Inaugural guest post: Elizabeth Evatt AC on CEDAW and its Optional Protocol

 

 

 

 

 

Though I am a novice in the world of blogs, this one has excited my interest.  The reasons are not hard to find.  It is a valuable source of information and inspiration for those who, like me, believe that international law can be a force for progress in human rights, and in equality rights for women.  

There is no doubt that progress is needed.  For centuries, law and custom put women in a subordinate role.  Some countries continue to deny equal citizenship rights to women.  They have far less access to education, and are not treated equally in employment.  Forced marriage affects many, and in many cultures married women remain under the dominion of their husbands.

There is an alarming world-wide incidence of violence against women, sexual violence, genital mutilation and trafficking of women and children.  This violence against women often is left unpunished; lesser sentences are imposed on murderers who kill their wives for reasons of honour.  Only recently, Moroccan women rallied to call for the repeal of their laws which grant immunity to a rapist if he marries his victim.  Some countries allow cruel punishments to be imposed on women, such as whipping and stoning for adultery (heavier punishment than that accorded to males).  Serious discrimination against women continues to flourish throughout the world, depriving women of the equal enjoyment of rights.

These violations of rights, often criminal in nature, are committed in contravention of international standards of human rights and women’s rights that apply to the countries in question.  Unfortunately, these international standards are not well enough known and not well enough respected by the states that have undertaken to apply them.

There is a desperate need to ensure greater respect for, and more effective enforcement of international standards to overcome all discrimination against women.  This is a cause in which all women can join.  History shows that women acting together can achieve progress in the protection of their rights.  In the 1970s, thousands of women around the world pressed the United Nations to adopt and implement an international Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).

When the Committee on the Elimination of Discrimination against Women (CEDAW Committee), the body that oversees the implementation of CEDAW, began work in the 1980s, the cold war was still an obstacle to international progress.  Nevertheless, the CEDAW Committee, made up of women from every region of the world, was united in the desire to advance the cause of women and to ignore as far as possible international political divisions.

The Committee forged ahead in its task of calling states to account for the appalling situation of millions of women.  As each State Party to CEDAW came before the Committee to report on the situation of women, they were challenged to tell the Committee not what their Constitution and laws provided (these were often blandly reassuring) but to provide facts about the reality for women in their countries.

To question countries effectively, the Committee had to find out about the status of women in the countries coming before it for consideration.  UN materials were useful, but they could only give cold statistical data.  The Committee needed to dig out the real issues which confronted women in the countries concerned.  With encouragement from the Committee, individual women and women’s groups (NGOs) in those countries took on the task of helping the Committee by providing realistic information.

As time went by, the Committee began to receive information and ‘alternative’ reports from women’s NGOs, both domestic and international, highlighting the real issues for women.  This material has enabled the Committee to understand more fully the extent of discrimination, exclusion, subordination, poverty, never-ending labour and maternal mortality, which was the lot of so many women.  When states appear before the Committee, it can ask questions based on this material and challenge the states to explain what is being done to remedy the situation.  

After questioning the state, the CEDAW Committee drafts its own Concluding Observations about the progress or lack of progress in protecting women’s rights, and makes proposals for improvement in laws and policies.  It then becomes the responsibility of the states, with encouragement from NGOs and others, to take up the Committee’s recommendations and suggestions.  Women in the country can use the Committee’s conclusions to press for reform. States have to return to the Committee at intervals to explain what steps they have taken to implement the Committee’s proposals.

After examining reports from many states, the Committee discerned repeated patterns of discrimination.  It drew up commentaries on particular provisions of CEDAW, based on these patterns, explaining how the provisions of CEDAW should be applied to these issues.  These comments (General Recommendations) explain in some detail how CEDAW should be implemented by states.  These comments are the basis of the Committee’s jurisprudence.

An important example relates to violence against women. CEDAW does not itself mention violence, but the Committee, based on its experience, defined gender based violence as discrimination against women, and insisted that all States Parties to CEDAW had a duty to take effective action to prevent and penalize such violence. It adopted and issued a General Recommendation on Violence against Women (No 12, 1989). 

Other General Recommendations relate to such matters as the obligations of states in regard to temporary special measures (no 25, 2004); and the obligations of states in respect of women’s health and access to health services (No 24, 1999).  There are now 28 General Recommendations, covering many aspects of CEDAW.  These are all accessible here.  These General Recommendations are a valuable resource for anyone who is considering making a complaint (communication) to the Committee, or who is interested in the scope of CEDAW.

