th December 1979. It came into force as a treaty on 3rd September 1981; thirty days after the twentieth member nation became a States party to it. The CEDAW Convention is monitored by the CEDAW Committee which operates out of the UN in New York.
CEDAW is one of the most highly ratified international human rights conventions, having the support of 188 States parties. When governments become States parties to a convention, they can enter reservations by identifying particular elements of a treaty they will not be bound to. State parties may also make declarations, which have the same effect.
The Convention is being continually updated to include new insights and new issues that are brought to the CEDAW Committee’s attention, through the formulation of General Recommendations by the committee. It does not automatically confer rights on women. Its promise can only be delivered if we learn to use it effectively in practice to set goals, identify needs, frame laws, policies and programmes and evaluate action.
The notion of State obligation has to be fully exploited. By ratifying the CEDAW Convention, States are saying that they:
- Recognise discrimination and inequality.
- Recognise the need for State action.
- Commit themselves to do certain things and not do certain things.
- Are willing to be held accountable at national and international levels.
Together with the State, we have to develop criteria for State action and responsibility. We have to learn to use the CEDAW Convention as an advocacy tool to interpret equality, call for action and use it to define rights, interpret needs, identify obstacles and actions to be taken by the State, establishing criteria for success and documenting impact of state action.
The substance of the Convention is based on three interrelated core principles: equality, non-discrimination and State obligation.
PRINCIPLE OF EQUALITY
The concept of equality is traditionally understood to mean “the right to be equal to men”. This becomes problematic when it is extended to the understanding that women must be treated exactly like men if they are to gain equality with men. It implies that women must be treated according to male standards, obscuring the ways in which women are different from men and how they will be disadvantaged because of these differences.
Initiatives for the realisation of women’s rights need to compensate for or cater to the difference, disparity or disadvantage, rather than a “one size fits all” approach. It means taking into account the ways in which women are different from men, and ensuring that these differences are acknowledged and responded to by State measures toward achieving equality. Furthermore, real equality goes beyond formal (de jure) equality – women and men must be equal in fact (de facto) as in law.
Substantive Equality and Difference
The CEDAW Convention promotes the substantive equality model and consolidates two central approaches to equality:
- Equality of opportunity in terms and access to the resources of a country, to be secured by a framework of laws and policies, and supported by institutions and mechanisms for their operation.
- Equality of results upon access and opportunity, toward achieving real change for women. State parties to CEDAW have a responsibility to ensure the practical realisation of rights, and are thus obliged to show results
The concept of substantive equality arose out of the recognition that formal equality may not be sufficient to ensure that women enjoy the same rights as men. An ostensibly gender-neutral policy, while not excluding women per se, may result in a de facto discrimination against women. It does not consider:
- Sex or biological differences whereby, for example, women bear children, not men.
- Gender differences or socially-created differences resulting in norms and assumptions about women and men’s roles in society, and their capability and need. This in turn influences both policy-making and its implementation.
Differences between women and men whether based on biological (sex) difference or socially created (gender) differences results in women’s asymmetrical experience of:
- disparity, and
Responding to Gender Difference
Approaches that take into account differences between women and men may not all be immediately favourable to women. In fact, they could be discriminatory in effect, if not in intention. To be able to intervene effectively in favour of women’s equality, it is important to have a conceptually sound understanding of what or why differences exist between women and men.
There are two ways of responding to gender differences in policy or approach:
- The protectionist approach which, while recognising differences, seeks to curtail or curb women’s activities or freedoms with the rationale that the aim is to “protect” women from harm or wrongdoing. This approach does not challenge gender discrimination, but reproduce it in the guise of protecting women.
- The corrective or substantive approach which recognises that in order to redistribute benefits equally between women and men, measures to promote women’s rights must transform the unequal power relations between women and men in the process. There should not only be equal opportunities for women but also equal access to those opportunities.
