Using CEDAW and its Optional Protocol to advance women’s land and property rights

Dede et al

Graciela Dede, Mayra Gomez and Esther Waweru reflect on how the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and its Optional Protocol can help to advance women’s land and property rights

Women’s rights to land, housing and property remain key areas where women face systematic discrimination and marginalization. According to UN-Women and OHCHR, “[r]egardless of whether a woman lives in a rural or urban setting, land rights also have major implications for the achievement and enjoyment of her human rights such as the right to equality, food, health, housing, water, work and education.” Land rights have been recognized by an increasing number of experts, donors, and advocates as playing a critical role in advancing gender equality, and in tackling issues related to other human rights concerns, such as HIV, gender based violence, and food security. UNDP and Open Society Foundations have put it very simply: “[l]and and housing are extremely empowering for women.”

In Africa, while in terms of political discourse and legal frameworks, women’s land and property rights have received greater attention than ever before in recent years, the reality for women on the ground remains relatively unchanged. The gap between equality under the law (de jure or formal) and equality in practice (de facto or substantive) remains a formidable challenge as progressive laws too often go unimplemented and under-enforced. Women are still faced with land grabbing, disinheritance and a general patriarchal attitude that claims land and property rights are for men, not women. Yet, women are not sitting idly by while their land is being denied or stripped from them – they are organizing, advocating and implementing innovative strategies that gain land justice for themselves and their communities. This work must be complemented by further advocacy at regional and international levels that advances systemic change, including through strategic litigation efforts that strengthen the legal enforcement of women’s rights, and through implementation strategies that recognize the challenges of effective change in practice.

Just how to advance these rights was a major focus of a regional meeting last month held in Nairobi, Kenya on “International Mechanisms to Claim Women’s ESC Rights in Africa,” one of a series of regional workshops organized by the Women and ESCR Working Group (WESCR Working Group) of the International Network for Economic, Social and Cultural Rights (ESCR-Net).  Bringing together over 35 advocates from across the region, and coordinated jointly by the WESCR Working Group, the Kenya Human Rights Commission and the Global Initiative for Economic, Social and Cultural Rights (GI-ESCR), the workshop aimed to address the importance of using CEDAW and its Optional Protocol to advance these rights for women. Several key achievements were highlighted, building upon a growing attention given by the CEDAW Committee to women’s land and property rights, as evidenced earlier this year in the Committee’s Concluding Observations on Eritrea, Gabon, Maldives and Tuvalu.

Over the three days of the workshop, participants engaged in discussions on various issues, such as the use of relevant international and regional human rights mechanisms as key tools to advance the enjoyment of women’s ESC rights, as well as emerging standards and tools in the area of women’s land and property rights, and their use in advocacy in national, regional and international spaces. As a result, advocates discussed opportunities and strategies to utilize CEDAW and its Optional Protocol to claim women’s ESC rights, as well as their land and property rights specifically. Experiences were shared which could help more advocates successfully access the CEDAW Committee in their advocacy. For example, a representative of Tanzania’s Women’s Legal Aid Centre, which along with the International Women’s Human Rights Clinic of Georgetown University Law Center represented two widows from Tanzania who recently won their case against Tanzania using CEDAW’s Optional Protocol for violations related to denial of inheritance based on gender, was on hand during the meeting to share their experience and lessons learned from the legal case. The issue of submitting parallel reports to the Committee was also addressed during the meeting; various organizations shared their experience in building national coalitions to produce the report, in focusing on a specific topic, and in partnering with international organizations. An example of the latter is the experience of Live and Learn Maldives, which partnered with the GI-ESCR earlier this year in presenting a Parallel Report to the CEDAW Committee addressing land issues as related to women’s participation in natural resource governance and disaster management. An important issue discussed was the follow up of concluding observations by the Committee and how to interact with State actors as well as other actors in the field to ensure implementation of recommendations.

These experiences helped to solidify future efforts to use CEDAW and its Optional Protocol to claim women’s ESC rights, and particularly their rights to land, housing and property, and we are hopeful that organizations will continue to strengthen their work and collaborations.

