New resources and scholarship on CEDAW and its Optional Protocol

 

CEDAW Committee’s annual report

Report of the Committee on the Elimination of Discrimination against Women, UN Doc. A/68/38 (Supp No 38)

 

Optional Protocol jurisprudence 

Maïmouna Sankhé v. Spain, UN Doc. CEDAW/C/56/D/29/2011 (2013) [inadmissible]

M.E.N. v. Denmark, UN Doc. CEDAW/C/55/D/35/2011 (2013) [inadmissible]

M.K.D.A.-A. v. Denmark, UN Doc. CEDAW/C/56/44/2012 (2013) [inadmissible]    

M.N.N. v. Denmark, UN Doc. CEDAW/C/55/D/33/2011 (2013) [inadmissible]

M.S. v. Denmark, UN Doc. CEDAW/C/55/D/40/2012 (2013) [inadmissible]

 

General Recommendations 

General Recommendation No. 29 on Article 16 of the Convention on the Elimination of All Forms of Discrimination against Women: Economic Consequences of Marriage, Family Relations and their Dissolution, UN Doc. CEDAW/C/GC/29 (2013)

General Recommendation No. 30 on Women in Conflict Prevention, Conflict and Post-Conflict Situations, UN Doc. CEDAW/C/GC/30 (2013)

 

Scholarship

Dru Bhattacharya, “A Critical Assessment of Treaty-Monitoring Bodies: A Case Study of CEDAW’s Optional Protocol” in Dru Bhattacharya, Global Health Disputes and Disparities: A Critical Appraisal of International Law and Population Health (2013), 5

Book synopsis: Global Health Disputes and Disparities explores inequalities in health around the world, looking particularly at the opportunity for, and limitations of, international law to promote population health by examining its intersection with human rights, trade, and epidemiology, and the controversial issues of legal process, religion, access to care, and the social context of illness.  Using a theoretical framework rooted in international law, this volume draws on a wide range of rich empirical data to assess the challenges facing the field, including international legal treaty interpretation, and specific issues related to the application of law in resolving pressing issues in gender, access to care, and social determinants of health. In doing so, it illustrates the challenges for implementing rights-based approaches to address health disparities, with profound implications for future regulations and policymaking. It includes both interviews with leading scholars, as well as a variety of case studies from prominent international forums, including formal claims brought before the Human Rights Council and the Committee on the Elimination of All Forms of Discrimination Against Women, as well as regional and national experiences, drawn from disputes in India, Indonesia, South Africa and the USA.

 

Ramona Biholar, Transforming Discriminatory Sex Roles and Gender Stereotyping: The Implementation of Article 5(a) CEDAW for the Realisation of Women’s Right to be Free From Gender-based Violence in Jamaica (2013)

Gender-based violence against women is a stubborn problem worldwide. It still affects the everyday lives of many women around the world. This scourge has deep social and cultural roots, which foster a vicious cycle of gender violence. Embedded constructions of femininity and masculinity based on ascribed sex roles and consequent gender stereotyping hinder the elimination of gender-based violence and the implementation and full realisation of women’s human rights. At the international level, Article 5(a) CEDAW provides for an agenda for social and cultural transformation: it imposes on States parties to CEDAW an obligation to modify sex roles and stereotypical social and cultural patterns of conduct, and thereby provides for the protection of women from violence stemming from such gender norms. Yet, the lived realities of women are frequently disconnected from this agenda. Nonetheless, it is the reality of the local that is crucial for the articulation, implementation and realisation of internationally set human rights norms. The research in this book has explored the transformation of sex roles and gender stereotyping, and interrogated, in the specific context of Jamaica, the implementation of Article 5(a) for a social and cultural transformation and the realisation of women’s right to be free from gender-based violence.

Based on empirical, socio-legal research, this book advances a synergistic model, which illuminates the multiple actors, actions and strategies, and the organic, integrated interplay between and among them, that are instrumental, at the country level, in putting Article 5(a) in practice. An underlying component of the model is the individual consciousness, where gender and gender constructions operate. Developing a consciousness of the meaning of Article 5(a) and of the gravity of the root-causes of gender-based violence against women is a key dimension to the process of putting this Article into practice. The synergistic model proposed in this book is not only to untangle the tension and mend the fissure between Article 5(a) on paper and the lived realities of women in Jamaica. It is also a model for the implementation of this Article, which contributes in practical ways to the ultimate universal goal of reducing gender-based violence against women and realising women’s human right to a life free from violence. 