The substantive equality approach recognises that women and men cannot be treated the same, and for equality of results to occur, women and men may need to be treated differently. The challenge is to know when to take note of difference, and to decide on appropriate measures for different treatment that will facilitate equal access, control and equal result. Such measures will have to be assessed to ensure they promote autonomy rather than protection or dependency. This has to be done without compromising the claim for equal rights and equality as a legal standard.
PRINCIPLE OF NON-DISCRIMINATION
The principle of non-discrimination is based on the understanding that discrimination is socially constructed rather than “natural”. This recognises the need and paves the way for concerted action against inequality and the institutional mechanisms which perpetuate it.
The definition of discrimination in Article 1 of CEDAW can be summarised as:
Any act of distinction, exclusion or distinction which has the intent/purpose or effect of nullifying, impairing or denying the enjoyment of rights by women.
This definition helps us identify the weaknesses of formal or so-called neutral laws and policies because they do not recognise that women continue to suffer from the effect of past or historic discrimination. A law or policy may not have the intention of denying a woman the enjoyment of rights but if it has the effect of doing so then it constitutes discrimination.
Correcting Continued Discrimination
Despite legal rights being granted to women in many countries, discrimination persists, and women’s access to legal rights are curtailed by denial of women’s rights to economic and social development. Therefore CEDAW bridges the traditional divisions between civil and political and socio-economic rights, mandating both legal and development policy measures to guarantee the rights of women.
The uniqueness of the CEDAW Convention rests on core principles which:
- demand that power relations between women and men at all levels, from family, to community, market and state;
- discard the distinction between the private and the public spheres, by recognising violations of women in the private sphere, as violations of women’s human rights;
- recognise the negative impact of social, customary and cultural practices which are based on the perceived inferiority or superiority of either sex or on stereotyped roles for women and men.
The Convention has wide applicability in identifying discrimination and measures for eliminating discrimination.
PRINCIPLE OF STATE OBLIGATION
When a country becomes a State party to CEDAW, it voluntarily accepts a range of legally binding obligations to eliminate discrimination against women and bring about equality between women and men.
The Responsibility of the State
A State party to CEDAW essentially enters into a contract with all other States parties that:
- It will abide by norms and standards collectively agreed upon by the States parties
- It is offering itself to a scrutiny by an international expert committee on the basis of these norms and standards.
Every State party is obliged to present an initial report to the United Nations one year after accession on the obstacles to the equality status of women and the actions it intends to take to remove such obstacles. Thereafter, the States party is required to submit a periodic report on the progress made every four years. Under the CEDAW treaty, the State has responsibilities to women from which it cannot withdraw, and to which it will be held accountable at the national and international levels.
Some basic principles of State obligation are:
- An obligation of means through the law, or the formal guarantee of the provision of rights.
- An obligation of results, or ensuring the practical realisation of rights.
Articles 2-4 of CEDAW spell out the broad State obligation:
i) Article 2 obligates the State to enact a policy of non-discrimination through legislation, institutional mechanisms and regulatory policies.
ii) Article 3 obligates the State to promote equality through all appropriate means. This includes proactive measures and enabling conditions to ensure the full development and advancement of women.
iii) Article 4 obligates the State to put in place affirmative action to accelerate de facto equality.
Articles 5-16 provide substance and context in which the principles of State obligation have to be applied. These substantive articles may not show all the context of women’s lives, but the very fact that the CEDAW Convention obligates States to eliminate all forms of discrimination against women means that every context is included. Article 1 which defines discrimination helps us to include all contexts.
It is essential to have clarity on these principles if we are to use the CEDAW Convention as a tool to promote the advancement of women. These principles provide the framework for formulating strategies to advance the human rights of women and will give meaning to the articles of the convention. In fact, it might prove to be counterproductive to try and promote individual articles of the CEDAW Convention if they are not premised on an understanding of equality and non-discrimination as they are conceptualised in the treaty.