Applying Principles of CEDAW Application
An analysis of the CEDAW Convention reveals that its provisions can be broadly allocated to two groups: those which set the principles through which the CEDAW Convention should be applied (Articles 1-4) and those which enshrine actual rights and prohibit violations of those rights (Articles 5-16). In order to understand how the provisions relating to health or education or political participation, for example, ought to be applied, it is necessary to be aware of the spirit through which the CEDAW Convention should be applied and how this treaty defines discrimination and provides for the realisation of women's equality.
Although the principles and provisions of the CEDAW Convention are explained in a separate section, this section in full contains supplementary information that may be useful when preparing information on potential communications and inquiries.
Understanding Discrimination and Equality: Breaking down the language of CEDAW Article 1
The CEDAW Convention requires us to understand the concept of discrimination in its broad sense. It seeks recognition for forms of discrimination that are not so obvious or direct. It points out, for example, that in areas where women face disadvantages not applicable to men, applying a neutral, narrow rule providing for equality of access for women and men may still constitute discrimination. According to the spirit of the CEDAW Convention, the elimination of all forms of discrimination against women is necessary to ensure substantive (real) equality between men and women. Therefore, an understanding of the framework of discrimination is a starting point for applying the provisions of the CEDAW Convention to address actual situations comprehensively.
When preparing a communication or inquiry, it may be helpful to consider the elements of Article 1 of the CEDAW Convention. It is important to note that each word in the definition is crucial in identifying different manifestations of gender discrimination.
Direct and Indirect Discrimination
The CEDAW Convention's includes both direct (intended) and indirect (unintended) discrimination. From the outset, Article 1 states that discrimination occurs when the distinction, exclusion or restriction made on the basis of sex has the "intention" or "effect" of nullifying or impairing the recognition, enjoyment or exercise by women of their rights.
Women as compared to men face many obstacles sanctioned by culture and religious practice and by entrenched male interests in key institutions such as political parties, trade unions, religious institutions and the courts; hence, neutral rules or laws may disadvantage them. Not putting in place enabling conditions nor altering rules to enable women to access their rights and opportunities is considered discrimination under the CEDAW Convention, because of its discriminatory effects even if such was unintentional.
De jure and De facto Discrimination
Discrimination can stem from both law (de jure) or from practice (de facto). The CEDAW Convention recognises and addresses both forms of discrimination, whether contained in laws, policies, procedures or practice.
Past and Present Discrimination
The CEDAW Convention also recognises not only current discrimination but also historic or past discrimination, its variations and results. This is also commonly referred to as structural discrimination.
Where a previous policy or practice has resulted in entrenched, accepted or structured discrimination against women, it is recognised that measures must be taken to address the inherent disadvantage that results.
Discrimination women experience in one field may affect their rights and opportunities in another. For example, discrimination in access to education and training might result in lack of access to decision-making in the area of public policy. Discrimination in access to credit opportunities may be directly related to discrimination in civil laws ownership of property, inheritance and ability to enter into contracts.
Permitted Distinctions: When is it not discrimination?
The definition of discrimination also provides a guide for assessing when different treatment for women is permissible. The CEDAW Convention requires both equality of opportunity (de jure equality) and equality of results (de facto equality). To bridge the gap between the two, the issue of access and ability to benefit from the opportunity is critical (equality of access). Barriers to equality of access to opportunities and equality of benefits may lie in ideological, material and institutional causes and need to be identified on the basis of their discriminatory implications. Therefore, enabling conditions and temporary special measures (Article 4) for women are not discriminatory measures and in fact, assist in achieving and accelerating de facto equality.
Intersectional or Contextualised Approach to Discrimination
The intersectional approach realises that discrimination that arises from a combination of grounds produces a kind of discrimination that is unique and distinct from any one form of discrimination standing alone. It takes into account the historical, social and political contexts and thus recognises the unique experience of women who have been targets of discrimination on more than one ground. That is, women who have been discriminated because of their sex and other grounds such as race, ethnicity, age, disability-status, citizenship, marital status, religion, sexuality, socio-economic status, etc.
State Obligations and the CEDAW Convention: General undertakings
One of the main principles informing the CEDAW Convention is the principle of State obligation. By becoming parties to the CEDAW Convention, States undertake responsibilities towards women from which they cannot withdraw. The forms of discrimination or violations on which a communication or inquiry must be based will have to be linked to the principle of State obligation. In this connection, it is important to emphasise that the views and recommendations of the CEDAW Committee when considering communications and inquiries under the OP-CEDAW would be aimed at strengthening the domestic implementation of the CEDAW Convention.
In essence, Articles 2-4 set out the broad principles of State obligation, while Articles 5-16 provide the substance and context to which these obligations of positive and negative actions of the State should be applied.