"Uses of CEDAW in Addressing Trafficking in Women"[1]
Shanthi Dairiam, Executive Director

I. INTRODUCTION

The Convention on the Elimination of All Forms of Discrimination Against Women (the CEDAW Convention) as the sole international legal instrument specifically designed to protect women from continuing discrimination and human rights violations offers a wide range of action to be pursued by State parties in combating trafficking in women.

The CEDAW Convention was adopted by the General Assembly of the United Nations in 1979 based on a draft elaborated by the Commission on the Status of Women. In 1981, after 20 states deposited their instruments of ratification, the CEDAW Convention entered into force. The Committee on the Elimination of Discrimination against Women (CEDAW Committee) was subsequently established to monitor the implementation of the CEDAW Convention. Today, 171 State parties have ratified the CEDAW Convention, making it the second-most ratified Convention after the Convention on the Rights of the Child.[2] Due to the nature of some of the provisions, the CEDAW Convention is also the convention with the largest number of reservations.

Consisting of a total of 30 articles, the CEDAW Convention identifies specific areas of life where women do not yet enjoy full equality with men and requires State parties to eliminate such discrimination de jure as well as de facto[3]. Hence, the question arises, how can the CEDAW Convention be used to address the problem of trafficking in women.

From a glance at the individual provisions of the CEDAW Convention, the answer may seem obvious. Recognising the specific vulnerability of women to exploitation, Article 6 of the Convention requires State parties to suppress trafficking in and exploitation of prostitution of women. However, the strength of the CEDAW Convention lies in its framework of discrimination. The CEDAW Convention, taken holistically, provides many answers through different articles, when the problem is framed as discrimination. The CEDAW Committee, through its jurisprudence, has clarified the links between the CEDAW Convention and trafficking against women in General Recommendation No.19[4] and its review of state party reports.

This paper demonstrates a methodology for the application and use of the CEDAW Convention to address the problem of trafficking in women. The approach suggested is not to look for answers in individual articles but to address the problem as an issue of discrimination, drawing on the work of the CEDAW Committee. The individual complaints mechanisms recently introduced through the adoption of the Optional Protocol to the CEDAW Convention present survivors and advocates with an effective tool to address the wider issue of discrimination and is therefore explained in detail in this chapter.

II. THE CEDAW CONVENTION

A. Objectives

The CEDAW Convention aims at guaranteeing full protection of women's human rights. It is the starting point for eliminating discrimination against women in all spheres of life, in the family, in the community and in the workplace. It ensures equal participation in political and public life and aims at lifting cultural and traditional burdens placed on women. By emphasising the position of women both in public and private life, the CEDAW Convention reflects the recognition that women encounter discrimination in law and in fact in all aspects of life. As such, it is the first human rights treaty, which goes beyond imposing state obligation in the field of public life to require State parties to undertake a series of measures to ensure equality in private life. By outlining specific measures to be taken by State parties to achieve this, the CEDAW Convention provides State parties with an agenda for action at the national level and is thus more than simply an international bill of rights for women. As a result, the CEDAW Convention is a unique tool to ensure full and equal participation and enjoyment of rights of women in all spheres of life, thus reducing their vulnerability to abuse and exploitation.

B. Key Provisions

The CEDAW Convention highlights measures to be undertaken by State parties to end discrimination in 14 substantive articles covering three aspects of life of women. In short, these are civil and political rights and the legal status of women, reproductive rights and non-discrimination on the basis of culture and tradition. By ratifying the CEDAW Convention, State parties chose to be bound by these obligations. A substantial amount of these are relevant to combating trafficking if this struggle is placed within the framework of discrimination.

First of all, the CEDAW Convention explains the concept of discrimination.

This definition spells out in detail the meaning of discrimination against women. It highlights three ways in which different treatment on the grounds of gender can constitute discrimination:

As a result, any act of restriction, exclusion or distinction, whether intentional or unintentional, that impedes the recognition of women's human rights or denies women the exercise of any such right is discrimination. This definition is applicable to all provisions of the CEDAW Convention.

To realise the full protection and enjoyment of human rights of women, Article 6 requires State parties to undertake measures to suppress traffic in and exploitation of prostitution of women, as this impedes the exercise of their human rights.

 

This article spells out obligations placed on State parties to take action in various areas, including, but not limited to, national legislation. In fact, State obligation extends to other areas such as law enforcement as well as underlying issues, for instance social and economic factors, which render women vulnerable to exploitation.

However, to guarantee a multi-faceted approach to combating trafficking, it is recommended not to make use of one particular CEDAW Convention provision alone, but to use the CEDAW Convention as a whole and place the problem of trafficking in women within the wider context of discrimination against women.

As a first step, this requires showing trafficking against women is indeed a form of discrimination. Consequently, we have to establish which rights of women are denied or infringed over the course of the trafficking cycle. Breaking down the trafficking cycle into separate human rights violations reveals which human rights of women are infringed when women are deceived or lured into leaving their home out of economic despair or simply have no other option, when their passports are seized and they are forced to perform a job they never wanted or subject to conditions never agreed to. This, in turn, allows us to seek a wide range of remedies. The comprehensiveness of the CEDAW Convention becomes an appropriate instrument to address the wide-ranging issues that need to be tackled when dealing with trafficking.

In establishing which rights are violated during the course of the trafficking process, it is useful to turn to the General Recommendations espoused by the CEDAW Committee. Article 21 of the CEDAW Convention permits the CEDAW Committee to make suggestions and general recommendations based on the examination of State reports. However, in practice, the CEDAW Committee has made General Recommendations to all State parties on specific measures as warranted by the CEDAW Convention.

General Recommendation No.19 covers the issue of gender-based violence - a human rights violation not explicitly included in the CEDAW Convention. Paragraphs 6 and 7 clarify, however, that all forms of gender-based violence is discrimination and spells out the rights denied to women when they experience gender-based violence.

During the process of trafficking women, most, if not all of the above rights are violated. As a result, the definition of gender-based violence applies to trafficking in women. As such, trafficking constitutes discrimination against women. Consequently, many articles of the CEDAW Convention are applicable in relation to the rights violated.

In order to identify which articles are relevant, it is mandatory to look at the different levels of discrimination that constitute trafficking and closely analyse the circumstances surrounding and contributing to trafficking. For this we have to distinguish three stages (before, during and after) of the trafficking cycle during which women experience discrimination:

Discrimination is evident in all these aspects and they have to be addressed in a comprehensive manner. This approach prevents us from reducing the actions to combat trafficking to the immediate issues of rescue, repatriation and rehabilitation but helps us look at the social context that facilitates trafficking. It helps us further to look at the long-term issues of discrimination resulting in the denial of life chances to women that perpetuates the vulnerability of women to trafficking.

The denial-of-rights-approach compels us to not only provide services for the relief and rehabilitation of trafficked women, but to take additional punitive action against those responsible for the denial of rights and draw on accountability of those obligated to be duty holders to prevent trafficking, to punish traffickers and to provide other forms of remedies for survivors of trafficking. This approach is crucial for the deterrence of trafficking. If programmes to combat trafficking stop at rescue and rehabilitation initiatives, then nothing is being done about the nexus of collusion between law enforcers, traffickers, state officials and receivers of trafficked persons acting with impunity. The fact that nothing is done about them gives them the power to continue their criminal activity. Secondly, as a long-term measure, it is also imperative to engage in advocacy that will focus on the larger issue of the disadvantaged position of women such as their unmet needs for economic independence and their devaluation that puts them at risk of being trafficked.

Hence not only do we have to view trafficking in itself as discrimination but we also have to consider the discrimination that women face because they are women, which intensifies their vulnerability to trafficking. The CEDAW Convention has great relevance when this approach is taken.

What are the concrete issues to consider? The Foundation for Women and The Global Alliance against Traffic in Women, both based in Thailand, have mentioned the following factors and circumstances that need to be addressed. They include factors contributing to the vulnerable circumstances of women which increase their risk of being trafficked, abusive brokerage practices and deception during recruitment for work, abusive and exploitative work conditions, lack of support services for repatriation, and issues to be addressed regarding asylum seekers in receiving countries.

1. Causes of female labour migration and women entering the sex industry

2. Factors that facilitate trafficking: vulnerable circumstances of women

3. Forms of abuses

4. Problems upon returning home

C. Obligations for State Parties arising under the CEDAW Convention

All of the above issues including economic, social and cultural factors relevant for effective prevention and successful repatriation are part and parcel of the problems pertaining to trafficking against women. Therefore, the obligation to eliminate discrimination against women placed on State parties by the CEDAW Convention is applicable in its entirety. In addition, it is useful to refer to General Recommendation No.19 and to identify its relevant sections.

We have seen earlier that Article 1 of the CEDAW Convention and the definition of discrimination is central to the analysis of trafficking in women. More importantly, the prohibition of discrimination under the CEDAW Convention is not restricted to action by or on behalf of the state. Rather, the State has to ensure there is no discrimination by any person, organisation or enterprise - thereby extending State obligation into the private sphere of life. Furthermore, State parties are also responsible for modifying or abolishing existing customs or practices that constitute discrimination against women (Article 2e and f). Consequently, the responsibility to take action against all acts of abuse perpetrated by recruiting agents and unscrupulous employers falls on the State.

Secondly, Articles 3 and 4 require State parties to the CEDAW Convention to take all appropriate measures including changes in law and policy to ensure the full advancement of women as well as temporary special measures to accelerate women's de facto equality.

In the context of combating trafficking, such measures cover public information campaigns on the risks of trafficking and other preventive measures and extend to providing adequate support services for rehabilitation of victims and survivors of trafficking, half way houses and other refuges.

Thirdly, Article 5 obligates State parties to strive to eliminate traditional attitudes, which see women as inferior to men. This reflects the recognition that even if women's legal status is equal to that of men's, there is another level of discrimination which has to be eliminated: discrimination in the private sphere through adherence to cultural stereotypes and social patterns of behaviour.

Finally, several other substantive articles apply. These are, as mentioned earlier, the duty of State parties to suppress all forms of trafficking in women (Article 6), the obligation to ensure equality of women in the field of employment (Article 11), the right to equality in access to health facilities (Article 12), the responsibility of State parties to ensure equal development for rural women (Article 14), the right to equality before the law (Article 15) and equality in the family (Article 16).