On the horizon we also look forward to a strengthened framework and continued advocacy around these issues. We anticipate the adoption by the CEDAW Committee of a new General Recommendation on the Rights of Rural Women. Earlier this year, at a side event hosted by the GI-ESCR during the Human Rights Council on advancing women’s empowerment through eliminating discrimination in rights to land, housing and water, CEDAW Committee member Ms. Barbara Bailey (Jamaica) in her statement noted that, particularly for rural women, enjoyment of the rights enshrined in the Convention is “hardly possible without access to land.” She stressed the importance of the new General Recommendation, and stressed that it will be “an integral part of CEDAW’s jurisprudence,” which will “place an obligation on States parties to take all necessary measures to empower rural women by eliminating discrimination and protecting their right to land, housing and water.” In an event planned for later this year, the WESCR Working Group also aims to facilitate continued progressive engagement with the UN through a joint consultation with the CEDAW Committee, the Committee on ESCR, and ESCR-Net members, with the aim of discussing developments and exploring opportunities for advancement at the intersection of women and ESC rights, including regarding issues related to land and property.

About the authors

Graciela Dede is the Coordinator of ESCR-Net’s Women and ESC Rights Working Group, Mayra Gomez is the Co-Executive Director of the Global Initiative for Economic, Social and Cultural Rights and Esther Waweru is the Political Pluralism and Diversity Programme Manager with the Kenya Human Rights Commission

Additional resources

ESC-Net Guide Claiming Women’s ESC Rights Using OP-CEDAW and OP-ICESCR

GI-ESCR Guide on Using CEDAW to Secure Women’s Land and Property Rights

Acknowledgment 

The authors would like to thank Susie Talbot, ESCR-Net Senior Legal Officer, for her contributions to the blog. Thanks and acknowledgement is also due to photographer Allen Sarol for generously allowing use of the photo accompanying the blog.   

CEDAW inquiry into grave violence against Aboriginal women in Canada

This post, authored by Meghan Campbell, was first published on the Oxford Human Rights Hub on 25 March 2015 and is republished here with the permission of the author. 

On March 6, 2015 the CEDAW Committee released its second inquiry into grave and systemic violations of CEDAW under the Article 8 of the OP-CEDAW. This inquiry was initiated by the Feminist Alliance for International Action and the Native Women’s Association of Canada. These two organisations alleged grave and systematic violations of CEDAW in relation to the disproportionately high levels of violence experienced by Aboriginal women and girls in Canada. Particularly, they argued Canada was in breach of CEDAW because (i) there was no co-ordinated national action plan to address the root causes of violence; (ii) the failures of law enforcement to protect and prevent violence against Aboriginal women and (iii) there was no national public inquiry into missing and murdered Aboriginal women.

The CEDAW inquiry found a firm factual basis for these allegations. Between 1960 and 2013, 663 Aboriginal women have gone missing or being murdered (para 4). In the period 2000-2008 the murders of Aboriginal women represent 10 per cent of the total number of female homicides, despite the fact that Aboriginal women make up only 3 per cent of the total female population (para 7). Aboriginal women are 3.5 times more likely to experience domestic violence and sexual assault than non-Aboriginal women and 5 times more likely to die of violence (para 3).

Canada did not deny the factual claims but argued that its response to violence against women was sufficient to discharge its obligations under CEDAW. The government provided extensive evidence of the funding, programmes and government studies undertaken to prevent further violence against Aboriginal women (para 32-81).

The main focus of the inquiry was the appropriateness of the Canada’s response. After a country visit, the inquiry concluded that Canada’s efforts to address violence against Aboriginal women and girls were inadequate in light of the gravity of the situation. To meet the due diligence standard under Article 2 of CEDAW the formal framework established by Canada must be in practice be effective and available.

The report provides numerous examples of where Canada has failed Aboriginal women and this post highlights a just a few of the findings from the inquiry. First, the Committee concluded that the federal and provincial studies on violence against Aboriginal often had a limited mandate; the recommendations were at times general or ignored and never implemented (para 100-104). Second, the high incidence of poverty, inadequate housing, lack of education and employment opportunities increases Aboriginal women’s vulnerability to violence (para 112). Although Canada has taken step, the measures ‘have not gone far enough’ (para 117). For example, when asked for information on anti-poverty programmes, Canada it did not provide any specific reference to the needs of Aboriginal women and girls (para 118-19). Third, Aboriginal women are reluctant to report violence to the police ‘mainly due to police behaviour and bias’ (para 138). Stereotypical attitudes of Aboriginal women as prostitutes or runaways engaging in high-risk lifestyles often negatively impacted the quality of the police investigation. (para 136-37, 205). While Canada has taken steps to provide gender sensitivity training for police and has developed protocols on investigating cases of missing and murdered Aboriginal women, these are of limited efficiency due to their non-binding nature and lack of oversight and enforcement mechanisms (para 144).

