New resources on CEDAW and its Optional Protocol
Below is a round-up of recent scholarship on CEDAW and its Optional Protocol uploaded to http://opcedaw.wordpress.com/
Optional Protocol Scholarship
Rebecca J. Cook and Bernard M. Dickens, “Upholding Pregnant Women’s Right to Life” (2012) 117 International Journal of Gynecology and Obstetrics 90
Recent decisions of the Committee on the Elimination of Discrimination against Women (CEDAW), the Inter-American Court of Human Rights, and the High Court of Delhi have shown how the pregnancy-related deaths of individual women have been bases on which these authoritative tribunals have held Brazil, Paraguay, and India respectively accountable for avoidable maternal mortality not only in these cases, but also among their populations more generally. The right to life is the most fundamental of women’s human rights, recognized in international human rights treaties and national laws. Failure of governments to apply their resources adequately to address, respect, and protect this right violates the law of human rights. These cases show, however, that governments may fail to allocate adequate resources to women’s survival of pregnancy. Tribunals can build on the failures in individual cases to set standards of performance to which governments will legally be held to achieve safe motherhood.
Eszter Kismödi et al, “Human Rights Accountability for Maternal Death and Failure to Provide Safe, Legal Abortion: The Significance of Two Ground-breaking CEDAW Decisions” (2012) 20(39) Reproductive Health Matters 31
In 2011, the Committee on the Elimination of Discrimination against Women (CEDAW) issued two landmark decisions. In Alyne da Silva Pimentel v. Brazil, the first maternal death case decided by an international human rights body, it confirms that States have a human rights obligation to guarantee that all women, irrespective of their income or racial background, have access to timely, non-discriminatory, and appropriate maternal health services. In L.C. v. Peru, concerning a 13-year-old rape victim who was denied a therapeutic abortion and had an operation on her spine delayed that left her seriously disabled as a result, it established that the State should guarantee access to abortion when a woman’ s physical or mental health is in danger, decriminalise abortion when pregnancy results from rape or sexual abuse, review its restrictive interpretation of therapeutic abortion and establish a mechanism to ensure that reproductive rights are understood and observed in all health care facilities. Both cases affirm that accessible and good quality health services are vital to women’ s human rights and expand States’ obligations in relation to these. They also affirm that States must ensure national accountability for sexual and reproductive health rights, and provide remedies and redress in the event of violations. And they reaffirm the importance of international human rights bodies as sources of accountability for sexual and reproductive rights violations, especially where national accountability is absent or ineffective.
Open Society Justice Initiative, Case Digests: UN Committee on Elimination of Discrimination against Women (CEDAW) 2004–12 (2012)
Summaries of all decisions on admissibility and merits taken by the UN Committee on the Elimination of All Forms of Discrimination against Women, though to 2012.
Kelly Reeve, “Beyond ‘Equality of Opportunity’ and ‘Equality of Result’: Does the CEDAW Committee in Karen Tayag Vertido v The Philippines Embrace ‘Equality as Transformation’?” (2012) 2(1) Warwick Student Law Review 72
On 16 July 2010, the UN Committee on the Elimination of All Forms of Discrimination against Women issued a landmark decision in the case of Karen Tayag Vertido v The Philippines. It is the first Committee decision on the scope of article 5(a) of the Convention which aims to dismantle the stereotypes and ideologies which are at the root of discrimination against women. This article notes the crucial significance of the methodological approach of identifying stereotypes endorsed by the Committee; it commends the robust approach taken by the Committee in adopting a broad interpretation of discrimination and equality and the Committee’s willingness to go beyond other human rights jurisprudence. Furthermore, it commends the Committee’s extension of the state obligation of due diligence beyond the field of violence against women. However, despite such achievements it is regrettable that the Committee did not go further in articulating the precise obligations of State Parties under articles 2(f) and 5(a) of CEDAW and did not clarify
whether article 5(a) CEDAW has direct effect. Nonetheless, this article concludes that the case signifies a crucial step towards ‘equality as transformation’; a re-structuring of the institutions of society in order to immobilise the perpetuation of women’s oppression.