In addition, sections of General Recommendation No.19 have great relevance and applicability in establishing measures to be taken in combating trafficking. Reference to the General Recommendation is important because it identifies a range of specific actions that need to be taken by the state to fulfill its obligation to respect, protect and fulfil women's rights. Its provisions complement the statement of rights and obligations contained in the CEDAW Convention. For example:

D. Implementing and Monitoring the CEDAW Convention

In line with monitoring systems of other international human rights treaties, Article 17 of the CEDAW Convention establishes the CEDAW Committee, which monitors the progress individual State parties have made in implementing their obligations arising under the CEDAW Convention. This takes place primarily by examining reports, which these states have submitted to the CEDAW Committee.

For a comprehensive understanding of the process and dynamics of the review, this section will explain the review procedure and consider the issues that emerge from the various stages of the review as suggestions and recommendations to combat trafficking in women.

The CEDAW Committee meets for a period of two weeks each year to discuss reports submitted by State parties, based on which it will suggest and recommend further action to be taken. In addition to state reports, the CEDAW Committee may also consider reports by United Nations specialised agencies as well as information from non-governmental organisations (NGOs). Through the Economic and Social Council, the CEDAW Committee reports once a year to the United Nations General Assembly as well as the Commission on the Status of Women.

Officially, the parties in the review process are the State party concerned and the CEDAW Committee. However, NGOs participate unofficially and provide valuable information to the CEDAW Committee, which helps to evaluate state performance in fulfilling state obligations under the CEDAW Convention. By stating problems and issues addressed by the state in question in direct relation to the article concerned, NGO reports, called shadow reports, can be extremely useful in assessing the factual situation of women in a particular country.[5]

All State parties to the CEDAW Convention are obligated to submit a report to the CEDAW Committee one year after ratification of or accession to the treaty. This report is called initial report and serves as a baseline for assessing progress in implementation. Thereafter, State parties are required to report on measures taken to implement the provisions as stipulated in the CEDAW Convention in a periodic report once every four years. In ratifying or acceding to the CEDAW Convention, all State parties have accepted these reporting obligations. However, resource and time constraints as well as lack of capacity present difficult challenges for compliance with this obligation. To overcome these challenges, State parties can ensure effortless collection of information from various ministries and government agencies by designating a reporting agency and ensuring effective collaboration of all agencies involved. It is furthermore suggested to include NGO's in this process, as they may be able to share a wide range of resources. To facilitate reporting in a consistent manner, the CEDAW Committee has established guidelines for State parties compiling reports. Accordingly, an initial report is best divided into two parts, one on the country's political, legal and social framework as a general introduction on areas and measures identified to implement the CEDAW Convention, and another on steps taken to comply with individual articles of the CEDAW Convention. To improve the timeliness and adequacy of reports submitted by State parties, the United Nations Division for the Advancement of Women organises training courses for government officials.[6] In addition, the United Nations Centre for Human Rights conducts training on reporting obligations under all major international human rights treaties, one of which is the CEDAW Convention.

In order to review periodic reports in a timely manner, the CEDAW Committee established a pre-session working group, which drafts questions based on the first reading of the State party's written report. These questions are sent to the reporting state six months in advance. This mechanism was introduced to allow reporting states to adequately prepare their replies. At the face-to-face review, the State party concerned is expected to present an oral report based on its written report combined with the answers to the questions of the pre-session working group. In this phase of the review, the CEDAW Committee engages in a constructive dialogue with the representatives of the State party concerned. The examination of State parties' reports is not intended as an adversarial procedure, which explains why the CEDAW Committee only points out in which areas the reporting state falls short of implementing the CEDAW Convention provisions through a series of questions and comments instead of exposing clear cut violations of the CEDAW Convention. Consequently, the review process is similar to an exchange of information and ideas resulting in a set of written conclusions and recommendations to the State Party concerned. These are called Concluding Comments.

In highlighting the reviews of four countries, the periodic reports of China and Thailand as countries of origin of trafficked women and that of Sweden and the Netherlands as receiving countries, this section will summarise relevant NGO information and issues that have emerged from relevant portions of these State reports. These countries have been chosen as examples, as it is vital to look at issues to be addressed at both ends and to hold both sets of states accountable[7] in addressing the problem of trafficking in women.

1. China[8]

During the CEDAW Committee session in January 1999, the CEDAW Committee reviewed the Third and Fourth periodic report of China. In addition to the steps taken to implement the CEDAW Convention as stated in the state reports, NGOs raised several issues with regard to trafficking in women in their shadow report.

1. 1. Issues raised by NGOs in the shadow report[9]

The numbers of reports of women and girls trafficked into the sex industry, domestic servitude, sham marriages, sweatshops and begging in the cities have been growing since the late 1980s and the incidence of kidnapping and selling of women in China's rural region has been on the rise since the beginning of that decade. A high proportion of women are trafficked domestically while there is also trafficking to other Asian countries including Cambodia, Singapore, Malaysia, Hong Kong, Japan and Taiwan. Many transit through Thailand. Domestic trafficking takes place for the purposes of selling women into slavery to men who cannot find wives and for the purposes of the sex industry. The reason for the former practice lies in the fact that China has a shortage of women resulting from son preference. There have also been reports of women from Vietnam, and North Korea being trafficked into China and sold as "wives."

Most sources report that organised crime groups in China, Hong Kong and Taiwan play a major role in trafficking.

Victims are subject to extreme forms of abuse and slave-like conditions. Attempts at understanding trafficking and the social mobilisation to fight it are severely limited in part because of the restriction on the reporting of negative news.

Traditional attitudes mean that women and girls who have been trafficked and raped are forced to engage in prostitution, as they may not be able to return to their families. Services catering to trafficked women are often insufficient.

The vast majority of trafficked women are from rural impoverished families. As with all undocumented persons, there are major difficulties in repatriating trafficking victims from the countries in the region. In general, no distinction is made between trafficking victims, including minors, and other illegal immigrants/emigrants, either by the receiving country or the country of origin. If women and girls seek to return through the same illegal channels that brought them there, they usually have to pay a large sum of money to be transported back to China.

The process for rehabilitation is long and complicated, rehabilitation and reintegration services are lacking in China.

Enforcement of anti-trafficking laws is highly erratic and heavily dependent on the will of the local authorities. Traffickers and purchasers of women frequently rely on the collusion or active involvement of officials.

The continuance of the trafficking trade is attributed to economic factors, persistence of feudal customs, regional disparities in wealth, insufficient crackdown on traffickers, lenient punishment of purchasers and the collusion of officials.

1.2. Dialogue between the State party and the CEDAW Committee during the review

The CEDAW Committee expressed concern regarding the levels of poverty experienced by women, unemployment among women and the adverse effect of the economic reform on women. The CEDAW Committee was also concerned regarding the effect of the economic reform on social services. Further concerns were illiteracy among women, the education of girls and the lack of women in leadership positions. The CEDAW Committee enquired whether the definition of discrimination was included in the law and was also concerned about law enforcement. In particular, the Committee raised issues around the adequacy of legal remedies to protect the personal rights of women and in particular the rights of rural women as well as to protect women in the context of crime committed against them including trafficking and prostitution. The CEDAW Committee wanted to know the extent of violence against women, especially domestic violence, and the measures taken by the government to eradicate the stereotyping of women.

The State Party representative acknowledged that China was not entirely free from the remnants of the feudal age, and despite tremendous efforts by the Government to protect women and promote their full participation in development, the country was confronting a sobering reality of extensive female illiteracy, rural poverty and an increased incidence of domestic violence.

He pointed out that due to the structural adjustment in the economic reform and development towards a socialist market economy, the number of laid-off women workers had increased, and it was difficult for them to be rehired.

Because of their loss of independence and economic income, some women's status at home had become lower, which in turn had led to a greater frequency of family disputes, accompanied by domestic violence or family break-ups.

He further explained that employers of some private businesses and jointly or solely foreign- funded operations had ignored the provision of labour protection for women in favour of profits instead.

The Government was now undertaking vigorous measures to address the problems associated with the economic reform.

The review also brought up the fact that disrespect for and discrimination against women, as well as violations of their rights and interests, are not uncommon, and the overall talents and abilities of China's women also need further improvement.

It was discussed that violence against women had increased in recent years, and was manifested mainly by domestic violence, social violence - like trafficking, kidnapping, rape, and forced prostitution - and violence against women in the work place.

Poor economic development and women's reliance on men was an economic reason for domestic violence, as was the neglect by some people of their family responsibility; in some remote and poverty-stricken rural areas, some mercenary marriages as well as those formed on the basis of an arbitrary decision of a third party had also led to domestic violence.

The representative explained that at present, victims of domestic violence in both urban and rural areas could seek help from the police station, neighbourhood office or public security committee.

The representative also said that prostitution was illegal in China, and when seised by the police, both the prostitute and the client received the administrative penalty for violating public security, including administrative detention and the imposition of a fine; there was no law in China permitting the opening of a brothel, and organising, forcing, seducing, sheltering or introducing a woman to prostitution or introducing a man to engage in whoring was a crime;

Over the years, the Chinese Government had devoted itself to the protection of women's human rights and legal interests through legislation, and it had been giving much more importance to the crackdown on trafficking.

It was reported that regarding women's personal rights, all law enforcement departments had been taking tough measures and had organised special crackdowns on criminal activities of causing injury or death of women. As a result of those efforts, the cases of trafficking in women and children had been reduced in the last five years.

It was further reported that the Chinese Government has dedicated itself to developing the economy, strengthening the legal system, eliminating all backward ideas that discriminate against women and fulfilling the strategic objectives of the Beijing Declaration and Platform for Action.

The representative explained that the Women's Act of 1992 did not contain a specific definition of discrimination, however its stipulations fully expressed the principle of combating gender-based discrimination.

Since the promulgation of the Law on the Protection of the Rights and Interests of Women, the National People's Congress had conducted two inspections on enforcement of the law.

Despite the further protection and strengthening of women's rights since the promulgation of the women's law, the representative acknowledged that some problems deserved continued serious attention, such as the shortfall of women in politics, the difficulties for laid-off female workers, and the rise of domestic violence. There was still a long way to go before the various forms of discrimination against women could be eliminated and gender equality could be fully realised. However, China had the determination and the confidence to reach that lofty goal and it welcomed the support of the international community.