The inquiry also made important contributions to the development of CEDAW. It re-emphasises the importance of substantive equality by holding that it is not sufficient for Canada to apply the same standards to Aboriginal women as have been applied to others. Aboriginal women are particularly vulnerable and Canada’s response needs to account for their disadvantaged position in society. The Committee also highlighted the importance of addressing poverty in protecting Aboriginal women from violence. While there are no substantive obligations in CEDAW on poverty, the Committee is employing a rich interpreting of the treaty to address an underlying cause of violence against Aboriginal women. The inquiry noted that achieving equality before the law (Article 15) is ‘necessarily related to positive obligations…to fulfil economic and social rights enshrined in CEDAW’ (para 199). At the same time, the full development and advancement of women (Article 3) requires Canada to take positive measures to ensure access to education, housing, transportation and support to families and children.

The inquiry offers a series of recommendations to combat violence, improve socio-economic conditions and eliminate discrimination against Aboriginal women and called for a national public inquiry and plan of action. Canada accepted 34 of the 38 recommendations, but unfortunately it still resists holding a national inquiry and plan of action. Notwithstanding this, the CEDAW inquiry is an important contribution to understanding intersectional discrimination and gender inequality. Hopefully it can form the basis for continued dialogue between government officials and the Aboriginal community so as to end violence against Aboriginal women and girls.

Committee declares asylum communication inadmissible, clarifies extraterritorial effect of CEDAW (Y.W. v. Denmark)

In 2010, Y.W., a Chinese national, sought asylum in Denmark. Y.W. claimed that, if deported to China, she would be killed or subjected to violence by organised criminals, who, as a result of a large gambling debt her former husband raised in her name, had previously threatened and raped her, burned her with hot oil and forced her to work as a prostitute. Y.W. further claimed that Chinese authorities would not protect her effectively because they do not acknowledge gender-based violence against women.

In May 2010, the Danish Immigration Service rejected Y.W.’s asylum claim as manifestly unfounded. It concluded that the acts against her were criminal offences irrelevant to asylum law and she could seek protection from the Chinese authorities.

In January 2013, Y.W. submitted an individual communication to the Committee on the Elimination of Discrimination against Women. She claimed that her deportation to China would constitute a violation by Denmark of articles 1 to 3, 12 and 15 of the Convention on the Elimination of All Forms of Discrimination against Women, read in conjunction with the Committee’s General Recommendation No. 19. Among other things, Y.W. submitted that:

  • she had been discriminated against as a woman in seeking to access to justice because more females than males are denied asylum in Denmark under the “manifestly unfounded” procedure and deported, without the right to appeal
  • she would be subjected to gender-based violence by organised crime elements, if deported to China, and that Chinese authorities would not protect her effectively
  • the State Party, by rejecting her asylum claim, failed to protect her against discrimination against women and violence that would put her life and health at risk
  • while in prison, the State Party failed to provide her treatment for the trauma she suffered as a result of the violence
  • the State Party failed to provide her effective remedies for the violations she experienced.

State Party’s observations on admissibility

The State Party submitted that the Committee should declare the communication inadmissible, as Y.W. had failed to:

The State Party further submitted that the communication should be declared inadmissible ratione loci and ratione materiae, as Denmark’s obligations under CEDAW apply only to people under its jurisdiction and do not extend to violations that another State Party is expected to commit (ie CEDAW lacks extraterritorial effect). It further claimed that, unlike other human rights treaties, CEDAW does not deal with removal to torture or other serious threats to life and the security of a person.

Committee’s decision on admissibility

The CEDAW Committee determined that Y.W. had failed to substantiate her claim sufficiently and declared the communication inadmissible under article 4(2)(c) of the Optional Protocol.

Gender-based violence / non-refoulement

The Committee recalled its General Recommendation No. 28 in which it noted that CEDAW applies both to citizens and non-citizens, including asylum seekers, within a State Party’s territory or control. It also recalled its General Recommendation No. 19, in which it noted that gender-based violence is a form of discrimination against women and violates other human rights, including the right to life and the freedom from torture and other cruel, inhuman or degrading treatment or punishment. It also re-affirmed that, under international human rights law, States Parties must refrain from returning people to a jurisdiction in which he or she may face serious rights violations, including arbitrary deprivation of life or torture or other cruel, inhuman or degrading treatment or punishment, or gender or other forms of persecution.

