“CEDAW
Achievements and Challenges: Discussion on Implementation of CEDAW
in Commonwealth Countries Policies and Legislation –
Progress, gains, constraints and key priorities
(with special reference to selected Commonwealth countries)
Shanthi
Dairiam, IWRAW Asia Pacific
Presented
at the Gender and Human Rights Expert Group Meeting. 17-19 February
2004, London, UK
Organised by the Commonwealth Secretariat
Introduction
The UN General Assembly
adopted the CEDAW Convention on 19th December 1979. It came into
force as a treaty on 3rd December 1981; thirty days after the
twentieth member nation ratified it. Currently, CEDAW is one of
the most ratified treaties. To date[1], 177 countries have ratified
or acceded to the CEDAW Convention, which is a comprehensive bill
of rights for women, and combines concerns that had been hitherto
addressed in an ad hoc manner through the UN system. State compliance
with the requirements under the CEDAW Convention is monitored
by the CEDAW Committee. This process operates out of the United
Nations in New York. States Parties to the CEDAW Convention are
obligated to report to the Committee one year after ratification,
and thereafter every four years. On reviewing the reports, the
CEDAW Committee issues a set of recommendations for implementation
called Concluding Comments, to the States Parties concerned. In
working with this Convention, it is essential to understand the
obligations of the State under international human rights treaty
law.
The
Dynamics of Human Rights Treaty Law
Human rights treaty
law imposes obligations that are legally binding on any state
that is a party to it. In this regard, states parties to the treaties
are voluntarily surrendering their sovereignty and submitting
themselves to international scrutiny as well as committing themselves
to reordering domestic law and policy, as it touches on matters,
which is the subject of the treaty concerned, according to universal
and international standards.
A treaty is a legal
agreement between two or more countries and is a source of international
law. Treaties can be entered into on a number of issues such as
trade, delineation of borders, human rights etc. Traditionally
international law used to be defined as the law governing relations
between nation states.[2] Since under this definition, international
law did not regulate the human rights of individuals vis-à-vis
the state of their nationality, that entire subject matter was
deemed to fall within the exclusive domestic jurisdiction of each
state.[3] Over the years, the doctrine of humanitarian intervention
recognised as lawful, the responsibility of one state to stop
the gross maltreatment by another state of its own citizens.
As a result, today
we have an established principle of international law that a state
may voluntarily limit its sovereignty by treaty ratification and
thus internationalise a subject that would otherwise not be regulated
by international law. For example, if one state concludes a treaty
with another state in which they agree to treat their nationals
in a humane manner and to accord them certain human rights, they
have to that extent internationalised that particular subject
matter.[4]
Specific
Obligation of the State under the CEDAW
The outcome that governments
have to work towards under the CEDAW Convention is to ensure that
women will enjoy and be able to exercise all human rights and
fundamental freedoms in the political, economic, social, cultural,
civil or any other sphere on the basis of equality with men. This
means that there must be both de jure and de facto equality rights
for women (Articles 1, 2a, and 3).
The norm of equality
that the Convention imposes is that of substantive equality. This
is a broad approach to equality that requires equality in the
substance of the law, equal protection of the law and equal benefit
of the law. A related norm is that of non-discrimination that
requires the elimination of direct and indirect discrimination.
The latter means the elimination of laws and practices that have
a discriminatory effect though no discrimination was intended.
All efforts to bring about equality between women and men need
to be based on these understandings of equality and non-discrimination.