The representative stated that the main measures undertaken by the Government to modify stereotyping of women included advocacy and educational campaigns, training and education programmes, and the elaboration of the programme for the development of Chinese women from 2001 to 2010. To encourage women to receive higher education, attention was given to the nurturing and building up of a sense of gender equality among students in primary schools, middle schools and universities. Girls were encouraged to engage in experiments and activities relating to science and technology, and to take non-traditional subjects.

He also stated that Chinese women today faced bitter clashes between family responsibilities and competition for employment. In the tide of a market economy, women in China did not want to lag behind, a member of the Chinese delegation told the CEDAW Committee. Yet, Chinese women still needed to balance their traditional social and family roles with their emerging presence in the nation's development.

Several members of the CEDAW Committee expressed concern that such deep-seated prejudices would impede implementation of the CEDAW Convention. The challenges stemming from the economic transition, along with the sheer size of the population, were daunting. Those problems included illiteracy, unemployment, trafficking and the gap in development between rural and urban areas.

One CEDAW Committee member supported a holistic approach to the problems, and expressed disappointment that the most senior government organ to address women's issues was a national working committee on women and children. Had the CEDAW Convention ever been invoked? she asked. There were measures to fight trafficking, but those laws needed to be enforced. Meanwhile, the Chinese Government had no laws on domestic violence, and no shelters for the victims of such abuse. Also absent was labour protection in private enterprise and its enforcement for women who were particularly vulnerable to exploitation as a result of the new economic reforms. The legislation to deal with the problem of land ownership had seemed appropriate, but the de facto situation was very different. Even today, when women in China changed their marital status, they lost their rights to land.

The status of illegal children, many of them girls, was also a deep concern. Those were apparently unregistered and, therefore, officially non-existent. Thus, they were not entitled to education or health care or any other basic necessities.

The CEDAW Committee stated it had heard of consistent reports of abuse of power by local officials in implementing their policies, including serious violations of human rights. She had heard about forced abortions and sterilisations; about the detention of citizens in order to implement the family planning policy; and about housing that had been demolished to punish those who had exceeded the quotas. While the Government claimed it did not condone such measures, it needed to make clear that those measures were prohibited. Moreover, it must take administrative or other sanctions against officials operating outside their authority.

If, as the Government had said, sex-elected abortion and the abandonment of children were illegal, it needed to prohibit those activities. The CEDAW Committee pointed out that to break the cycle of violence and introduce the discourse of human rights into Chinese culture, the Chinese government was asked to "just read the Convention; read it again and again and again, and think about what it means".

1.3. Concluding comments

(a) General matters pertaining to discrimination and the status of women

The CEDAW Committee notes that the persistence of prejudice and stereotypical attitudes concerning the role of women and men in the family and in society, based on views of male superiority and the subordination of women, constitutes a serious impediment to the full implementation of the CEDAW Convention.

The CEDAW Committee is concerned that the Government's approach to the implementation of the Convention has an apparent focus on the protection of women rather than on their empowerment. Thus, the central machinery responsible for government policy is the National Working Committee on Women and Children, perpetuating the identification of women with children. Likewise, labour laws and regulations overemphasise the protection of women.

The CEDAW Committee recommends that the Government re-examine its approach to realising gender equality, with an emphasis on the human rights framework of the CEDAW Convention and the empowerment of women. The Government should encourage a countrywide social dialogue that advocates equality between women and men, and a comprehensive public campaign aimed at changing traditional attitudes.

The Women's Law does not contain a definition of discrimination against women. It is also concerned that the Women's Law does not provide for effective remedies in cases of violation of the law. It is unclear whether the CEDAW Convention can be, or ever has been, invoked in a court of law, and what the outcome of such cases might have been.

The CEDAW Committee recommends that the Government adopt legislation that expressly prohibits gender discrimination, including unintentional and indirect discrimination, in accordance with the definition in Article 1 of the CEDAW Convention. It also recommends that the Government improve the availability of means of redress, including legal remedies, under the Women's Law. The Government should provide legal aid to women who suffer discrimination in its various forms, to assist them in the realisation of their rights. It should also widely publicise all these measures so that adequate enforcement of the law can be ensured. The CEDAW Committee recommends further that the Government adopt measures and allocate resources at both the central and provincial levels to monitor implementation of the various laws on gender equality.

The CEDAW Committee notes with concern the adverse impact of economic restructuring on women in the transition from a planned economy to a market economy, and in particular the gender-specific consequences for women's employment and re-employment. The rising unemployment of women, difficulties in finding new employment, the lack of enforcement of labour laws for women workers and the continuing categorisation of certain jobs as unsuitable for women are of particular concern. The CEDAW Committee is concerned that retraining of unemployed women for jobs in the service sector may lead to further gender segregation of the labour market, with women being trapped in low-wage sectors. The CEDAW Committee notes with concern that women are faced with age discrimination as they seek re-employment. It is also concerned that an overemphasis on the protection of, rather than equal opportunities for, women in the labour market perpetuates stereotypes and creates additional obstacles for women competing in a market economy. The CEDAW Committee notes that the situation of women workers in special economic zones also remains a concern.

The CEDAW Committee urges the Government to analyse, from a gender perspective, the effects of its economic policies, and to take steps to mitigate and counteract their negative effects on women. In addition to enforcing existing labour laws, the CEDAW Committee invites the Government to increase women's means of redress against discrimination and inequality at work, including by promoting the recognition of women's right to participate in workers' organisations and their right to strike.

The CEDAW Committee is concerned about the consequences of women's loss of employment, or of interrupted employment, on women's rights to housing, health care and social security.

The CEDAW Committee considers that the gap between the situation of women in urban areas and those in rural and remote areas constitutes a major obstacle to the full implementation of the CEDAW Convention.

The CEDAW Committee is concerned about the disproportionate persistence of illiteracy among rural women and among ethnic and religious minorities. It recommends that the Government adopt a specific time frame, with budgetary and resource allocation, for the achievement of universal literacy and primary education.

The CEDAW Committee is concerned about the growing disparity in the male/female sex ratio at birth as an unintended consequence of the population policy, owing to the discriminatory tradition of son preference. The shortage of females may also have long-term implications regarding trafficking in women.

The CEDAW Committee is concerned about illegal practices of sex-selective abortion, female infanticide and the non-registration and abandonment of female children. Furthermore, it is concerned about the status of "out-of-plan" and unregistered children, many of them girls, who may be officially non-existent and thus not entitled to education, health care or other social benefit. The Government should address linkages between economic security in old age and its family planning policies. In addition, it should take all appropriate measures to modify and eliminate son preference, inter alia, by expanding educational and employment opportunities for women in rural areas, enforce laws against sex-selective abortion, female infanticide and abandonment of children and remove all legal disabilities form "out-of-plan" and unregistered children.

(b) Specific to trafficking

The CEDAW Committee expresses concern about reports in some localities of officials who are involved or colluding in the trade in women, including through payment from prostitutes and urges the government to investigate and to prosecute all guilty parties.

The CEDAW Committee is concerned that prostitution, which is often a result of poverty and economic deprivation, is illegal in China.

The CEDAW Committee urges decriminalisation of prostitution and measures for the rehabilitation and reintegration of prostitution including provision of health services.

A reading of the issues raised in the NGO shadow report provides an overview of the problem of trafficking in women and children in China. In its review of progress in China, the CEDAW Committee takes up some of the issues and suggests social services for survivors of trafficking be provided by the government. It also urges the government to take action in connection with allegations of officials colluding in trafficking in women.

Now that these issues have been established as areas mandating action, it becomes clear which article is applicable in this context. Identifying elements of the problem of trafficking and relating them to a particular article of the CEDAW Convention is essential in combating trafficking in women through the use of the CEDAW Convention. For example, where collusion between traffickers and state officials exists, Article 2(d) must be used to challenge this collusion. This article reads:
(...) To refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation; (…)

2. Thailand[10]

During the Committee session in January 1999, the CEDAW Committee reviewed the Second and Third periodic report of Thailand. In addition to the steps taken to implement the CEDAW Convention as stated in the state reports, NGOs raised several issues with regard to trafficking in women in their shadow report.

2. 1. Issues raised by NGOs in the shadow report[11]

Thailand is a country of origin, transit and destination for trafficking in women. It is difficult to make any reliable estimate of the number of trafficked persons, as it is an illegal activity, it is not recorded in any official statistics and the absence of a clear definition adds to the problem.

The trafficking of women in Thailand is closely connected with female labour migration and migration for sex work both domestically and cross-border.

Factors for female labour migration include, the collapse of rural livelihood, daughters being pressured to migrate to fulfil the family's economic needs and in some instances being encouraged/pressured by parents to enter sex industry, traditional values which place an obligation on daughters to care for the family.

Trafficking occurs for different purposes including different forms of forced labour, servile marriage and forced prostitution. The contexts of trafficking are also related to the issue of illegal migration, illegal migrant workers and illegal work. Opportunities for work for women are limited to low paid jobs with substandard working conditions. While increasing number of women seek to migrate overseas for work the channels for official work contract are limited. All of this is in turn linked to low education, gender roles and gender ideology. Other contexts are demand for services in the sex industry, violence in the family and failure of the marriage, lack of social support for women in difficult circumstances and complicity of government officials.

Despite changes in the laws on prostitution to target brothel owners and procurer of girls into the sex industry, in practice only a few of such people have been prosecuted.

The Suppression of Trafficking in Women and Children Act lacks concrete measures or procedures that compel concerned government agencies in handling cases of trafficking with a view of providing assistance to victims of trafficking rather than punishing them as illegal migrants.

Limited cooperation has been initiated between Thailand as a country of origin and countries of destination where Thai women are trafficked into in terms of detecting the trafficking network and in terms of assisting victims of trafficking.