Seo-Young Cho, “International Women’s Convention, Democracy, and Gender Equality” (2013) Social Science Quarterly (early view) (unpublished version)

This article empirically investigates the impact of the International Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) on women’s rights.  By measuring commitments to CEDAW based on reservations made by states, this article tests whether the convention enhances women’s economic, social, and political rights.  Using panel data for up to 147 countries for the period of 1981–2007, my findings suggest that CEDAW improves women’s social rights advocating changes in cultural practice toward gender equality and this effect is conditional on the level of democracy of a member state. However, the joint effect of CEDAW and democracy does not seem to create any significant impact on women’s political and economic rights, nor does CEDAW or democracy alone affect any dimension of women’s rights.  These results indicate that collaborative efforts between international law and domestic institution are crucial to promoting gender equality.

Rebecca J. Cook, “Human Rights and Maternal Health: Exploring the Effectiveness of the Alyne Decision” (2013) 41 Journal of Law, Medicine and Ethics 103

This article explores the effectiveness of the decision of the Committee on the Elimination of Discrimination against Women in the case of Alyne da Silva Pimentel Teixeira (deceased) v. Brazil, concerning a poor, Afro-Brazilian woman. This is the first decision of an international human rights treaty body to hold a state accountable for its failure to prevent an avoidable death in childbirth. Assessing the future effectiveness of this decision might be undertaken concretely by determining the degree of Brazil’s actual compliance with the Committee’s recommendations, and how this decision influences pending domestic litigation arising from the maternal death. Alternative approaches include: determining whether, over time, the decision leads to the elimination of discrimination against women of poor, minority racial status in the health sector, and if it narrows the wide gap between rates of maternal mortality of poor, Afro-Brazilian women and the country’s general female population. Determining the effectiveness of this decision will guide whether to pursue a more general strategy of judicializing maternal mortality.

Simone Cusack, “The CEDAW as a Legal Framework for Transnational Discourses on Gender Stereotyping,” in Anne Hellum & Henriette Sinding Aasen, eds., Women’s Human Rights: CEDAW in International, Regional and National Law (Cambridge: Cambridge University Press, 2013), 124

 Book synopsis: As an instrument which addresses the circumstances which affect women’s lives and enjoyment of rights in a diverse world, the CEDAW is slowly but surely making its mark on the development of international and national law. Using national case studies from South Asia, Southern Africa, Australia, Canada and Northern Europe, Women’s Human Rights examines the potential and actual added value of the Convention on the Elimination of All Forms of Discrimination against Women in comparison and interaction with other equality and anti-discrimination mechanisms. The studies demonstrate how state and non-state actors have invoked, adopted or resisted the CEDAW and related instruments in different legal, political, economic and socio-cultural contexts, and how the various international, regional and national regimes have drawn inspiration and learned from each other.

Simone Cusack and Lisa Pusey, “CEDAW and the Rights to Non-Discrimination and Equality” (2013) 14(2) Melbourne Journal of International Law 54

The Committee on the Elimination of Discrimination against Women (‘Committee’) is the leading United Nations treaty body responsible for monitoring the implementation of women’s human rights. This article analyses how the Committee has interpreted the rights to non-discrimination and equality and how it has applied those rights when addressing the situation of individual women under the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women. The analysis shows that the Committee has interpreted the rights to non-discrimination and equality generously and has also adopted a broad approach to the application of those rights in individual communications concerning reproductive health or violence against women. It also shows that the Committee has applied those rights conservatively in communications concerning civil, political or economic matters and in doing so has contributed to the low success rate of those communications. The article argues that the strength of the Committee’s gender analysis has been a determining factor in whether its application of the rights to non-discrimination and equality fulfils the promise of its broad interpretative practice. It urges the Committee to strengthen its gender analysis of individual communications, particularly those concerning civil, political or economic matters, so it can preserve its broad vision of gender equality and ensure women are afforded maximum opportunity to claim their rights under the Convention on the Elimination of All Forms of Discrimination against Women.

Marijke De Pauw, “Women’s Rights: From Bad to Worse? Assessing the Evolution of Incompatible Reservations to the CEDAW Convention” (2013) 29(77) Merkourios: Utrecht Journal of European and International Law 51

The Convention on the Elimination of All Forms of Discrimination against Women is the most important international human rights instrument for the protection of women’s rights worldwide. It is, however, also one of the main UN human rights treaties to which the largest number of reservations has been made. As far-reaching reservations to human rights treaties are detrimental to the effective protection of human rights, this gave rise to the debate on the need to apply a reservations system to such treaties that allows for the efficient protection of their integrity. More specifically, it resulted in the severability approach and treaty bodies claiming their competence to assess reservations’ compatibility. This article aims to contribute to the academic research on reservations to the CEDAW Convention, by studying the evolution of reservation-making to this human rights treaty from a comparative perspective from its entry into force until the present. Through this analysis, the article aims to identify trends and shifts in this practice over time, allowing for a more detailed assessment of the increasing number of incompatible reservations, the Committee’s progress towards a more active approach on reservations, and State’s increasing willingness to object to reservations they find incompatible. 