The means by which
this is to be accomplished is given in Articles 1-5. Obligations
under these articles include the following:
to incorporate
the principle of equality and non discrimination of men and women
in the legal system, abolish all discriminatory laws and practices,
and adopt appropriate ones prohibiting discrimination against
women (Articles 2a, b, f, g)
to establish
tribunals and other public institutions to ensure the effective
protection of women against discrimination: mechanisms for enforcement
(Article 2c)
to ensure
elimination of all acts of discrimination against women by the
public sector as well as by the private sector including persons,
organisations or enterprises (Articles 2d and e)
to implement
programmes, make relevant institutional arrangements and any other
laws necessary that will enable women to exercise the equality
rights given in the law (Article 3)
to accelerate
the achievement of de facto rights by implementing temporary special
measures such as affirmative action (Article 4)
to eliminate
cultural and traditional practices and attitudes including stereotypical
roles for women and men (Article 5)
In conclusion
we could say that the government has to ensure the applicability
of the norms and standards of the Convention at the domestic level
and as a quick reference of indicators to assess the implementation
of the Convention in this manner, the following questions may
be asked:
Has the Convention
been incorporated at the national level? This step may be necessary
in countries whose legal system needs it. [5] Legal opinion is
that only then may the norms and standards of the Convention,
should they be differentiated from the exiting norms and standards
at the national level, be legally applied to provide equality
rights for women.
Has the definition
of substantive equality and the definition of discrimination as
given in Article 1 of the Convention been adopted in the constitution
or other relevant laws?
Has any other
appropriate legislation been enacted to make discriminatory acts
in the public and private sectors actionable? Such legislation
could take the form of an Equal Opportunities Act or an Anti-Sex
Discrimination Act (Article 3)
Has there
been a review of all existing legislation and have all discriminatory
provisions in the law been eliminated?
As a result
of this review has any other relevant laws such as laws to protect
women against domestic violence or sexual harassment been enacted
and enforced?
Are there
programmes to combat violence against women, which is identified
under the Convention as an extreme form of discrimination against
women?
Have policy
directives been issued to the public and private sectors to adopt
codes of practice that will help to eliminate discriminatory practices
and to develop equality plans for the acceleration of the de facto
equality status of women?
Has the Convention
been translated and widely disseminated at all levels of the public
and private sectors to raise awareness of the obligations under
the Convention?
Have all relevant
government officers in all sectors as well as the judiciary and
relevant legal personnel been trained to carry out their obligations
under the Convention?
Is the Convention
applicable in the courts? In other words has the Convention been
cited in the courts to gain equality rights for women?
Has the government
put in place a plan to create an enabling environment for the
fulfilment of women’s rights by addressing obstacles that
may arise out of culture and traditional practices as well religious
views?
Has an inter-sectoral
monitoring mechanism been established to gather data on compliance
with the obligations under the Convention and to assess effectiveness
of laws and policies meant to promote women’s equality?
Is there an institution given over all responsibility to coordinate
efforts to implement the CEDAW Convention and does it have the
mandate and capacity and mandate to do this?
Is there adequate
data to assess progress made in the implementation of the Convention
such as data disaggregated by sex and data that needs to be collected
to identify obstacles to the achievement of de facto rights for
women and to assess the effects of laws and policies on women?
Finally, is
there a consolidated plan for implementation that sets out bench
marks for progress, has plans for special programmes to enable
women to access rights given in the law, delineates responsibility,
identifies inter-sectoral cooperation, allocates budgets, integrates
capacity building measures for the implementers and is this plan
integrated into the mainstream national development plans?
Lack of a
comprehensive and holistic plan to implement CEDAW: CEDAW principles
not integrated into domestic law
If the above set of
questions is used to assess the status of implementation of the
CEDAW then there are no examples of any Commonwealth country that
has put in place a comprehensive and holistic plan to implement
CEDAW.[6] For instance we have no examples of any country that
has taken steps to incorporate the principles of CEDAW into municipal
legislation so CEDAW is not directly applicable, although in the
case of New Zealand and Canada definitions reflecting substantive
equality or non discrimination as provided for in the CEDAW Convention
have been integrated into their respective human rights acts.
There are also examples from New Zealand, India and Nigeria where
CEDAW has been cited in the courts.
New Zealand and India
were particularly commended by the Committee by the review. In
the case of New Zealand it was pointed out that the courts had
taken international treaties including CEDAW into considering
domestic cases and in India, the Committee commended the contribution
made by the Supreme Court in developing the concept pf social
action litigation and a jurisprudence integrating the Convention
into domestic law by interpreting Constitutional provisions on
equality between women and men. However, the use of international
treaty standards in courts has been sporadic in many of the countries,
and this has not been sufficient to change the culture of the
courts so that arguments of obligation under treaty law becomes
the norm. In other words there has only been piecemeal achievement,
no holistic law reform much less a cohesive plan for CEDAW implementation.