2.2. Dialogue between the State party and the CEDAW Committee during the review[12]

The concerns of the CEDAW Committee included the effectiveness of the implementation of provisions in the constitution to prohibit discrimination against women on the basis of sex and marital status,[13] the measures to change attitudes that reinforce stereotypes or lead to stereotyping with respect to girls and women, the government efforts to address negative attitudes towards girls who wish to study or work in non-traditional areas, details of the legislation, including the Act on the Prevention of Traffic in Women and Children, adopted by the Government of Thailand to prevent prostitution[14] and trafficking in women and girls, the implementation of this legislation and the obstacles to its implementation and the sanctions for trafficking. The CEDAW Committee also wanted to know the extent of sex tourism in Thailand and the measures, including laws, to address sex tourism, laws and policies aimed at protecting girls and women from labour agencies involved in trafficking, methods employed to estimate the numbers of women trafficked abroad as well as methods for monitoring patterns of immigration and emigration and the major obstacles to the elimination of trafficking in women.

While the new Constitution was impressive in its steps forward in the areas of anti-discrimination and employment equality, the CEDAW Committee deplored the absence of any definition of discrimination, as defined in article 1 of the CEDAW Convention. Thus, the treaty did not have the force of a legal instrument in Thailand.

Concerning the legality of the CEDAW Convention in Thailand, the State party representative said that none of the international legal instruments had legal status in the country. Rather, they were being used as a reference point to change existing laws and regulations, and had been successful in many instances.

The representative noted that in 1988 anti-discrimination legislation had been proposed but had been rejected by legislators because the new constitution prohibited discrimination on the basis of sex. Since the submission of Thailand's report, there had been significant changes related to the problems of exploitative commercial sex and trafficking of women and children The representative elaborated on three revised laws: the Prostitution Prevention and Suppression Act of 1996; the Prevention and Suppression of Trafficking in Women and Children of 1997; and the Penal Code Amendment Act. In addition, the National Commission on Women's Affairs was in the process of formulating the National Plan of Action for Trafficking of Women and Children, to deal with illegal women migrants who were trafficked into Thailand, using Thailand as a receiving, transiting or sending country. It was reported that enforcement of these laws is a major problem.

While there was a need for an anti-discrimination code in Thailand, there were many difficulties being faced in that regard, she said. For the time being, the National Youth Bureau was trying to come up with one comprehensive code for children's rights. If that were successful, then an anti-discrimination code for women would be pursued.

Although there is no legal definition of discrimination in Thailand, according to the report, the influence of the CEDAW Convention has led to it being widely accepted as a de facto standard, and the definition used in the CEDAW Convention is expected to be used in drafting the proposed anti-discrimination law. In 1994, following campaigns by non-governmental organisations (NGOs) and the National Commission on Women's Affairs, a provision specifically providing for equality between men and women was re-incorporated in the Thai Constitution. While all de jure discrimination against women by the Government has now been abolished (with the exception of within the police and armed forces), considerable de facto discrimination remains. Overall, women tend to be concentrated in lower status and lower paid positions, which reflects historical inequalities in access to education, but also their higher level of involvement in the informal sectors of the economy.

Regarding legislation, the CEDAW Committee recommended that there should be a comprehensive anti-discrimination law for the entire country. Since the Thai representative had stated that a children's code was being pursued first, it would be crucial to include a definition of discrimination that covered both intentional and unintentional discrimination. Unless that definition was included, the Government would only skim the surface of discrimination, and not reach the hidden areas.

As stated in the State party report, the exploitation of prostitution and trafficking in women are major human rights problems in Thailand. Deep-rooted social attitudes such as the condoning of prostitution by men and women as a male privilege, and the daughter's duty to take care of her family make it very difficult to implement appropriate measures, which can be used to effectively suppress them. Such attitudes are difficult to change. The Women's Commission (NCWA) and NGOs have been working towards enactment of a new law, which will further strengthen penalties and renew the State's prohibition of child prostitution.

A further problem arises from the very high value still placed on a woman's virginity. This may leave a girl or woman, who has been abused within her family, involved in an illicit relationship or who has been raped, with very low self-esteem and feeling her future fate is not important, making her an easy victim for traffickers.

The representative continued that to ensure women and girls have an alternate source of income, vocational training is being provided, particularly in areas known to be important sources of sex workers, to try to assist vulnerable women and girls to remain in their villages and earn a reasonable income. It is hoped that family education programmes, such as that focusing on "One Man, One Wife", will also help reduce the demand for commercial sex services.

The CEDAW Committee pointed out that the court procedure for enforcing the new Constitution seemed weak. In the area of the protection and promotion of employee's rights, the Government did not seem used to making policy changes in the public sector, and there was no relief in the private sector in that regard. The CEDAW Committee emphasised that it was important to introduce new anti-discrimination legislation, the much talked-about issue of trafficking of women and young girls and the human rights of minority groups also called for concrete measures. In addition, the new child labour protection act must be enforced. The new legal age for children to work was 15, but that was still too young.

With regard to the decriminalisation of prostitution, the representative said that, in formal law, the penalties rested only on the commercial sex workers, and not on the pimps and customers. The police went after the workers, not in an attempt to legalise prostitution, but rather to decriminalise it. If the women were over the age of 18 and were not forced into prostitution, then they were charged a fine and let go. The parents of girls forced into prostitution were also subject to imprisonment. The CEDAW Committee asked why the workers were charged at all. It was replied that lawmakers felt that if they were fined, then it would be possible to send them to shelters, where they could receive assistance and education. If they were not charged, then the police would have no basis on which to detain them. The representative agreed that there was a need to address the demand side of trafficking and prostitution.

The State party representative stated that it takes "two to tango" when he spoke on the issue of cross-border prostitution. "We don't like to see those kinds of things", as those had political repercussions and often undermined international relations. Similarly, there were two sides to deal with in order to combat the economic problems: the demand side and the supply side.

The representative also stated his country had actually dared to propose a national symposium on migration to address the cases of undocumented working men, women and children, in an attempt to find ways to manage the flow. The issue had to be handled at the source, and the worse sort had been the traffickers. For that reason, last year the Foreign Affairs Ministry had worked hand in hand with various agencies, particularly the Women's Commission, to treat women and children who had arrived on Thai soil as victims of trafficking, rather than wrongdoers. The slow but successful passage of a related law had been one step forward. The next step was to raise awareness on the other side of the border that trafficking and placing one's children into the oldest profession in the world was not the way to raise them.

The CEDAW Committee noted that with regard to trafficking and prostitution, that there would not be incentives for sex tourism if there were effective controls. Perhaps, what was needed in addition to legislation was the necessary administrative apparatus to raise awareness among the public.

The CEDAW Committee was of the view that it was plain to see there were very traditional ways of looking at things, by the vast majority of the population and possibly also by the authorities, another expert noted. Clearly, women in the country were subordinate to men. In some instances, the national legislation had stipulated equality, but when it came to apply it, social prejudices predominated. Although points had been made on paper, women's rights were not being translated into practice. Examples included the large number of girls who had dropped out of schools and the very strong preference for sons in Thai society.

2.3 Concluding comments

(a) General matters pertaining to discrimination and the status of women

The CEDAW Committee expresses its concern at the lack of effective law enforcement mechanisms and the lack of cases filed by women in the courts on the basis of constitutional guarantees. The CEDAW Committee urges NCWA to study constitutional developments in other countries and practical ways of strengthening the capacity of women to use the Constitution to ensure gender equality.

The CEDAW Committee remains concerned that the CEDAW Convention is not directly applicable in the courts in Thailand and that there is no separate law exclusively dealing with discrimination against women. The absence of a definition of discrimination congruent with the CEDAW Convention in the Constitution is also of serious concern.

The CEDAW Committee recommends the introduction of specific anti-discrimination legislation in compliance with article 1 of the CEDAW Convention.

The CEDAW Committee is concerned that traditional stereotypes of women and men are reflected in some laws and portrayed in school text books and through the media, thereby undermining positive policies relating to gender equality.

The CEDAW Committee urges that a review be made of laws and policies and school text books in order to remove gender stereotypes and to include women's human rights issues. . It also recommends that the media be encouraged to portray girls and women in non-stereotyped ways.

The CEDAW Committee encourages the Government to give full attention to the needs of rural women and to ensure that they benefit from policies and programmes in all areas, in particular access to decision-making, health, education and social services.

Noting the prevailing traditional attitudes affecting the advancement of Thai women, the CEDAW Committee recommends that sensitisation programmes for policy makers, administrators, legal personnel and other professionals involved in the health and education sector be provided.

The CEDAW Committee is concerned about the under representation of women in politics and decision-making structures, including the judicial system. It emphasises the importance of fostering a political and social environment conducive to women's promotion in all sectors of public and private life. The CEDAW Committee recommends the introduction of affirmative action policies or temporary special measures in accordance with article 4, paragraph 1, of the CEDAW Convention, with goals and timetables to address the situation.

The CEDAW Committee emphasises the importance of fostering a political and social environment conducive to women's promotion in all sectors of public and private life. The CEDAW Committee recommends the introduction of affirmative action policies or temporary special measures in accordance with article 4, paragraph 1, of the CEDAW Convention, with goals and timetables to address the situation.

(b) Specific to trafficking

The CEDAW Committee expresses its concern about the status of women migrant workers. In particular, the CEDAW Committee is concerned about cross-border trafficking in women and girls, forced prostitution and the commercial sex industry.

The CEDAW Committee strongly recommends that the Government consider the issue of migration and commercial sex work as a critical human rights issue.

The CEDAW Committee recommends that the Government explore the possibility of cooperation with other countries and coordination with non-governmental organisations when introducing measures to address the issue.

3. Sweden[15]

During the CEDAW Committee session in July 2001, the CEDAW Committee reviewed the fourth and fifth periodic report submitted by Sweden. NGO shadow reports provided useful information in addition to the measures presented by the Government representatives.

3.1 Issues raised by NGOs in the shadow report[16]

There is no specific legal provision on trafficking; the components of the crime- kidnapping, forced prostitution, slavery are punishable

In 1999 the parliamentary law commission defined trafficking but limited it to forced prostitution and omitted forced labour, marriage, debt bondage

Proposed law on trafficking criminalises the trafficker and not the trafficked but it is a crime only if the woman was unlawfully coerced or deceived or improperly recruited or transported. If the woman agreed to being transported she would be considered an illegal migrant and may be penalised; she may not get protection under the proposed law if she is abused or exploited or trafficked after she enters

Victims of trafficking should not be treated as illegal immigrants; should be given the option of seeking asylum

3.2 Dialogue between the State party and the CEDAW Committee during the review

The CEDAW Committee enquired into legislation Sweden is currently drafting concerning sex-related crimes. This law explicitly criminalising trafficking, but only when it ends in forced prostitution. The CEDAW Committee was concerned that such legislation would be inadequate to address the problem of trafficking, as it would create a narrow definition excluding other forms of trafficking and forced work.

