Women’s Rights are Human Rights: CEDAW’s Limits and Opportunities
Article by Paulina Montez,
The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) is one of the most broadly endorsed human rights treaties, often thought of as an international bill of rights for women. While the majority of states have ratified the Convention, our reality looks significantly different from the aspirational words that states have endorsed. Sarah Evergard’s murder recently triggered widespread anger over the dangers that women face. Women of intersecting identities face heightened dangers. The recent killings of eight people, six of which were Asian women, at spas across Atlanta further reflected the importance of recognizing and protecting women who come from multiple identities. Even over forty years after the Convention’s creation, it remains vital to assess how it has changed the landscape for women, to critique how it has enabled states to continue discriminatory practices, and to think creatively about ways to use the Convention to further advance gender equality.
The United Nations General Assembly adopted CEDAW in 1979 and it has since garnered widespread support: over 180 countries have ratified the convention, two have joined as signatories, and only six countries have not indicated interest in becoming parties. CEDAW’s provisions protect the political, legal, civil, and economic rights of women. CEDAW requires that parties establish tribunals and other institutions to ensure protection of women against discrimination. Additionally, parties must ensure elimination of all acts of discrimination against women by persons, organizations, or enterprises. Finally, CEDAW's provisions require parties to report the measures they have taken to comply with the obligations at least every four years.
CEDAW has improved gender equality in some state laws and amendments. Legislation changes have addressed domestic violence, sexual harassment and rape, and trafficking. For example, Turkey changed its laws to increase the marriageable age to 17, and Uganda created and funded programs to reduce domestic violence after ratifying CEDAW. The CEDAW Committee (“the Committee) also works to investigate violations of CEDAW and makes legally binding recommendations, as it did in 2018 when it investigated abortion access in Northern Ireland. However, CEDAW has been widely criticized for its significant amount of ratifications with reservations and its lack of intersectionality and specificity. Nonetheless, some local governments that belong to a non-party state have utilized CEDAW to promote gender equality. These efforts showcase how local governments can use human rights treaties as examples to emulate and to improve upon CEDAW’s weaknesses. Local governments can and should attempt to fill the gaps left by states who either fail to ratify human rights treaties or who do not reflect the treaties’ principles in practice.
CEDAW Committee’s Promotion of Gender Equality
CEDAW created the Committee in part to monitor parties’ implementation measures. The Committee reviews parties’ reports, issues recommendations, considers complaints of violations, and launches inquiries into Convention violations. The Committee's recommendations are instrumental in highlighting gender discrimination and exerting political pressure on states to amend laws. In 2010, the Committee launched one such inquiry into accusations that the United Kingdom, a party to CEDAW, had committed grave and systematic violations of rights under CEDAW by restricting access to abortion in Northern Ireland. At the time of the investigation, abortion was criminalized in Northern Ireland, and the availability of abortions was highly restricted. In response to the inquiry, the UK argued that abortions were allowed in certain circumstances, prosecutions for having an abortion were rare, and citizens of Northern Ireland had the option to travel to other countries to access abortion services. Nonetheless, the Committee found that the limitations on access to legal abortions in Northern Ireland promoted institutional and geographical limitations, reduced clarity on when legal abortions could be performed, and resulted in a downward trend of clinicians’ willingness to perform abortions. It also found that the criminalization of abortions adversely impacted women in poverty, women who were impregnated through rape or incest, and women with fatal fetal abnormalities. Finally, the Committee found that the inadequacy of family planning support resulted in young people being denied the right to sexual health education and information as well as access to reproductive health services and contraceptives.
In light of its findings, the Committee concluded that the UK committed grave and systematic violations of rights enumerated under CEDAW. Therefore, the Committee recommended that the UK repeal legislation that criminalized abortion, provide greater access to abortions, and promote sexual and reproductive education. In July 2019, MPs voted 332-99 in support of amendments to the Northern Ireland (Executive Formation) Bill to impose duties on the government to legislate for abortion reform and to implement the Committee’s recommendations. Grainne Teggart, Amnesty International’s Northern Ireland Campaign Manager, said the move was a “signficant defining moment” for womens’ rights in Northern Ireland, and that the government was now required to codify CEDAW’s recommendations, including decriminalizing abortion. In October 2019, Northern Ireland decriminalized abortion. Although restrictions on abortion still remain and the move to decriminalize abortion was not a direct result of the Committee’s inquiry, the inquiry provided support for women’s rights advocates to pressure the government into abiding by their international law obligations to support gender equality.