The Committee rejected the State Party’s claim that CEDAW does not have extraterritorial effect and recalled that article 2(d) imposes an obligation to refrain from discriminating against women and to ensure public authorities and institutions act accordingly. This positive duty, the Committee explained,

encompasses the obligation … to protect women from being exposed to a real, personal and foreseeable risk of serious forms of gender-based violence, irrespective of whether such consequences would take place outside the territorial boundaries of the sending State party: if a State party takes a decision relating to a person within its jurisdiction, and the necessary and foreseeable consequence is that that person’s rights under the Convention will be violated in another jurisdiction, the State party itself may be in violation of the Convention.

The Committee further explained that ‘[t]he foreseeability of the consequence would mean that there was a present violation by the State party, even though the consequence would not occur until later’. It clarified that

[w]hat amounts to serious forms of gender-based violence will depend on the circumstances of each case and would need to be determined by the Committee on a case-by-case basis at the merits stage, provided that the author had made a prima facie case before the Committee by sufficiently substantiating such allegations.

Ultimately, however, the Committee concluded that Y.W. had not sufficiently substantiated her claim that she would be subjected to gender-based violence, if deported to China, and would not receive adequate protection from Chinese authorities. It also emphasised that Y.W. had never sought protection from Chinese authorities.

Access to justice in relation to asylum claim

The Committee recalled its General Recommendation No. 32, in which it affirmed that articles 1-3, 5(a) and 15 of CEDAW require States Parties to ensure women are not discriminated against during any aspect of the asylum process. It further recalled that States Parties should apply a gender-sensitive approach at every stage of the asylum process and ensure women denied asylum are subjected to dignified and non-discriminatory return processes.

Ultimately, however, the Committee concluded that Y.W. had not sufficiently substantiated her claim that she had been discriminated against in seeking access to justice. In this connection, it noted that Y.W. had not informed it of her whereabouts and whether or not she had been deported to China. It further noted the absence of any other pertinent information on file.

Communication No. 51/2013, UN Doc. CEDAW/C/60/D/51/2013 (2015)

Decision

Committee finds inheritance law violates CEDAW (E.S. & S.C. v. United Republic of Tanzania)

Tanzania’s customary inheritance law, as codified in the Local Customary Law (Declaration) (No. 4) Order, establishes patrilineal inheritance rules. E.S. and S.C. are Tanzanian nationals, who entered into customary marriages. When their respective husbands died, they were evicted from their homes by their husbands’ families, did not inherit any of their husbands’ estates and were denied the right to administer the estates.

E.S. and S.C. started legal proceedings requesting that the customary inheritance provisions be struck down on the basis that they contravene the constitutional guarantee of non-discrimination and equal protection and international human rights law, including CEDAW. In 2006, the High Court held the provisions were discriminatory. However, it denied E.S. and S.C. relief and did not overturn the provisions, saying that effecting customary change by judicial pronouncements would open Pandora’s box. According to the Court, the best remedy was to recommend, rather than order, the district councils to amend the provisions.

In 2006, E.S. and S.C filed a notice of appeal, but the Attorney General and Court of Appeal did not respond. In 2007, they submitted a memorandum of appeal in which they requested the Court of Appeal to quash the High Court judgment and declare the impugned provisions unconstitutional, but there was no response. In 2009, they asked the Court’s Chief Justice to decide their appeal quickly, but again received no response. In 2010, they filed a certificate of urgency in which they urged the Court to hear their appeal. The Court said it would list the appeal during its next session. In their written submissions, E.S. and S.C claimed that the High Court erred in abdicating its responsibilities to declare the impugned provisions unconstitutional, despite finding they discriminated against women. The Court dismissed the appeal on a procedural technicality concerning dates on court documents not attributable to E.S. or S.C. and which they later sought to have remedied without success.

E.S. and S.C. subsequently submitted a communication to the Committee on the Elimination of Discrimination against Women, in which they claimed that the State Party had violated articles 2(c), 2(f), 5(a), 13(b), 15(1), 15(2), 16(1)(c) and 16(1)(h) of the Convention on the Elimination of All Forms of Discrimination against Women, read together with the Committee’s General Recommendations Nos. 21 and 27. Specifically, E.S. and S.C. claimed that they were:

  • discriminated against based on their sex/gender and therefore denied the ability to administer and inherit property after their husbands’ deaths and an effective remedy, in violation of articles 2(c), 2(f) and 5(a) of CEDAW
  • denied equal economic rights and opportunities, including access to mortgages and other forms of financial credit, in violation of article 13(b)
  • denied equality before the law, in violation of article 15(1)
  • prevented them from administering their husbands’ property, as their legal capacity was not recognised, in violation of article 15(2)
  • not afforded the same rights as men in the administration and inheritance of property upon the dissolution of marriage, in violation of articles 16(1)(c) and 16(1)(h).