CEDAW not the basis
of law or policy reform and lack of clarity on CEDAW as a human
rights instrument
Concerns in this regard
include the fact that the principles of the CEDAW Convention are
not necessarily used to inform interventions such as law reform,
which could benefit women. An example is the adoption of the Human
Rights Act 1998, in the United Kingdom. While the adoption of
the Human Rights Act is a positive move, the concern is that it
is based on the European Convention on Human Rights and Fundamental
Freedoms which does not provide the full range of women’s
human rights incorporated in CEDAW. For example, it does not provide
expressly for equality nor does it provide for positive obligations
for governments to eliminate indirect discrimination and to implement
temporary special measures.
Of further concern
is the lack of appreciation of CEDAW as a human rights instrument.
The Committee was particularly concerned with the replies of the
United Kingdom expressing the view that it considers the obligation
under CEDAW to be much more programmatic in nature than the European
Convention on Human Rights and Fundamental Freedoms and thus difficult
to introduce into common law.
There are national
policies for women, plans of action for women, initiatives for
gender mainstreaming budgeting etc. Of interest is The United
Kingdom’s 1999 budget which has a strategic orientation
resulting in increased child benefit and family tax credit and
mainstreaming of the budget to benefit women.
But in the efforts
of all countries, it is not clear that the norms and standards
of CEDAW are used as a framework. This is compounded by States
Parties lack of understanding of the meaning of equality women
and so these efforts are based on protectionist or welfarist approaches.
Nor is there a monitoring of these efforts.
Piece
meal reform and weak implementation
Because of the lack
of a holistic approach we can see that sometimes law reform in
one area is negated by conflicting laws, there is a lacunae in
the law that has negative consequences in another area or there
is conflict because of dual or even triple legal systems, civil
and religious or customary, as in the case of India, Sri Lanka,
Malaysia and Nigeria. In India, constitutional guarantees for
equality do not regulate private sector. The Committee has therefore
recommended that India enact an anti sex discrimination act to
make the standards of CEDAW and the guarantees of the Constitution
applicable to non-state action and in action.
There is certainly
considerable evidence of piecemeal law reform. These include reform
in the United Kingdom such as new legislation in areas such as
the national minimum wage, the new outcome oriented budgetary
reform, the commitment to family friendly employment and legislation
for the protection of women namely, the Anti Sex Discrimination
Act 1996, Protection from Harassment Act 1997 and the Sex Offenders
Act 1887. New Zealand had enacted the Employment Relations Act
2000, which tough not focusing explicitly on women would benefit
women. It had also established a Pay and Employment Equity Task
Force to make progress in the area of pay and equality in employment
in the public sphere and established paid parental leave. Canada
had created Domestic Violence Family Courts. India has banned
sex selective abortion. Nigeria has put in place new federal laws
supporting equality, the Trafficking in Persons Prohibition, Law
Enforcement and Administration Act, 2003, and the Child Rights
Act, 2003. There are also a number of state laws prohibiting discrimination
against women in areas such as female genital mutilation, widowhood
practices, and early marriage. Trinidad and Tobago has passed
Equal Opportunity Legislation and is awaiting the appointment
of the Equal Opportunity Commission and Tribunal. (2002) Legislation
preventing employers form discriminating against women on the
basis of pregnancy has been passed and marital rape is a crime.
But even where there
are good laws, implementation and enforcement is weak and the
Committee has consistently pointed out to the need for monitoring
to see if there is a de facto enjoyment of rights by women.
Discrimination
persists
Basically there has
not been much of an attempt to make comprehensive inventory of
discriminatory laws with a view to their revision or repeal and
in many countries discrimination in the law and practice remains.