The CEDAW Committee wanted to know whether the Government was collaborating with national, regional and international authorities to make bilateral and multilateral agreements in order to counter cross border trafficking and how the government would improve its investigations to ensure that asylum-seeking procedures were gender-sensitive.

In what way would the Government improve the right to work for legal immigrant women and minority women and what were the measures being taken by the Government to address the issue and status of illegal immigrant women.

The CEDAW Committee also wanted to know the measures in place to train the police, the judiciary and health and education providers on violence against women?

To a question about whether Sweden was a transition or destination when it came to trafficking in women, the State party representative said it was a destination. Some 200 to 500 women were trafficked into Sweden each year. The Government was working very hard to find solutions to that relatively new phenomenon.

Turning to the trafficking in women and children, the representative stated that in December 2000 the European Commission had proposed two framework decisions on trafficking in human beings and their sexual exploitation. A political agreement on the matter was reached during the Swedish presidency of the European Union - inter alia, on common definitions and victim support. One issue that remained to be resolved was the question of penalties. Sweden had also signed the Convention on Transnational Organised Crime and the supplementary protocol to prevent and punish trafficking in persons, the representative added.

The CEDAW Committee wanted to know how trafficked women were protected if they tried to free themselves and whether they would be given asylum.

The representative stated that in 1997, a new protection provision was introduced to the Aliens Act granting residence permits to individuals experiencing a well founded fear of persecution due to their gender or homosexuality. However, a recent survey showed that the new provision had been used in only a very limited number of cases since 1997. To better observe women's need for protection, it was important to train personnel handling asylum investigations. Concerning immigrants, there had been a shift of policy in Sweden, from assimilation to integration, which should be based on the right of every individual to be treated with respect and acceptance on an equal footing. There was an ombudsman against ethnic discrimination, as well as an ombudsman against discrimination on grounds of sexual orientation.

The representative went on to say that studies showed that migrant women faced a higher risk of being subjected to violence than other women. To avoid situations where assaulted immigrant women felt forced to remain in a relationship for fear of expulsion, certain amendments had been made to the Aliens Act last year. As a consequence, the examination process before granting a residence permit was now more stringent. Through interviews and investigations, it was decided, in particular, whether a residence permit should be granted on the basis of an arranged marriage.

It was explained that exploitation of prostitutes had been a criminal offence in Sweden since 1 January 1999. Since then, the number of known female prostitutes appeared to have declined in the country's three largest cities. The new legislation had also had an impact on the trafficking in women for sexual exploitation. On prostitution and pimping, the committee was told such actions, as promoting or exploiting prostitutes were prohibited and punishable under the country's Penal Code. The new amendments also prohibited purchasing the services of prostitutes. Under other amendments, various crime victims had access to counselling and free representation in the court of law. The quality of public support for crime victims was also being improved.

The representative added that the law on prostitution, operational since January 1999, was a positive step, but the representative had mentioned that the number of prostitutes on the streets had decreased while the number of "hidden" prostitutes might have increased. The CEDAW Committee was concerned as to what methodologies were being used to combat that invisible phenomenon?

To the question about concealed prostitution, the representative replied that two thirds of such cases took place indoors, in concealed forms. That called for special measures to address the problem. The Government was considering such actions, including creation of "prostitution centres", in which social workers and health-care professionals would work with prostitutes.

She also added that police could follow customers into brothels, and that was one of the ways to deal with the problem of hidden prostitution.

The CEDAW Committee appreciated the new legislation on violence, which was broad and very positive, punished the client who paid for sexual relations, but they enquired what it would do about pimping? It seemed that those "procurers" were delinquents who took advantage of women and enslaved them.

It was reported that to prevent and counteract trafficking, in human beings Sweden had a set up a working group comprising the Ministry of Justice, Health and Social Welfare, the Foreign Ministry, the Ministry of Industry, Labour and Communication. The working group will coordinate the efforts in this area during the Swedish presidency of the European Union. The National Police Board had been appointed the national reporter for Sweden in accordance with a EU declaration and will inter alia collect information on the extent of trafficking in women in Sweden and other countries, including outside the EU, and consider how such trafficking can be prevented and counteracted.

It surprised the CEDAW Committee, however, that during its presidency of the European Union, Sweden had not taken any initiative towards harmonising legislation on the problem of prostitution. Sweden could have taken the lead in that regard. Hopefully, it would do so in another context.

The representative said that during its European Union presidency, Sweden had not raised the issue of prostitution, because it was not on the agenda of that organisation. Significant differences existed on the issue, and the country was discussing it on a bilateral level. An international conference on prostitution had been held in Stockholm last year, at which various views had been presented. It was important to continue discussing the problem, which could not be separated from the issue of trafficking in people.

3.3 Concluding comments

While welcoming the criminalisation of the purchase of sexual services, the CEDAW Committee expresses concern that this might have increased the incidence of clandestine prostitution, thereby rendering prostitutes more vulnerable. It also expresses concern that Sweden has become a country of destination for trafficked women.

The CEDAW Committee encourages the Government to evaluate the effect of the current policy of criminalising the purchase of sexual services, especially in view of the complete lack of data on clandestine prostitution, which may have incidental effects on the trafficking of women and girls. The CEDAW Committee encourages action in Sweden and, through the Government of Sweden, continued efforts within the European Union to combat trafficking of women, including measures to prevent trafficking, the collection of data, the provision of services for trafficked women and measures to penalise those who facilitate such trafficking.

4. Netherlands[17]

During its 512th and 513th meeting on July 6, 2001, the CEDAW Committee reviewed the second and third periodic report submitted by the Kingdom of the Netherlands. Similar to the reports submitted by China, NGO shadow reports provided useful information in addition to the measures presented by the Government representatives.

4.1. Issues raised by NGOs in the shadow report[18]

The Government has introduced many anti-trafficking measures. It has nominated a national monitor for trafficking in women and a national rapporteur on trafficking in general. It has also legalised prostitution to grant prostitutes protection of the labour laws.

However, the law on trafficking only covers trafficking for the purpose of prostitution and not for other purposes. Furthermore, under age asylum seekers are vulnerable to trafficking and they have not been protected.

Many aspects of the law remain problematic, including inadequate monitoring of trafficking as well as lack of information among legal and other organisations on the types of protection available.

Women end up in hopeless asylum seeking situations and the fact they are victims of trafficking is often ignored or not recognised, which results in inadequate protection of women.

Victims are not enabled to report their cases or are not kept sufficiently informed by the judicial authorities on how the criminal proceedings are progressing.

Although temporary residence permits are granted to the women during the lengthy criminal proceedings, little support is given to victims to build a new future. During the course of investigation, victims of trafficking are accommodated in shelters but not granted work permits. It is impossible to find accommodation outside the shelters and victims of trafficking are neither provided with language classes nor any other training.

Once a case is heard, trafficking victims are required to return to their home countries even if in danger of reprisal. Only in exceptional cases are they allowed to remain in the country.

Non-European Union migrants are not given permits to work legally as prostitutes although more than half the prostitutes working in the Netherlands come from non European Union countries. These women are more vulnerable to trafficking.

4.2. Dialogue between the State party and the CEDAW Committee during the review

The CEDAW Committee was concerned as to whether there were measures taken to protect migrants from outside the European Union and under age asylum seekers from commercial sexual exploitation and trafficking. Additional concerns were raised regarding the implications of the new law on trafficking for prostitution for these women. Were the facilities afforded to victims of trafficking pending, during and after prosecution of traffickers adequate?

The CEDAW Committee also wanted to know whether victims of trafficking could apply for asylum citing gender-based prosecution. They wanted to receive information about the expulsion system, asking if the country provided guarantees that the victims of trafficking did not go back to the hands of the offenders. Another concern of the CEDAW Committee centred on what measures were in place to monitor and improve the situation of sex workers after the ban on brothels was removed.

Since transnational crime requires an international approach, the CEDAW Committee wanted to know how the Government was planning to communicate with the respective Governments of the countries of origin. They also enquired whether the Netherlands was a signatory to the second Optional Protocol to the Convention on Transnational Organised Crime regarding the traffic in people, especially women and children.

The State Party representative reported that the numbers of trafficked women seeking help had been increasing since 1995 and a majority of victims were from Central and Eastern Europe. Dutch law equates trafficking with forced prostitution. For the period of 1994 to 1998, a total of 582 criminal cases involving traffic in persons were registered. In the vast majority of cases the offender was convicted. Suppression of the traffic in persons is one of the public prosecution service's explicit priorities. A special liaison officer has been appointed for this purpose in each of the country's 19 court districts. The Government appreciates the seriousness of the problem and is doing all it can to stop trafficking in persons.

The report finds that the number of women seeking help from the Organisation against Trafficking in Women has grown steadily since 1995, and that the majority of women are from Central and Eastern Europe. Dutch criminal law distinguishes between traffic in persons and the smuggling of persons. Trafficking is essentially defined as any action which contributes to making a person engage in prostitution against their will, and profiting in any way from prostitution engaged in by someone against their will. The provision applies to men and boys, as well as to women and girls. Smuggling of persons is defined as bringing a person into the Netherlands or the territory of the Schengen countries or helping them to enter those territories illegally, with a view to obtaining financial gain. Traffic does not necessarily mean bringing a person into the country illegally, while those who are smuggled into the country do not necessarily become prostitutes.

Concerning a series of questions about the lifting of the ban on brothels, it was reported that the Dutch Government is of the view that prostitution and brothels are facts of life and that neither can be eradicated by legislation. Lifting the prohibition on brothels that employ adults who voluntarily engage in prostitution will make it possible to set the profession on the right track, to make it as decent, safe and transparent as possible, and free of the crime often associated with it. At the same time, firm action must be taken to stop enforced prostitution, prostitution involving minors, and other unacceptable exploitation. It will also enable the authorities to introduce and enforce measures to protect the health and safety of sex workers. An effective and coordinated enforcement of the provisions of criminal law was necessary on that practice, as well as on trafficking.