Anne Hellum and Henriette Sinding Aasen (eds), Women’s Human Rights: CEDAW in International, Regional and National Law (Cambridge University Press, 2013)

As an instrument which addresses the circumstances which affect women’s lives and enjoyment of rights in a diverse world, the CEDAW is slowly but surely making its mark on the development of international and national law. Using national case studies from South Asia, Southern Africa, Australia, Canada and Northern Europe, Women’s Human Rights examines the potential and actual added value of the Convention on the Elimination of All Forms of Discrimination against Women in comparison and interaction with other equality and anti-discrimination mechanisms. The studies demonstrate how state and non-state actors have invoked, adopted or resisted the CEDAW and related instruments in different legal, political, economic and socio-cultural contexts, and how the various international, regional and national regimes have drawn inspiration and learned from each other.

Loveday Hodson, “Women’s Rights and the Periphery: CEDAW’s Optional Protocol” (forthcoming European Journal of International Law)

This paper places the UN Women’s Committee at its centre in order to consider the normative implications of having a space within the realm of international law that is headed by women decision-makers, whose remit is specifically gendered and whose task is to uphold the rights of women. It suggests that the Committee’s importance has largely been overlooked, which is a considerable oversight. The Committee is in fact uniquely positioned to make a contribution to the transformation of human rights norms, occupying, as it arguably does, positions simultaneously at the centre and at the periphery of international law. In particular, this paper examines the jurisprudence that has emerged under the individual complaints procedure of the Optional Protocol to CEDAW and questions how far the Committee has been able to develop ‘women’s rights’ in recent years into a body of law that departs from the normative and structural limitations of international human rights laws. The final version of the paper will appear in 2014 European Journal of International Law.

Jaclyn Ling-Chien Neo, “Calibrating Interpretive Incorporation: Constitutional Interpretation and Pregnancy Discrimination under CEDAW” (2013) 35(4) Human Rights Quarterly 910

The success of implementing human rights treaties is often dependent on a country’s national laws and local conditions. There is an implementation gap in dualist regimes where courts do not implement human rights treaty provisions because they have not been domesticated by a legislative (or other necessary) incorporating act. Interpretive incorporation is a judicial trend that seeks to mitigate this strict separatist view. This article examines the use of interpretive incorporation in Malaysia to incorporate CEDAW’s prohibition against pregnancy discrimination through constitutional interpretation. It calibrates the outcomes of interpretive incorporation based on the status judges effectively give to unincorporated human rights treaties. Finally, the article reflects on some of the continuing local constraints on interpretive incorporation.

Charles G. Ngwena, “A Commentary on LC v Peru: The CEDAW Committee’s First Decision on Abortion” (2013) 57(2) Journal of African Law 310

In LC v Peru, the Committee on the Elimination of Discrimination against Women held that Peru was in breach of its obligations under the Convention on the Elimination of All Forms of Discrimination against Women when it denied a 13 year old girl emergency surgery as well as an abortion. This commentary discusses the human rights significance of LC v Peru, especially in relation to the advancement of abortion jurisprudence in the African region. It is submitted that LC v Peru makes an important contribution towards the development of abortion laws that are transparent and accountable to women, as well as responsive to equal protection under the law. The duty of states to operationalize LC v Peru in their domestic law is an innovative juridical resource for reforming abortion laws. This is particularly so in those regions, including the African region, where the continued criminalization of abortion serves as a significant incentive for unsafe, illegal abortion. 

 

Guest posts

Meghan Campbell, Evaluating States’ Failure to Eliminate Discrimination against Women using Substantive Equality (10 November 2013)

 

Gema Fernández Rodríguez de Liévana and Paloma Soria, “Looking to CEDAW: An Opportunity to Protect Women’s and Children’s Rights in Spain and Worldwide (4 December 2013) (English and Spanish)

 

Olivia Rope, “Protecting the Rights of Women Offenders: A Job for the CEDAW Committee?” (19 August 2013) 

 

Amy Rogers and Munkhzul Khurelbaatar, “Mongolia and the Optional Protocol – Challenges and Potential to Move Beyond Empty Rhetoric” (4 July 2013) (English and Mongolian)   

 

Christina Ryan, “Australian Women with Disabilities using Optional Protocols: The Challenges, The Benefits” (9 September 2013) 

 

January 2014 

 

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