Elisa Slattery, “Out of the Silo: Using Reproductive Rights Jurisprudence to Litigate Abuses in Healthcare Settings” (2011) 16(4) INTERIGHTS Bulletin 185
Women and girls seeking sexual and reproductive health services frequently experience abuse and mistreatment at the hands of healthcare personnel, who hold clear positions of authority and often exercise significant control over women in these contexts. Reproductive rights violations in healthcare settings include: verbal, physical and sexual abuse; coercive practices, such as forced sterilisation; and denial of abortion and post-abortion care services. These abuses are often exacerbated when the health services they seek, such as abortion, are highly stigmatised or the women themselves belong to a marginalised group. …
Christina Zampas and Adriana Lamačková, “Forced and Coerced Sterilization of Women in Europe” (2011) 114 International Journal of Gynecology & Obstetrics 163
Human rights provisions in laws set by international treaties and national legislatures make individuals’ informed and freely given consent a precondition to the legality of their sterilization. Nevertheless, evidence shows that sterilizations have been undertaken by forceful means or coerced acceptance, to which women do not genuinely consent. The women are often members of ethnic minorities in their countries, such as Roma women, or adolescent or disabled women. Some European governments have acknowledged their responsibility for human rights abuses by forced and coerced sterilization of vulnerable women, and committees established by international human rights treaties to monitor states’ compliance with their standards are increasingly vigilant to expose and condemn wrongful sterilization. For instance, the committee monitoring compliance with the Convention on the Elimination of All Forms of Discrimination against Women and the Council of Europe’s Commissioner for Human Rights provide guidance for the prevention of violations.
Marsha A Freeman, Christine Chinkin and Beate Rudolf (eds), The UN Convention on the Elimination of All Forms of Discrimination against Women: A Commentary (Oxford University Press, 2012)
This volume is the first comprehensive commentary on the Convention on the Elimination of All Forms of Discrimination against Women and its Optional Protocol. The Convention is a key international human rights instrument and the only one exclusively addressed to women. It has been described as the United Nations’ ‘landmark treaty in the struggle for women’s rights’.
The Commentary describes the application of the Convention through the work of its monitoring body, the Committee on the Elimination of Discrimination against Women. It comprises detailed analyses of the Preamble and each article of the Convention and of the Optional Protocol. It also includes a separate chapter on the cross-cutting substantive issue of violence against women. The sources relied on are the treaty language and the general recommendations, concluding observations and case law under the Optional Protocol, through which the Committee has interpreted and applied the Convention. Each chapter is self-contained but the Commentary is conceived of as an integral whole. The book also includes an Introduction which provides an overview of the Convention and its embedding in the international law of human rights.
Frances Raday, “Gender and Democratic Citizenship: The Impact of CEDAW” (2012) 10(2) International Journal of Constitutional Law 512
The substantive equality provisions of CEDAW provide theoretical and normative tools to contend with the growing challenges of traditionalist cultural and religious patriarchy and neoliberal exploitation of women. This holds out promise but a large gap exists between normative policy and social practice. The promise of de jure and de facto equality for women cannot be fulfilled by law and philosophy alone. It remains to translate the formulation and commitment into political, economic, and social action, which will secure women’s capacity to participate as equal actors in the public sphere, to have equal opportunity in the economy, and to live in a state of equal autonomy to that of men in the family. This is the meaning of democratic citizenship for women and it is a condition precedent for a viable democracy for men and women alike.
Judith Resnik, “Comparative (In)equalities: CEDAW, the Jurisdiction of Gender, and the Heterogeneity of Transnational Law Production” (2012) 10(2) International Journal of Constitutional Law 531
A formal model of treaty-making identifies nation-states as pivotal parties to transactions. A formal model of equality rejects distinctions treating women and men differently. Both kinds of formalisms miss practices making plain the permeable boundaries of the nation-state, the variegated texture of transnational lawmaking, and the challenges of materializing equal treatment.
This essay explores these boundary-bendings by examining the affiliations with, reservations to, and antagonism generated by the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), empowering discursive exchanges between the U.N.-based expert committee overseeing CEDAW’s implementation and the ratifying states. Interactions around CEDAW depart from the uniformity and universalism often associated with international law. Rather than a singular formal moment of ratification through a monovocal nation-state, the parties to CEDAW file, and some withdraw, reservations; the CEDAW Committee reviews and questions practices of party-states and episodically issues new general directives; and a few localities make CEDAW domestic law while others aim to ward off any such efforts by general bans on references to “foreign law.”
National treaty reservations and subnational internationalism join other mediating mechanisms—such as judicial doctrines providing a “margin of appreciation” or federalism discounts that permit some deviance among subunits and forms of constitutional pluralism —that reflect constrained affiliations across borders. These diverse legal postures underscore the heterogeneity found in transnational exchanges and, in addition to the positive account of the need to recognize these facets of lawmaking, the normative argument advanced is to appreciate the utilities of disaggregated internationalism that, in the context explored here, reveals the challenges of operationalizing aspirations for equality.
Alexandra R. Harrington, “Don’t Mind the Gap: The Rise of Individual Complaint Mechanisms Within International Human Rights Treaties” (2012) 22 Duke Journal of Comparative & International Law 153