It was reported that with regard to trafficking in women, there were provisions for granting asylum for gender-based prosecution. There were procedural instructions that were based on a gender-inclusive approach and referred to the societal significance of masculinity and femininity. Those cases should be assessed in the social context of the country of origin. Gender was not regarded as grounds for prosecution. The Dutch Government was currently evaluating its procedure for asylum seekers.

There were also provisions for granting residence permits to victims of trafficking in women. Those were two different categories. The granting of residence permits applied to victims of trafficking who could be granted a temporary or possibly permanent residence permit on humanitarian grounds. Victims were given three months to decide whether they wished to press charges, during which time they could remain in the Netherlands and take advantage of financial, legal and other services. If the available evidence indicated that returning to the home country would be too dangerous, a permanent permit would be granted. Regarding another question about the granting of temporary resident permits, those were automatically granted within 24 hours of filing the complaint.

The CEDAW Committee congratulated the Netherlands for being the first country to have a rapporteur on trafficking aimed at combating trafficking in women and girls. The goal was better cooperation with other European Union countries. Concerning a question about the reason for installing a national rapporteur it was explained that this had been an initiative of the Dutch Government a few years ago. One goal was better cooperation with other European countries. For that reason, her Government had urged the appointments of national rapporteurs in individual European countries, and the appointment of a rapporteur in the European Commission to coordinate all related information among members of the European Union. Once the national rapporteur on trafficking starts his/her work they will communicate with the countries of origin of trafficked persons.

It was reported that one of the duties of the national rapporteur would be to make visible the patterns of smuggling and trafficking. That was a very complicated task but, once achieved, the relevant authorities in the country of origin could be contacted. This was a very important aspect of combating trafficking in women. The appointment of a national rapporteur also afforded the chance to exchange information with the United Nations Special Rapporteur on Violence against Women. Indeed, international cooperation could be consolidated to combat that very serious problem.

Asked to whom the national rapporteur reported, the representative said that the national rapporteur would report, in the first place, to the Cabinet, and in particular, to the Minister of Justice. The report would then be sent to the Parliament, which would be most interested in the results of the research.

The representative reported that a study on gender-based violence had been commissioned in December 1999 and launched in the spring of 2000. It centred on the question of the significance of the CEDAW Convention in preventing and eliminating such violence.

In response to a specific question regarding the CEDAW Convention against Transnational Organised Crime, the representative said the Netherlands had been active in those negotiations and had signed the Convention, as well as two Protocols on trafficking and smuggling, in December 2000 in Palermo. The Government intended to ratify those three instruments.

4.3. Concluding comments

The CEDAW Committee further commends the Government on its programme to combat trafficking, in particular the appointment of the National Rapporteur on Traffic of Persons, whose aim is to provide the Government with recommendations on how best to tackle the problem of trafficking, and for its commitment to combat this phenomenon at the level of the European Union.

Noting the recent legislation on the abolition of the ban on brothels, which came into effect in October 2000, the CEDAW Committee emphasises that prostitution poses for women risks of exploitation and violence.

The CEDAW Committee urges the Government to begin monitoring this law immediately and provide, in its next report, an assessment of the intended as well as unintended effects of the law, including those pertaining to risks of violence and to health, in particular with regard to those women without residence permits who are engaged in prostitution. The CEDAW Committee also urges the Government to increase its efforts to provide training and education to prostitutes in order to ensure that they have a full range of options for earning their livelihood.

The CEDAW Committee expresses concern about non-European women who have been trafficked, who fear expulsion to their countries of origin and who might lack the effective protection of their Government upon their return.

The CEDAW Committee urges the Government of the Netherlands to ensure that trafficked women are provided with full protection in their countries of origin or to grant them asylum or refugee status.

A reading of the shadow report in juxtaposition to the information provided by the Government representative illuminates several incongruities. Whereas national law allows for the prosecution of traffickers, victims of trafficking are not enabled to report in practice; or whereas in theory it is possible to seek asylum, women end up in hopeless asylum seeking situations because legal and other organisations are ill informed about the protection available. The fact that they are survivors of trafficking is ignored or not recognised and consequently, they do not receive full protection. In addition, although temporary residence permits may be granted to survivors, no assistance to build a future through providing skills training, housing or work permits is given. These examples elucidate the importance of the review process in identifying areas within the field of anti-trafficking measures that require improvement. Having identified these areas, a look at the catalogue of measures prescribed by the CEDAW Convention helps determining the state obligation in question.

With regard to the examples of the Dutch reports, the broad provisions of Article 3, which require State parties to take appropriate measures in all fields to ensure women's full development and enjoyment of human rights[19] and Article 4, which provides for temporary special measures, need to be used to challenge the gaps in State action.

5. Summary

Summing up, the analysis of State reports submitted to the CEDAW Committee has shown that engaging different actors in the process of providing information on the implementation of the CEDAW Convention in the field of eliminating discrimination as a root cause of trafficking, enhances the accuracy of information. At the same time, analysing the dialogue between the CEDAW Committee and the State party, which ensues during the review process, serves to pinpoint areas of concern which mandate targeted measures to be taken by State parties in order to fulfill their CEDAW Convention obligations.

On a different note, an analysis of the State reports review of China, Thailand, Sweden and the Netherlands reveals that the issues to be addressed in sending countries differ greatly from those in receiving countries. In the former, it is not only matters directly related to trafficking against women, which need to be addressed. Instead, it is issues that refer to the broader concern of discrimination against women, matters pertaining to the empowerment of women and those aspects of culture that differentiate between women and men in stereotypical ways that lead to the subordination of women. These aspects make women vulnerable to trafficking. In receiving countries, however, the issues to be tackled revolve around laws and programmes relating to the criminalisation of trafficking and slave-like conditions of work, cross border crime control, the sensitivity of authorities to legal and illegal immigrant women and their problems, issues of asylum law and issues concerning the provision of security measures for women seeking to free themselves from traffickers.

III. THE OPTIONAL PROTOCOL TO THE CEDAW CONVENTION

In October 1999, the General Assembly of the United Nations adopted the Optional Protocol to the Convention on the Elimination of Discrimination against Women.[20] A year later, ten states had ratified the Optional Protocol, allowing it to enter into force on 22 December 2000 in accordance with Article 15.

A. Objectives

With reference to the various international human rights instruments, which enshrine equal rights for men and women and the principle of non-discrimination, the preamble of the Optional Protocol reiterates the commitment of State parties to ensure women's full and equal enjoyment of human rights and fundamental freedoms. To achieve this, the Optional Protocol provides a course of action to prevent or remedy violations of these rights and freedoms. It is closely modeled after other United Nations human rights complaints procedures and incorporates a range of practices of other treaty bodies. Mainly, it establishes a communication procedure that allows individuals and groups of women to complain about violations of the CEDAW Convention provisions, as well as an inquiry procedure, which permits the CEDAW Committee to conduct inquiries into grave or systematic abuses of women's human rights in countries that are State parties.

B. Key Provisions

Article 1 establishes the competence of the CEDAW Committee to receive and consider communications under the protocol.

Article 1
A State Party to the present Protocol recognises the competence of the Committee on the Elimination of Discrimination against Women to receive and consider communications submitted in accordance with Article 2.

Article 2 sets up the communications procedure, followed by Articles 3 to 7, which lay out the rules governing this procedure. In detail, these provisions stipulate that individuals or groups of individuals are enabled to submit a complaint to the CEDAW Committee once all available domestic remedies have been exhausted. This admissibility criterion may be waived if these remedies are unlikely to be effective in the pursuit of relief of a violation of the CEDAW Convention. A complaint may also be submitted on behalf of an individual if the person concerned has consented or it is explained why that consent was not received. Article 4 spells out further admissibility criteria such as that the CEDAW Committee considers only those complaints which have not been examined by the CEDAW Committee or any other treaty body previously and which are compatible with the provisions of the CEDAW Convention and is not an abuse of the right to submit a communication. Furthermore, the allegations presented must be substantiated and the facts that are presented to the CEDAW Committee must have occurred after the State party in question has ratified the Optional Protocol. For a general overview, a complaint to the CEDAW Committee under the communications procedure is admissible if the following criteria are given:

If the facts of the complaint brought before the CEDAW Committee mandate interim measures to avoid irreparable damage to the victim of the alleged violation, Article 5 permits the CEDAW Committee to present such measures for urgent consideration to the State party concerned. This does not affect the determination of the merits of the communication.

Unless the complainant consents to the disclosure of their identity to the State party in question, Article 6 stipulates that the CEDAW Committee shall bring the communication to the attention of the State party in a confidential manner. A timeframe of 6 months is provided for the State party to submit written explanations or statements regarding the alleged violation of the CEDAW Convention and/or remedies taken.

As an additional procedure, Article 8 establishes the inquiry procedure, which allows the CEDAW Committee to embark on a confidential investigation into grave or systematic violations of the CEDAW Convention - if necessary and consented to by the State party concerned even by way of a visit to its territory. Any findings of the CEDAW Committee will be transmitted to the State party to which it is possible to respond within 6 months. After this period has passed, Article 9 permits the CEDAW Committee to invite the State party to provide information on remedies taken as a follow-up measure to the inquiry.

For those states wishing to ratify the Optional Protocol but unable to recognise the competence of the CEDAW Committee to conduct inquiries, Article 10 provides an opt-out clause. However, no other modifications are possible as Article 17 prohibits all reservations to this protocol. Thus, states that ratify the Optional Protocol are bound by the entirety of its provisions.

C. Obligations arising from the Optional Protocol

State parties to the Optional Protocol first and foremost recognise the competence of the CEDAW Committee to receive and consider on the merits communications submitted in accordance with Article 2 of the Protocol. Furthermore, they agree to consider requests of the CEDAW Committee to take interim measures designed to avoid possible irreparable damage to an individual whose rights are allegedly violated. After the CEDAW Committee has examined the complaint and transmitted the findings to the State concerned, Article 7 paragraph 4 requires the State party to duly consider the views and recommendations of the CEDAW Committee on the issue in question. In addition, the State party is obligated to submit within six months a written response with information on action taken in view of the CEDAW Committee's recommendations.