In Nigeria, the Constitution still contains discriminatory provisions,
and social acceptance of harmful traditional practices including
widow hood practices, female genital mutilation, child marriage
make their elimination difficult. In Trinidad and Tobago, the
Committee noted that violence against women is deeply entrenched
and perhaps tolerated by society. Other areas brought to the attention
of the Committee are the need in India for a holistic health plan
and the need to arrest maternal and infant mortality rates which
are among the highest in the world. The committee also expressed
concern at the lack of law reform with regard to the personal
laws of different religious groups in India.
Obligations must be
fulfilled evenly for all: Need for a unified strategy and policy
for implementation of all provisions of CEDAW
The Committee has also
drawn attention to the fact that in spite of laws and policies
to protect the rights of minorities, at the de facto level, governments
have been unable to fulfil rights or to monitor and provide adequate
remedies to the violations of the rights women from minority and
other disadvantaged groups such as the Dalits of India, the Maoris
of New Zealand or the women of ethnic minorities in the United
Kingdom. Besides legislation, more positive action was needed
by governments to protect the rights of these women.
Furthermore, the Committee
pointed out that there was very little information in the report
of the United Kingdom on the implementation of CEDAW in the Isle
of Man, the Turks and Caicos Islands, the Virgin Islands and the
Falkland Islands. The United Kingdom needs to pay serious attention
to its obligations as State Party to CEDAW with regard to its
over seas territories
It was noted that in
the United Kingdom there is devolution of power to the Scottish
Parliament, The Northern Ireland assembly, and the National Assembly
for Wales. It was reported that with regard to women, detailed
post devolution arrangements would be worked out by each of the
respective assemblies. The Committee was concerned that under
these circumstances, the protection of women may not be even.
They pointed out that the State must ensure that there is a unified
strategy and policy for implementation of all provisions of CEDAW
so that all women in the entire territory of the state party can
benefit equally to fulfil de jure and de facto equality rights
for women.
Weak
representation of women
The Committee has consistently
pointed out to the weak representation of women in decision making
in almost all Commonwealth countries both developed and under
developed. New Zealand, however, is one country in which women
held four constitutional positions, namely that of those of the
Governor General, the Prime Minister, The Attorney General and
the Chief Justice, while the proportion of women Ministers of
the Crown and the representation of women at all levels of the
Ministry of Foreign Affairs and Trade had risen considerably.
However women were poorly represented in parliament and local
government and did not hold adequate numbers of positions as chief
executives in the public sector.
Weak reporting record
and lack of data collection
Reporting is seldom
on time and there is inadequate data collection for purposes of
monitoring the implementation of CEDAW. This means there is no
monitoring of the effects of laws, policies and programmes, no
indicators of de facto realisation of women’s rights and
no knowledge of obstacles to the de facto realisation of women’s
rights. There also does not seem to be plans to implement CEDAW’s
Concluding Comments.
Weak
institutions
There are improvements
in the infrastructure of the national machineries for women in
all the countries concerned but these are weak. Institutional
arrangements for promoting women’s rights lack the required
technical capability or do not have the required influence to
be taken seriously.
An example of this
would be India which has put in place many initiatives for the
protection of women’s rights such as a National Commission
on Women with state level commissions having the responsibility
for developing action plans on gender and proposals for law reform.
But the CEDAW Committee and the NGOs have observed that such plans
adopt a welfarist approach and the proposals for law reform are
not adopted by the government.
Technically too the
national machineries and plans of many countries suffer from a
lack of resources, and a lack of time framed targets and or monitoring.
Development
assistance as part of State obligation
Developed countries
have an additional role that of assisting developing countries.
New Zealand was commended for its policy of strengthening the
promotion and protection of women’s human rights and of
integrating a gender dimension into development cooperation programmes
particularly in the Pacific region.
Conclusion
In many countries,
while there is ad-hoc reform of laws and creation of interventions
for the advancement of women such as plan of action or mainstreaming
and gender budgeting, there does not seem to be a conscious application
of CEDAW at the domestic level. CEDAW is not the basis of law
or policy reform. There is also a lack of clarity on CEDAW as
a human rights instrument. To begin with, CEDAW principles are
not integrated into domestic law. Hence CEDAW is not directly
applicable in the courts. There is a lack of a comprehensive and
holistic plan to implement CEDAW and whatever reform is put in
place suffers from weak implementation due to lack of monitoring,
inadequacy of resource allocation, lack of capability and weaknesses
of the institutions concerned. Discrimination therefore persists.