The Committee’s efforts in calling states to account were hindered in the early years in a number of ways.  The Committee had originally been set up by the UN member States in a rather half-hearted way.  It was given very limited meeting times and resources.  As more and more states became parties to CEDAW, the Committee became increasingly strained to carry out its task.  By now, 187 States, nearly every member state of the UN, have become parties to CEDAW (glaring exceptions include the US, Somalia, Iran, Sudan). Another weakness was that CEDAW had not been given a procedure enabling individuals to complain of alleged violation of their rights, though several other human rights committees did have this option.

After much lobbying, the Committee was given extra time and resources for its work.  Women’s groups began work on a draft Protocol to CEDAW, to allow individual complaints to be made.  This initiative was soon transferred to the Committee itself, and proceeded through the UN system.  The Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (Optional Protocol) was adopted by the UN General Assembly in 1999, and came into force in 2000.  This Protocol enables women to complain about violation of their rights, and also provides for the Committee to initiate an inquiry into the situation in a particular state where it is informed that there are grave or systematic violations of women’s rights there.  The Protocol applies only to states that have agreed to accept its provisions.  There are now such 104 States Parties, including Australia.

CEDAW and the Protocol are of special importance in Australia, since our Commonwealth Sex Discrimination Act 1984 was passed in order to give effect to CEDAW, and relied on CEDAW as a head of power.  The Optional Protocol could also become an effective tool for those who are interested in advancing women’s equality.

The first step is to be aware of the scope of CEDAW and the Protocol.  This can best be found in the extensive jurisprudence developed by the Committee, consisting of its General Recommendations and its determinations under the Optional Protocol.  This blog provides access to all this jurisprudence, which is essential to an understanding of CEDAW. 

Some examples can illustrate this point.  One of the Committee’s earliest cases under the Optional Protocol related to domestic violence.  The Committee found that Hungary had violated the rights of the complainant under the Convention by failing “in its duty to provide her with effective protection from the serious risk to her physical integrity, physical and mental health and her life from her former common law husband.”  In reaching its conclusions, the Committee drew extensively on its General Recommendation No 19 on violence against women. (Communication No. 2/2003, Ms. A. T. v. Hungary (Views adopted on 26 January 2005)).  The Committee recommended action to support and protect the complainant, and general action to assure victims of domestic violence the maximum protection of the law by acting with due diligence to prevent and respond to such violence against women. 

In another more recent example, when the Committee determined that Brazil had violated article 12(2) of CEDAW (relating to health care) in respect of a woman who had died as a result of complications of pregnancy, it referred expressly to its General Recommendation No 24 outlining the obligations of the State to ensure safe motherhood. The State had failed to ensure that the deceased received appropriate services in connection with her pregnancy (Alyne da Silva Pimentel Teixeira (deceased) v. Brazil, CEDAW, UN Doc CEDAW/C/49/D/17/2008 (10 August 2011)).  The Committee called on Brazil to adopt measures to ensure women’s right to safe motherhood and affordable access to adequate emergency obstetric care.

To make use of the Optional Protocol in Australia, it is important to be aware of the gaps in the protection of equality rights in this country.  These may arise because of exemptions to our legislation or because decisions are not in line with CEDAW’s provisions.  If a woman makes a complaint under the Sex Discrimination Act 1984 and considers that the outcome is not compatible with CEDAW obligations, it may be possible to take the matter to the CEDAW Committee, to consider whether there is a violation of CEDAW rights.

A request for an inquiry under the Optional Protocol could be considered where there appeared to be a situation of grave and systematic violations of rights.  For example, indigenous women might consider that they are discriminated against as victims of violence, due to the lack of protective services or law enforcement.  Women prisoners might consider that they are discriminated against in the provision of health care or rehabilitation services.  

I welcome this blog, because I believe that the Optional Protocol could be a valuable new tool for making women’s rights effective.  But it will not operate of itself.  It must be understood and used by women whose equality is its ultimate aim.  The blog will help enormously to educate and inform those whose interests are involved.

International women’s rights have always had a dynamic and interactive aspect. It was women of many countries, individuals and NGOs, who pressed for CEDAW to be adopted, and who supported its work and the extension of its functions.  It was women who carried the conclusions and recommendations of the Committee back to their countries to press for changes necessary to give effect to CEDAW.

And it will be women who can help to make this new Protocol effective. 

Elizabeth Evatt AC, former member of the CEDAW Committee and the Human Rights Committee 

3 April 2012

 

Watch this great video of Elizabeth Evatt AC talking about the potential of the Optional Protocol to CEDAW for advancing women’s human rights

 

 

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