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Principles and Elements of a State Parties Report

It is critical that the State party implements its obligations according to the spirit of the CEDAW Convention. Hence, having clarity with regard to the meaning of equality and non-discrimination is essential. 

The CEDAW Convention obligates States to view women as autonomous human beings with equal claims to the exercise of all human rights and fundamental freedoms in the economic, social, cultural and political fields (articles 1 and 3). This means that rights for women should encompass all aspects of life and not be focused on just their roles as wives and mothers. If women are to develop as full human beings, it implicitly requires that stereotypical roles for women are not condoned and male responsibility for the upbringing of children and care of the family has to be promoted by the State (articles 5a and 5b).

In its review, the CEDAW Committee is critical of States whose actions are limited to facilitating the roles of women as mothers and viewing this as promoting women's rights. Nor is it considered adequate to show large numbers of women as target groups for a particular programme or service. The conceptual basis of the programme or service needs to be examined to determine whether it promotes equality and autonomy for women.

Three basic principles of the CEDAW Convention

Under the framework of the CEDAW Convention, rights for women are based on three main principles: the principle of equality, non-discrimination and State obligation. The following section provides a summary of these principles. (For details of these principles, click here instead)

(i)The principle of equality

The principle of equality is central to the CEDAW Convention. The convention promotes the substantive model of equality and consolidates two central approaches to equality. First, it stresses the importance of equality of opportunity in terms of women's access on equal terms with men to the resources of a country. This has to be secured by a framework of laws and policies, and supported by institutions and mechanisms for their operation. But the CEDAW Convention goes beyond this in emphasising that the measure of a State's action to secure the human rights of women and men needs to ensure equality of results. The indicators of State progress, in the eyes of the CEDAW Convention, lie not just in what the State does, but in what the State achieves in terms of real change for women. Article 2 of the CEDAW Convention enjoins States parties to ensure the practical realisation of rights. Thus, the State is obligated to show results, not just stop at a framework of equality that is strong on paper. This approach to equality is referred to as substantive equality. Hence, the CEDAW Convention stresses that the principle of substantiv e equality must inform the practice of institutions. In conclusion, the CEDAW Convention requires the State to implement this treaty using a substantive model of equality which encompasses and ensures the following:

• Equality of opportunity through law, policy, programmes and institutional arrangements;
  
  
• Equality of access by eliminating all obstacles that prevent access to the opportunities as well as taking positive steps to ensure the goal of equality is achieved; and
  
  
• Equality of results.

(ii) The principle of non-discrimination

The second principle that needs to be examined is the principle of non-discrimination. This principle is based on the understanding that discrimination is socially constructed and that it is not an essential or natural principle of human interaction. This recognises the need for and paves the way for concerted action against inequality and the institutional mechanisms which perpetuate it.

How can we recognise discrimination?

The CEDAW Convention defines discrimination in Article 1:

"Anything, (distinction, exclusion, restriction) action/non-action which has the effect or purpose of nullifying or impairing women's enjoyment of rights in all fields."

The above definition is useful because it helps us identify the weaknesses of formal or so called neutral laws and policies. A law or policy may not have the intention or purpose of denying a woman the enjoyment of rights but if it has the effect of doing so because it has not taken into consideration the differences between women and men, then it constitutes discrimination. As mentioned earlier, neutrality (not specifically excluding women) may result in discrimination. Hence, it is not enough to have a policy for the appointment of women in senior positions and then absolving oneself of not being able to implement this policy because there are not enough women who meet the criteria for the position. The non-availability of suitably qualified women is invariably the consequence of past or historical discrimination against women. In this case, the State is obligated to take some form of affirmative action or pro-women remedies to help women overcome the effects of past discrimination. Such actions are essential to ensure access to the opportunity provided.

(iii) The principle of State obligation

Substantive issues

State obligation as envisioned by the CEDAW Convention arises out of the understanding of what equality means and how it can be achieved. The CEDAW Convention obligates governments to base their initiatives for women on the following principles:

• Not just guarantees of rights but ensuring the realisation of rights (article 2a).
  
  
• Obligation of means (through law, policy and programmes) and obligation of results (not just de jure but also de facto) (article 2a).
  
  
• Prohibition of discrimination in law, policy and practice through measures such as anti-discrimination legislation (article 2b). Furthermore, the State is obligated not only to regulate itself (article 2d) but also the actions of private persons, organisations or enterprises (article 2e). This means that the State not only respects the rights of women but also protects them from being violated by others.
  
  
• Elimination of discrimination in the law (article 2f), ensure enforcement of the principle of non-discrimination and provide immediate remedy to combat discrimination where appropriate (article 2c), and put in place programmatic measures to progressively eliminate discrimination (article 3).
  
  
• Accelerate de facto equality by implementing affirmative action (article 4).

Articles 2-4 spell out the broad State obligations while articles 5-16 provide the substance and context in which the principles of State obligation have to be applied. These substantive articles may not show every context of women's lives, but the very fact that the CEDAW Convention obligates States to eliminate all forms of discrimination against women, means that all contexts are included. In particular, article one which defines discrimination helps us to include all contexts.

Methodological issues

Firstly, while the content of State obligation is presented in 16 specific articles, the articles cannot be viewed in isolation. Article one which defines discrimination, articles 2-4 which spells out specific measures required to eliminate discrimination, article 5 which requires the recognition of the adverse effects of customary or cultural practices on the equality status of women, and article 15 which underscores women's right to equality before the law, are overarching articles and need to be taken into consideration when dealing with every issue or article pertaining to women.

Secondly, as mentioned earlier, the substantive articles may not reflect every context of women's lives, but the very fact that the CEDAW Convention obligates States to eliminate all forms of discrimination against women means that every context is included. Article one, which defines discrimination and article 15, which deals with equality before the law helps us to include all contexts.

Thirdly, since the CEDAW Convention obligates the fulfillment of de facto equality, obstacles to the exercise of a specific right which may arise from several quarters need to be established and action taken. This requires that an agency responsible for a particular sector may have to study the adverse effects arising out of another sector. For example, the Ministry of Labour in one country found that its attempts to improve the employment status of women by enacting a law of equal pay for equal work and providing 14 weeks paid maternity leave was thwarted by a provision in the family code which required women to get the permission of their husbands to be employed. Similarly in another country, attempts to contain the problem of domestic violence surfaced the fact that its social policy for housing, which provided housing only to male members of the household, restricted the options of women victims to take action. This was because magistrates would not grant divorce to women victims of domestic violence as they had no options for housing once they were divorced.

The implications are that there has to be holistic approaches to ensure de facto equality. Cross-sectoral links have to be established, consistent and sustained monitoring of the effectiveness of positive State policy law or programmes have to be undertaken and the parameters of data gathering have to be expanded. This further requires the review and reform of institutional arrangements as well as appropriate capacity-building.

Fourthly, the CEDAW Convention obligates the progressive implementation of State obligations. The State is not expected to bring about equality for women immediately. Since the review of progress is made every four years, this provides blocks of four-year periods in which to set priority targets and benchmarks for achievement which can be synchronised with the development plans of the country.