Impact of Recommendations
In ratifying the CEDAW Convention and OP-CEDAW, States parties have already assumed legal obligations to remedy violations of rights enshrined in the former. The CEDAW Committee is not a judicial body, however, and its views are of a recommendatory rather than obligatory character. That said, although not legally enforceable within the jurisdiction of States parties, recommendations of the CEDAW Committee are nonetheless authoritative and highly persuasive in character.
Recommendations from the CEDAW Committee are valuable tools for influencing the recognition, promotion and realisation of women's rights at all levels: legal, political and practical.
The recommendations of the CEDAW Committee will in essence form jurisprudence i.e. a body of case law that can be used by the committee and others in interpreting the provisions of the CEDAW Convention and clarifying State obligations. Given that the CEDAW Convention and the OP-CEDAW comprise the sole gender-specific international complaints mechanism, this is of the utmost importance both for the legal development of women's rights at the international level, and for the progressive interpretation and enactment of discrimination law at the national level.
As more cases of violations of women's human rights are brought before the CEDAW Committee for their consideration, more precise definitions of what constitutes a violation of a right enshrined in the CEDAW Convention will emerge. Further, given that violations may be based on one or more of the rights enshrined in the CEDAW Convention, it may be assumed that as cases are brought, recommendations will touch on many, if not all areas, of this convention. Therefore, although most States will have provisions, either constitutional or legislative, which prohibit discrimination on the basis of sex, the concept of discrimination, how it should be recognised and interpreted and how it might be remedied will be investigated and documented. This documentation will in turn be vital in influencing the enactment, execution and interpretation of laws within States parties.
Jurisprudence from the CEDAW Committee can be employed by advocates in national cases. Such uses might include:
- Assisting in and influencing the interpretation of constitutional or statutory provisions in accordance with the spirit of the CEDAW Convention. Through this any ambiguities in national law can be resolved in a way which complements and does not conflict with the provisions of the CEDAW Convention; and
- Providing legal precedents, i.e. established case law, around the provisions of the CEDAW Convention amounting to indicators as to how cases of a similar nature should be resolved. Such precedents, employed in legal arguments, can prove invaluable in convincing a court of the correct and just interpretation of what constitutes a violation of women's human rights and how those violations might be appropriately remedied.
In providing detailed guidance to governments as to the nature of their obligations under the CEDAW Convention and how these obligations might be met, the CEDAW Committee, through comments, views and recommendations, would develop improved understanding of the rights and obligations in the convention. Recommendations made under the OP-CEDAW, in creating an avenue for the CEDAW Committee to interpret the CEDAW Convention in greater detail, would constitute, for example, guidance as to where the amendment of legislation would be required to stop discriminatory practices and where the implementation of affirmative action measures would be appropriate.
Through issuing recommendations in response to concrete allegations, the CEDAW Committee will set tangible and identifiable standards of non-discrimination, equality and State obligation. In turn, this will encourage the domestic implementation of the provisions of the CEDAW Convention by addressing specific views and recommendations to particular impediments to the full domestic implementation of this treaty.
Recommendations issued at the international level to a States party accused of violating the rights of a woman within its jurisdiction can and should be employed by the legal system and civil society to practically impact the lives of women. This need not be limited to the lives of women within the States party to whom the recommendation is issued. There are no restrictions on lawyers, activists, academics or organisations using a recommendation addressed to another States party, to highlight women's rights violations in their own jurisdiction and identify how this might be remedied. Ways in which recommendations can be employed to ensure a practical impact include:
- Creating public awareness of human rights standards prohibiting discrimination against women. The OP-CEDAW requires States to make this treaty and its procedures as widely known as possible. Communications and inquiries under the OP-CEDAW will receive publicity, and this will increase public awareness of it and the CEDAW Convention.
- Building awareness among women of their rights as claimants. As the CEDAW Committee addresses communications and inquiries and identifies those that disclose violations of women's rights, more concrete examples of what constitutes a violation under the CEDAW Convention will emerge. Examples of such litigation can be used not only to increase awareness among women that certain actions amount to rights violations but that further, it is a woman's right to have these violations addressed.
As already mentioned, there are no legal mechanisms available by which to enforce implementation of the recommendations of the CEDAW Committee to remedy women's rights violations within the States party concerned. However, in practice, the political and moral weight of views of human rights treaty bodies, including the CEDAW Committee, have often proved sufficient to persuade States to implement their views and recommendations domestically.
At one level, a recommendation from the CEDAW Committee is a recognition from an international forum that a States party has been unable to fulfill its obligations under international human rights law. As such it may be very persuasively used in national courts and mechanisms. On the other hand, a public acknowledgement, both internationally and nationally, of women's rights violations that take place within the jurisdiction of a States Party can often be a useful means for raising awareness and mobilising civil society to demand, from the domestic platform, those rights that the State has pledged to uphold.