With regard to State obligations under the inquiry procedure, Article 8 requires the State party concerned to cooperate with the CEDAW Committee in the examination of information concerning grave and systematic violations of the CEDAW Convention by way of sharing information and offering observations on the matter. This cooperation extends to consenting to visits by CEDAW Committee members if the facts of the matter so warrant. Similar to the communications procedure, Article 9 requires the State party to respond to the CEDAW Committee's findings, comments and recommendations within six months by way of submitting its observations to the CEDAW Committee. However, accepting the obligations arising from the inquiry procedure is not mandatory when ratifying the Optional Protocol. Rather, states considering ratifying the Protocol are provided with an opt-out clause in Article 10.

This provision allows states to become party to the Protocol without being bound by the inquiry procedure. State parties, which do so, are consequently only bound by the obligations arising from the communications procedure.

As far as general obligations with regard to the communications procedure are concerned, States party to the Optional Protocol agree to take all appropriate steps to ensure that individuals under its jurisdiction are not subjected to ill treatment or intimidation as a consequence of submitting a complaint to the CEDAW Committee. This obligation is enshrined in Article 11 of the Protocol. To facilitate effective and broad use of this complaint mechanism, Article 13 requires State parties to make the CEDAW Convention and the provisions of its Optional Protocol widely known as well as make the findings of the CEDAW Committee with regard to the State party concerned available to the general public.

D. Relationship with the CEDAW Convention

The Optional Protocol serves as a supplement to the CEDAW Convention and provides a new avenue for implementation and enforcement of the CEDAW Convention provisions. As such, only State parties to the CEDAW Convention are eligible to ratify the Protocol. As with other international human rights treaties and their respective supplementary Optional Protocols, the Optional Protocol to the CEDAW Convention is a treaty in its own right and requires signing, ratifying or acceding to the main treaty. This may be done by depositing an instrument of ratification or accession with the Secretary-General of the United Nations. Similarly, only those complaints concerning alleged violations of the CEDAW Convention by a State party to both the CEDAW Convention and the Optional Protocol may be brought before the CEDAW Committee.

IV. USING THE CEDAW CONVENTION AND ITS OPTIONAL PROTOCOL TO COMBAT TRAFFICKING IN WOMEN AND CHILDREN

As mentioned earlier in this chapter, placing the fight against trafficking in women within the framework of one particular provision of the CEDAW Convention only does not do justice to the complexity of the issue. Although a clear prohibition of trafficking in women as found in Article 6 of the CEDAW Convention mandates State parties to take measures to prevent and punish cases of trafficking as well as protect those vulnerable to the practice, the complex array of root causes demands a more comprehensive approach. This comprehensive approach requires analysing the different factors contributing to trafficking and subsequently addressing these within the framework of the CEDAW Convention.

Advocates and stakeholders in search of identifying factors that contribute to trafficking in a particular country are advised to turn to the periodic reports submitted to the CEDAW Committee by the State party in question. An analysis of the information presented both by the Government and, if applicable, by NGO shadow reports, offer valuable insight into areas of the de jure and de facto situation of women. Thus, violations of the CEDAW Convention and issues deserving of improvement may be easily identified.

To remedy these violations, it is suggested to go beyond Article 6 of the CEDAW Convention, which merely states that States have an obligation to suppress trafficking in women. Rather, it is recommended to use various relevant articles of the CEDAW Convention as well as General Recommendation No.19 as issued by the CEDAW Committee in a holistic approach to the issue, as it is inappropriate to look for comprehensive solutions within the text of the treaty only.

As far as means and mechanisms of addressing the exposed violations of the CEDAW Convention is concerned, advocates on the issue may use the CEDAW Convention as an advocacy tool to achieve their goal of ending discrimination of women. The CEDAW Convention is, however, also applicable in national courts of State parties, which have either incorporated the CEDAW Convention directly or in the form of a national law passed by parliament. The adoption of a complaints procedure provides an additional avenue for action in those countries, which have ratified the Optional Protocol. It provides the framework for effective enforcement of the CEDAW Convention provisions by endowing an independent body of international experts with the competence of receiving complaints about individual violations and investigating into systematic violations.

The communications procedure, as an individual complaints procedure, may prove useful in remedying violations of those CEDAW Convention provisions, which have occurred during the process of trafficking. It allows women who are nationals of a State party to the Optional Protocol and have been rescued from being trafficked to lodge a complaint at the international level if the national judicial system has failed to provide relief, thereby expanding the avenues of redress significantly. This route guarantees individual remedies for specific violations and places the survivor at the centre of the proceedings, thereby providing her with full ownership of judicial redress.

In a similar vein, the inquiry procedure provides a useful tool to investigate systematic violations of women's human rights, which may lie at the heart of women's vulnerability to trafficking. These may concern any number of systematic violations of women's rights, such as economic rights, property rights, right to education or systematic discrimination in connection with women's social status.

As a result, the CEDAW Convention may be used in different ways to combat trafficking. Choosing a mechanism will depend on the nature of violation in question, the status of the CEDAW Convention and the Optional Protocol of the country concerned as well as the desired result.

V. CONCLUSION

This chapter has pointed out the relevance of the CEDAW Convention to combating trafficking in women and has attempted to provide a methodology for its application. By using the definition of discrimination in Article 1 of the CEDAW Convention, it is possible to identify a wide range of women's rights violated during the process of trafficking. To remedy these violations, it is suggested to not only invoke Article 6 of the CEDAW Convention, which expressly requires State parties to suppress trafficking in women. Instead, it is recommended to use various relevant articles of the CEDAW Convention as well as General Recommendation No.19.

As a first step, it is of utmost importance to analyse the circumstances surrounding the problem of trafficking and, as a second step, to work out the applicability of the CEDAW Convention. This chapter has presented the process of the CEDAW Committee's review of selected State Party reports as providing the information necessary to identify the circumstances surrounding trafficking. In so doing, it is suggested not to consider the Concluding Comments of the CEDAW Committee in isolation as they often spell out the desired outcome only and may not contain enough guidance as to what specific action the State party should take to fulfill the intentions of the Concluding Comments. However, taken together with the constructive dialogue of the CEDAW Committee and the NGO shadow report, a whole set of circumstances pertinent to the specific country situation opens up. This facilitates a more rigorous approach to the implementation of the Concluding Comments. As a result, the CEDAW Committee's review is a very useful process that provides guidance to State Parties on how to implement their obligations under the CEDAW Convention. State Parties are encouraged to report regularly to the CEDAW Committee to benefit from this guidance. What is also needed is a monitoring and follow-up of the CEDAW Committee's review in which all parties concerned, State representatives as well as NGOs, come together.

In addition, this chapter has laid out the principles of using the Optional Protocol to the CEDAW Convention as a means of redressing discrimination of women as a root cause of trafficking. This avenue offers an effective remedy and can prove vital in combating trafficking. As this procedure is not yet widely ratified, it is hoped that the current level of global interest in combating trafficking and awareness of the problem will create momentum for wider ratification.

ENDNOTES

[1] This is an edited version of a paper that appears in the "Resource Guide on Using Legal Instruments to Combat Trafficking in Women and Children" published by ESCAP. A preliminary version of the paper was first presented at the Regional Seminar on Using Legal Instruments to Combat Trafficking in Women and Children, organised by ESCAP in Bangkok, Thailand in August 2001.
[2] As of March 5, 2003.
[3] De jure refers to the situation in law, whereas de facto describes the situation in fact.
[4] The CEDAW Committee drafts General Recommendations. These are statements on the meaning of the CEDAW Convention provisions; on what kind of information should be included in State Party reports. The General Recommendations deal with issues related to specific articles that have been noted as a concern during consideration of reports; and on CEDAW Convention-related issues, such as the impact of reservations. Article 21 empowers the CEDAW Committee to draft such recommendations. The CEDAW Convention currently has 24 General Recommendations.
[5] NGOs wishing to submit a shadow report may write to the CEDAW Committee, care of the Division for the Advancement of Women, Room CD2-1220, P.O. Box 20, United Nations, New York, NY 10017, United States of America. Representatives of accredited NGOs may attend the CEDAW Committee Sessions as observers.
[6] United Nations Division for the Advancement of Women, 2 UN Plaza, DC2-12th Floor, New York, New York 10017, USA, Fax: (1-212) 963 3463, www. un.org/womenwatch/daw.
[7] It is not intended to establish that women are trafficked from China to the Netherlands. These countries have been selected merely as examples of the possible issues arising in both sending and receiving countries.
[8] Third and fourth periodic report reviewed in January 1999.
[9] Prepared by Human Rights in China, December 1998.
[10] Second and third report reviewed in January 1999
[11] Prepared by Foundation for Women and the Global Alliance for Traffic in Women.
[12] Includes concerns raised by the pre-session working group of the CEDAW Committee, the report of the state party and the exchange of views during the review. The source for the exchange of views is the UN press releases.
[13] The CEDAW Committee sees the general prohibition of discrimination as central to combating trafficking. The prevalence of discrimination against women result in the denial of life chances to women and compounds their vulnerability to trafficking.
[14] While attempts were made to extract parts of the dialogue relevant to trafficking issues in the four selected countries, it has not been possible to isolate this issue from prostitution. When there is a demand for the services of prostitutes and where pimps and procurers are not adequately penalised, trafficking against women is more easily facilitated. Hence the dialogue of the CEDAW Committee also flows in and out of trafficking and prostitution.
[15] Fourth and fifth periodic reports (CEDAW/C/SWE/4 and CEDAW/C/SWE/5)
reviewed in July 2001.
[16] Prepared by a consortium of ten non-governmental organisations.
[17] Second and third periodic reports (CEDAW/C/NET/2 and Add.1 and 2, CEDAW/C/NET/3 and Add.1 and 2) reviewed on 6 July 2001.
[18] Prepared by a consortium of twenty-three non-governmental organisations.
[19] The provisions of Article 3 is interpreted by the CEDAW Committee to include enabling conditions or further programmatic measures that need to be taken to enable women to benefit from law, policy or existing programmes.
[20] Resolution A/54/4, 6 October, 1999, opened for signature on 10 December 1999.