Obligations must be fulfilled evenly for all including minorities,
overseas territories and even where there is devolution of powers.
Hence there is a need for a unified strategy and policy for implementation
of all provisions of CEDAW. Almost all the reporting countries
show a weak reporting record and lack of data collection for monitoring
and report writing. Finally state obligation also includes ensuring
a gender dimension in the development assistance that a State
Party may render.
Recommendations
States must take steps to incorporate CEDAW into domestic law
so CEDAW is directly applicable in the courts. Capacity has to
be built of all branches of government, vertically and horizontally
to use CEDAW as a framework for all interventions such as law
reform, plans of action, programmes and services, gender mainstreaming
as well as gender budgeting. This will help introduce a rights
approach into these interventions using the lens of CEDAW: substantive
equality and non-discrimination. Special efforts must be made
to train judges and lawyers to apply international human rights
jurisprudence with special reference to CEDAW jurisprudence in
court cases. Capacity building for all branches of government
as well as for women’s groups must focus on the creation
of clarity on the meaning of substantive equality and indirect
discrimination as embedded in the CEDAW. The capacity of women
must be built to form constituencies for advocacy and to claim
their rights and to draw accountability from governments. Data
collection must be consistent, sustained and refined to include
indicators that will surface de facto situation of women and to
identify obstacles to de facto equality.
CEDAW report writing
is a useful tool for the state to monitor itself and must be taken
seriously. Reports must be submitted on time to ensure effective
and progressive implementation of CEDAW. The state must draw up
a comprehensive plan to implement CEDAW, including the concluding
comments and special attention needs to be paid to disadvantaged
groups of women. Adequate institutional arrangements including
mechanisms for inter-sectoral cooperation and budgetary allocation
must be put in place. The state must form partnerships with NGOs
for needs identification, data sharing and identification of obstacles
to de facto equality.
Finally, a positive
culture for human rights and women’s equality must be created.
CEDAW must be popularised and a plan put in place to eliminate
negative elements of culture and stereotyping of women and men.
ENDNOTES
[1] As of
April 2004.
[2] Buergenthal T. 1988. International Human Rights in a Nutshell.
West Publishing Company.
[3] ibid.
[4] Henkin, Human Rights and Domestic Jurisdiction. In T. Buergenthal,
Human Rights, Human Rights, Internationakl Law and the Helsinki
Accord 21 (1977). Cited in Buergenthal T. International Human
Rights in a Nutshell.
[5] Depending on the legal system and the provisions of the Constitution,
treaties can be self executing in that no further legislation
is required to make the treaty applicable at the national level
or, enabling legislation is required to make treaty law applicable.
However, if there is political will, the lack of enabling legislation
may be an obstacle for direct applicability of treaty law in the
courts but it should not be an obstacle to provide definitions
of equality or discrimination or to amend legislation according
to the norms and standards of the Convention.
[6] It is not the aim of this paper to provide a comprehensive
assessment of CEDAW implementation in Commonwealth countries,
rather what will be attempted to provide brief snap shots of achievements
and challenges in selected countries. These countries are Canada,
India, Nigeria, Trinidad and Tobago, the United Kingdom and New
Zealand. The information for this analysis is taken from the respective
Concluding Comments of the CEDAW Committee. The years of the review
of these countries and the reference to the Concluding Comments
which are United Nations documents is as follows: Canada, 2003.
A/58/38 (Part 1). India, 2000. A/55/38 (Part 1). Nigeria, 2004.
A/59/38 (Part 1). The United Kingdom, 1999. A/54/38/Rev 1 (Part
2). Trinidad and Tobago, 2002. A/57/38 (Part 1). New Zealand,
2003. A/58/38 (Part 2)
