Influencing Impact of Recommendations

Although the CEDAW Convention creates legal obligations on States parties, individual remedies suggested by the CEDAW Committee do not have legally binding status. Enforcement of remedies and recommendations within States parties will, in many ways rely on publicity and persuasion rather than firm instructions regarding compliance. Therefore, the impact of recommendations will inevitably vary from communication to communication and from State to State. While some States parties will be prompt in taking action to implement recommendations and/or provide the remedies suggested by the CEDAW Committee, other recommendations may not have an immediate or extensive impact.

Factors which might influence the impact of a remedy suggested by the CEDAW Committee include:

The conflict between national and international law

In the same way that the ratification process for international conventions varies between States, so too does the impact of international jurisprudence in national courts. Although it is generally accepted that international law may influence domestic courts where there is uncertainty or ambiguity, some States parties may be more hesitant than others in executing at the national level, recommendations made in the international foyer. For example:

- The South African Constitution explicitly states in Section 233 on the Application of International Law:
"When interpreting any legislation, every court must prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law."

- Australian High Court decisions have noted the influence of international law on the development of domestic law and its importance in relation to domestic decision-making.
"…the opening up of international remedies to individuals pursuant to the… Optional Protocol [to the International Covenant on Civil and Political Rights]... brings to bear on the common law the powerful influence of the Covenant and the international standards it imports. The common law does not necessarily conform to international law, but international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights." (Mabo v Queensland (No 2) (1992) 175 CLR 1)

- Section 9 of the Nepal Treaty Act (1991) provides that any treaty to which Nepal is a States party is enforceable as national law. In case of disparity between a domestic law and a treaty, the latter will be given effect. Likewise, in the Supreme Court judgment in Reena Bajracharya v HMG [1], its confirmed decision mentioned that an international convention ratified by Nepal prevails over domestic Nepalese law.

- The English courts, however, have been less receptive to the application of international norms:
"…it is firmly established that international treaties do not form part of English law and that the English courts have no jurisdiction to interpret or apply them: JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry [1990] 2 AC 418. Parliament may pass a law which mirrors the terms of the treaty and in that sense incorporates the treaty into English law. But even then, the metaphor of incorporation may be misleading. It is not the treaty but the statute which forms part of English law. And English courts will not (unless the statute expressly so provides) be bound to give effect to the interpretations of the treaty by an international court, even though the United Kingdom is bound by international law to do so. Of course there is a strong presumption in favour of interpreting English law (whether common law or statute) in a way which does not place the United Kingdom in breach of an international obligation." R v Lyons & Others [2002] UKHL 44 Para 27

However, while questions concerning the hierarchy of international law over national legislation remain, with the increasing number of cases being taken to international institutions as a final port of call in seeking resolution, such questions are gradually being addressed and resolved by the internal structures and mechanisms of States parties. Therefore there is reason to be positive and proactive in ensuring that remedies allocation at the international level are enforced in the national arena.

Note: [1] Reena Bajracharya v HMG Writ No. 2812 of 1999, Supreme Court of Nepal

The Complexity of the Recommendation

Recommendations and remedies suggested by the CEDAW Committee will vary to suit the individual facts of the case. If a communication or inquiry is based on a failure of a States party to uphold a right contained in the CEDAW Convention, it may be that the CEDAW Committee's response will be limited to recommending that the States party recognise the right and facilitate access to it (e.g. recognising women's right to equal access to healthcare).

However, if a communication is based on a grave and continuing violation of a right (e.g. failure to adopt appropriate measures to prevent abuses against women employed in domestic work) a suitable remedy is likely to involve the dual action of repairing the damage and ensuring it will not reoccur for these or other women. Recommendations required to thoroughly address the issue might include a public investigation to establish the facts, bringing to justice the perpetrators, paying compensation to the victims and/or ensuring non-repetition of the violation through amending the law. Any or all of the above suggestions might require a greater level of action by States in their execution, and could in turn influence their impact. For that reason, in most cases, it will be important for the CEDAW Committee to follow-up implementation of recommendations and for civil society to monitor developments in this regard.

Political Will

The internal politics of a States party can strongly influence the domestic implementation of the CEDAW Convention and any recommendations of the CEDAW Committee. Politicians in government or in opposition, in opting to either champion the cause of women's rights or to highlight other areas within the State for the focus of political debate, influence public awareness on certain issues. Where the human rights of women are given priority within a States party, a recommendation from the CEDAW Committee can achieve maximum attention, and thereby impact, both from government and civil society. Where consciously or otherwise, governments or politicians do not identify women's human rights as an area meriting attention, the likelihood is that the subject will either be less topical in civil society or will be downplayed or ignored by those in power.

The importance governments allocate to their reputation on the international stage is further likely to influence the impact of recommendations made by the CEDAW Committee under the OP-CEDAW. Where some States parties are conscious of the need to be seen by the international community to uphold the provisions of international conventions and/or to prioritise the promotion human rights nationally, others will be less concerned. States that place importance in international repute may be keen to be seen to take their obligations seriously, and therefore more prepared to act on the recommendations of the CEDAW Committee. Others may be less concerned at the negative publicity generated by flouting of international obligations and recommendations.

The economic situation in a States party may also be a factor to consider. Non-remunerative remedies or those which do not require the allocation of State funds, particularly in the world's poorer countries, may be more palatable to governments concerned about the impact the recommendation might have on the exchequer. This may be particularly pertinent where recognition of the remedy, and thereby the violation of a right or rights, has the potential to open the floodgates to other claims of a similar nature.

It is important to note however that changes in government or political policy do not affect the obligations of the States party under the CEDAW Convention. A new government is not entitled to decide that the convention, which was ratified by a previous government, no longer applies. State obligations transcend changes in government and remain unchanged.

Publicity/pressure from Civil Society

Recommendations constitute weighty directions from the international foyer to the States party to act in a way which adequately addresses a violation of a right enshrined in the CEDAW Convention. If employed in lobbying and awareness-raising by civil society, they can be important tools to achieve maximum results from States in the execution of their obligations. Further, it is important to note that the impact of recommendations should not be viewed as unique to the individual or individuals who were the subject of the communication. Rather, they must be viewed as having a holistic influence which extends beyond the particular violation(s) complained of. The domestic implementation of the CEDAW Convention can make meaningful contributions to the advancement of women at the local and national level.