ANNEX 1: General Recommendation No.19 adopted by the CEDAW Committee at the 11th Session in 1992

VIOLENCE AGAINST WOMEN

Background
1. Gender-based violence is a form of discrimination that seriously inhibits women's ability to enjoy rights and freedoms on a basis of equality with men.
2. In 1989, the CEDAW Committee recommended that States should include in their reports information on violence and on measures introduced to deal with it (General recommendation 12, eighth session).
3. At its tenth session in 1991, it was decided to allocate part of the eleventh session to a discussion and study on article 6 and other articles of the CEDAW Convention relating to violence towards women and the sexual harassment and exploitation of women. That subject was chosen in anticipation of the 1993 World Conference on Human Rights, convened by the General Assembly by its resolution 45/155 of 18 December 1990.
4. The CEDAW Committee concluded that not all the reports of States parties adequately reflected the close connection between discrimination against women, gender-based violence, and violations of human rights and fundamental freedoms. The full implementation of the CEDAW Convention required States to take positive measures to eliminate all forms of violence against women.
5. The CEDAW Committee suggested to States parties that in reviewing their laws and policies, and in reporting under the CEDAW Convention, they should have regard to the following comments of the CEDAW Committee concerning gender-based violence.
General comments
6. The CEDAW Convention in article 1 defines discrimination against women. The definition of discrimination includes gender-based violence, that is, violence that is directed against a woman because she is a woman or that affects women disproportionately. It includes acts that inflict physical, mental or sexual harm or suffering, threats of such acts, coercion and other deprivations of liberty. Gender-based violence may breach specific provisions of the CEDAW Convention, regardless of whether those provisions expressly mention violence.
7. Gender-based violence, which impairs or nullifies the enjoyment by women of human rights and fundamental freedoms under general international law or under human rights conventions, is discrimination within the meaning of article 1 of the CEDAW Convention. These rights and freedoms include:
(a) The right to life;
(b) The right not to be subject to torture or to cruel, inhuman or degrading treatment or punishment;
(c) The right to equal protection according to humanitarian norms in time of international or internal armed conflict;
(d) The right to liberty and security of person;
(e) The right to equal protection under the law;
(f) The right to equality in the family;
(g) The right to the highest standard attainable of physical and mental health;
(h) The right to just and favourable conditions of work.
8. The CEDAW Convention applies to violence perpetrated by public authorities. Such acts of violence may breach that State's obligations under general international human rights law and under other conventions, in addition to breaching this CEDAW Convention.
9. It is emphasised, however, that discrimination under the CEDAW Convention is not restricted to action by or on behalf of Governments (see articles 2(e), 2(f) and 5). For example, under article 2(e) the CEDAW Convention calls on States parties to take all appropriate measures to eliminate discrimination against women by any person, organisation or enterprise. Under general international law and specific human rights covenants, States may also be responsible for private acts if they fail to act with due diligence to prevent violations of rights or to investigate and punish acts of violence, and for providing compensation.
Comments on specific articles of the CEDAW Convention
Articles 2 and 3
10. Articles 2 and 3 establish a comprehensive obligation to eliminate discrimination in all its forms in addition to the specific obligations under articles 5-16.
Articles 2(f), 5 and 10(c)
11. Traditional attitudes by which women are regarded as subordinate to men or as having stereotyped roles perpetuate widespread practices involving violence or coercion, such as family violence and abuse, forced marriage, dowry deaths, acid attacks and female circumcision. Such prejudices and practices may justify gender-based violence as a form of protection or control of women. The effect of such violence on the physical and mental integrity of women is to deprive them the equal enjoyment, exercise and knowledge of human rights and fundamental freedoms. While this comment addresses mainly actual or threatened violence the underlying consequences of these forms of gender-based violence help to maintain women in subordinate roles and contribute to the low level of political participation and to their lower level of education, skills and work opportunities.
12. These attitudes also contribute to the propagation of pornography and the depiction and other commercial exploitation of women as sexual objects, rather than as individuals. This in turn contributes to gender-based violence.
Article 6
13. States parties are required by article 6 to take measures to suppress all forms of traffic in women and exploitation of the prostitution of women.
14. Poverty and unemployment increase opportunities for trafficking in women. In addition to established forms of trafficking there are new forms of sexual exploitation, such as sex tourism, the recruitment of domestic labour from developing countries to work in developed countries and organised marriages between women from developing countries and foreign nationals. These practices are incompatible with the equal enjoyment of rights by women and with respect for their rights and dignity. They put women at special risk of violence and abuse.
15. Poverty and unemployment force many women, including young girls, into prostitution. Prostitutes are especially vulnerable to violence because their status, which may be unlawful, tends to marginalise them. They need the equal protection of laws against rape and other forms of violence.
16. Wars, armed conflicts and the occupation of territories often lead to increased prostitution, trafficking in women and sexual assault of women, which require specific protective and punitive measures.
Article 11
17. Equality in employment can be seriously impaired when women are subjected to gender-specific violence, such as sexual harassment in the workplace.
18. Sexual harassment includes such unwelcome sexually determined behaviour as physical contact and advances, sexually coloured remarks, showing pornography and sexual demand, whether by words or actions. Such conduct can be humiliating and may constitute a health and safety problem; it is discriminatory when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment, including recruitment or promotion, or when it creates a hostile working environment.
Article 12
19. States parties are required by article 12 to take measures to ensure equal access to health care. Violence against women puts their health and lives at risk.
20. In some States there are traditional practices perpetuated by culture and tradition that are harmful to the health of women and children. These practices include dietary restrictions for pregnant women, preference for male children and female circumcision or genital mutilation.
Article 14
21. Rural women are at risk of gender-based violence because traditional attitudes regarding the subordinate role of women that persist in many rural communities. Girls from rural communities are at special risk of violence and sexual exploitation when they leave the rural community to seek employment in towns.
Article 16 (and article 5)
22. Compulsory sterilisation or abortion adversely affects women's physical and mental health, and infringes the right of women to decide on the number and spacing of their children.
23. Family violence is one of the most insidious forms of violence against women. It is prevalent in all societies. Within family relationships women of all ages are subjected to violence of all kinds, including battering, rape, other forms of sexual assault, mental and other forms of violence, which are perpetuated by traditional attitudes. Lack of economic independence forces many women to stay in violent relationships. The abrogation of their family responsibilities by men can be a form of violence, and coercion. These forms of violence put women's health at risk and impair their ability to participate in family life and public life on a basis of equality.
Specific recommendation
24. In light of these comments, the Committee on the Elimination of Discrimination against Women recommends that:
(a) States parties should take appropriate and effective measures to overcome all forms of gender-based violence, whether by public or private act;
(b) States parties should ensure that laws against family violence and abuse, rape, sexual assault and other gender-based violence give adequate protection to all women, and respect their integrity and dignity. Appropriate protective and support services should be provided for victims. Gender-sensitive training of judicial and law enforcement officers and other public officials is essential for the effective implementation of the CEDAW Convention;
(c) States parties should encourage the compilation of statistics and research on the extent, causes and effects of violence, and on the effectiveness of measures to prevent and deal with violence;
(d) Effective measures should be taken to ensure that the media respect and promote respect for women;
(e) States parties in their reports should identify the nature and extent of attitudes, customs and practices that perpetuate violence against women and the kinds of violence that result. They should report on the measures that they have undertaken to overcome violence and the effect of those measures;
(f) Effective measures should be taken to overcome these attitudes and practices. States should introduce education and public information programmes to help eliminate prejudices that hinder women's equality (recommendation No. 3, 1987);
(g) Specific preventive and punitive measures are necessary to overcome trafficking and sexual exploitation;
(h) States parties in their reports should describe the extent of all these problems and the measures, including penal provisions, preventive and rehabilitation measures that have been taken to protect women engaged in prostitution or subject to trafficking and other forms of sexual exploitation. The effectiveness of these measures should also be described;
(i) Effective complaints procedures and remedies, including compensation, should be provided;
(j) States parties should include in their reports information on sexual harassment, and on measures to protect women from sexual harassment and other forms of violence of coercion in the workplace;
(k) States parties should establish or support services for victims of family violence, rape, sexual assault and other forms of gender-based violence, including refuges, specially trained health workers, rehabilitation and counselling;
(l) States parties should take measures to overcome such practices and should take account of the CEDAW Committee's recommendation on female circumcision (recommendation No. 14) in reporting on health issues;
(m) States parties should ensure that measures are taken to prevent coercion in regard to fertility and reproduction, and to ensure that women are not forced to seek unsafe medical procedures such as illegal abortion because of lack of appropriate services in regard to fertility control;
(n) States parties in their reports should state the extent of these problems and should indicate the measures that have been taken and their effect;
(o) States parties should ensure that services for victims of violence are accessible to rural women and that where necessary special services are provided to isolated communities;
(p) Measures to protect them from violence should include training and employment opportunities and the monitoring of the employment conditions of domestic workers;
(q) States parties should report on the risks to rural women, the extent and nature of violence and abuse to which they are subject, their need for and access to support and other services and the effectiveness of measures to overcome violence;
(r) Measures that are necessary to overcome family violence should include:
(i) Criminal penalties where necessary and civil remedies in cases of domestic violence;
(ii) Legislation to remove the defence of honour in regard to the assault or murder of a female family member;
(iii) Services to ensure the safety and security of victims of family violence, including refuges, counselling and rehabilitation programmes;
(iv) Rehabilitation programmes for perpetrators of domestic violence;
(v) Support services for families where incest or sexual abuse has occurred;
(s) States parties should report on the extent of domestic violence and sexual abuse, and on the preventive, punitive and remedial measures that have been taken;
(t) States parties should take all legal and other measures that are necessary to provide effective protection of women against gender-based violence, including, inter alia:
(i) Effective legal measures, including penal sanctions, civil remedies and compensatory provisions to protect women against all kinds of violence, including inter alia violence and abuse in the family, sexual assault and sexual harassment in the workplace;
(ii) Preventive measures, including public information and education programmes to change attitudes concerning the roles and status of men and women;
(iii) Protective measures, including refuges, counselling, rehabilitation and support services for women who are the victims of violence or who are at risk of violence;
(u) States parties should report on all forms of gender-based violence, and such reports should include all available data on the incidence of each form of violence and on the effects of such violence on the women who are victims;
(v) The reports of States parties should include information on the legal, preventive and protective measures that have been taken to overcome violence against women, and on the effectiveness of such measures.

 

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