E.S. and S.C. urged the CEDAW Committee to recommend that the State Party permit them to inherit their equal share of their husbands’ estates and serve as estate administrators, and compensate them for their financial and emotional loss. Furthermore, they called on the Committee to recommend that the discriminatory inheritance provisions be abolished or, alternatively, that a law be enacted to guarantee women equal rights to administer and inherit property.

State Party’s observations on admissibility and merits

The State Party made no observations on the admissibility or merits of the communication.

Committee’s decision on admissibility

The CEDAW Committee declared the communication admissible, having found that E.S. and S.C. had sufficiently substantiated their claims, for the purposes of admissibility. It also determined that domestic remedies had been unreasonably prolonged, within the meaning of article 4(1) of the Optional Protocol, and were unlikely to bring E.S. and S.C. effective relief. It explained that the Court of Appeal: had still not examined the appeal submitted by E.S. and S.C. in 2006; took four years to schedule a hearing; and summarily dismissed the appeal due to a minor defect, which was not attributable to E.S. and S.C. and which they sought to remedy several times.

Committee’s views on merits

The CEDAW Committee determined that the State Party violated articles 2(c), 2(f), 5(a), 13(b), 15(1), 15(2), 16(1)(c) and 16(1)(h) of CEDAW, read together with General Recommendations No. 21, No. 28 and No. 29. In doing so, it recalled that States Parties must:

  • adopt appropriate measures to amend or abolish customs that discriminate against women, in line with articles 2(f) and 5(a)
  • adopt appropriate measures to eliminate discrimination against women in marriage and family relations, including at the inception of, during, and at the dissolution of, marriage, in line with article 16
  • adopt intestate succession laws that ensure equal treatment of surviving women and men and prohibit disinheritance of the surviving spouse
  • afford women equal rights to administer property, consistent with articles 15(2) and 16(1)(h), which in the Committee’s view ‘is central to their financial independence and may be critical to their ability to earn a livelihood and to provide adequate housing and nutrition for themselves and for their children, especially in the event of the death of their spouse’
  • take appropriate measures to eliminate discrimination against women in economic and social life, particularly regarding their right to bank loans, mortgages and other forms of financial credit, in line with article 13.

The Committee further recalled that the application of discriminatory customs perpetuates stereotypes and attitudes about the roles and responsibilities of women and prevents them from enjoying equality in the family and in society.

Turning to the facts of the communication, the Committee determined that:

  • the State Party’s legal framework, which treats widows and widowers differently in terms of their access to ownership, acquisition, management, administration, enjoyment and disposition of property (despite a constitutional guarantee of non-discrimination and equality) discriminates against women and led to E.S. and S.C. being unable to administer their husbands’ estates or inherit their husbands’ property, in violation of article 2(f) of CEDAW, together with articles 5, 15 and 16
  • the actions of the judiciary, including the refusal to impugn the customary law provisions (despite finding they were discriminatory), a four-year failure to respond to the appeal and the dismissal of the case on a procedural technicality not attributable to E.S. or S.C., violated article 2(c) of CEDAW
  • the eviction of E.S. and S.C. when their respective husbands died left them economically vulnerable, which restricted their economic autonomy and prevented them from enjoying equal economic opportunities, in violation of article 13 of CEDAW.

The Committee concluded that the State Party, by condoning the legal restraints on women’s inheritance and property rights, denied E.S. and S.C. equality in respect of inheritance and failed to provide them with other means of economic security or adequate redress.

Recommendations

The Committee recommended that the State Party provide E.S. and S.C. adequate reparation and compensation, commensurate with the seriousness of the violations of their rights. It also made several recommendations of a general nature, including that the State Party: ensure CEDAW has precedence over discriminatory customary laws; repeal or amend discriminatory customary laws, including on inheritance, to bring them in line with CEDAW; and hold consultations to foster dialogue on removing discriminatory customary laws.

Communication No. 48/2013, UN Doc. CEDAW/C/60/D/48/2013 (2015)

Decision