CEDAW’s Limitations – Reservations, Intersectionality, and Specificity
Although CEDAW is one of the leading human rights conventions for gender equality, it has also been heavily criticized for its extensive reservations and lack of intersectionality and specificity. Reservations allow states to ratify CEDAW but only legally bind themselves to provisions with which they want to comply. 48 parties have ratified CEDAW with reservations, making it one of the human rights conventions with the most reservations. Moreover, Article 2, which outlines the measures that states must take to eliminate discrimination, is one of the provisions with the most reservations. Parties have cited religious, cultural, and legal reasons for being unable to abide by the provisions. As a result of a party’s ability to evade accountability, a party can continue supporting discriminatory practices such as female genital mutilation (FGM), virginity testing, and domestic violence. The Committee has indicated that reservations in response to Article 2 are contrary to the object and purpose of CEDAW, exacerbating its limits. When states ratify CEDAW with reservations to core provisions, they actively indicate their lack of interest in substantially changing their legal systems to reflect ones that promote the advancement of gender equality. While some states have withdrawn their reservations as a result of pressure from the CEDAW Committee, most have maintained them.
CEDAW has also been criticized for its inconsistent approach to intersectionality. It does not contain any provisions that specifically address women’s interactional identities. This gap promotes a framework that characterizes women as facing only gender discrimination as opposed to also experiencing other forms of discrimination like racism, classism, ethnocentrism, and heterosexism. The Committee’s reports frequently reference intersectionality. However, the intersectional analysis is not always consistent and is sometimes wholly nonexistent. The convention has also been criticized for failing to address the specific needs of women in situations that do not reflect those of the standard western lifestyle. For example, Mali ratified CEDAW with no reservations in 1985. However, as the convention does not address FGM, Mali has failed to criminalize or even take a clear stance against FGM. A 2018 study found that 88.6 percent of women aged 15-49 in Mali have undergone FGM in some form. It was not until a 2020 Committee report that the Comittee condemned Mali’s failure to criminalize FGM, accusing it of grave and systematic violations of CEDAW.
Further, CEDAW’s lack of specificity compounds the negative effects of its extensive reservations and inconsistent approach to intersectionality to permit the continuance of discriminatory practices. While states are required to take appropriate measures to eliminate discrimination, they lack any guidance dictating what appropriate measures look like. Although some parties have enacted legislation that seemingly promote gender equality, women continue to face discrimination in contradiction with CEDAW principles. For example, the Philippines ratified CEDAW without reservation in 1981. In 2009, the Philippine government enacted the Magna Carta of Women (MCW) that reflects the convention’s provisions and similarly mandates the state to change legislation to end discrimination. One of its goals was to increase the number of women in government positions to achieve a 50-50 balance. The Philippines has made some progress; for instance, the number of women judges in lower courts grew from 28% in 2009 to 49% in 2018. However, Philippine civil society organizations submitted a report to the Committee in 2016 to assist in the review of the state’s compliance with CEDAW. The report found that, despite the MCW’s enactment and its mention of sexual orientation and intimate relationships of LBT people, the government needs to do more to prevent, document, mointor, and folow up on cases of discrimination based on sexual orientation and gender. A lack of enforcement, limited capacity to enforce, and weak accountability hinders parties from actually eliminating gender discrimination.
Using CEDAW as Guidance for Local Change
Despite the Convention’s limitations as an instrument of international law, it has served as an effective guide for local governments in advancing local change. The US is one of the few states that has failed to ratify the Convention. Although former US President Jimmy Carter signed the Convention in 1980, the US Senate failed to ratify it. Ratification in the US requires consideration and recommendation by the Senate Foreign Relations Committee and support from two-thirds of the US Senate, so ratification in the near future is unlikely. As a result of the legislative barrier, San Francisco adopted a local ordinance in 1998 which reflects this Convention’s principles. The ordinance continues to require the use of preventive measures to ensure the city’s resources, policies, and actions do not discriminate against women and girls. The ordinance created the CEDAW Task Force, which conducts studies on gender discrimination and creates guidelines to assist parties in implementing the ordinance’s principles. One study of employees’ work-life balance needs resulted in citywide changes including the creation of new telecommuting policies and generous and expansive paid parental leave. Moreover, the San Francisco Gender Equality Principles Initiative helps promote the ordinance’s principles in the private sector by providing companies with practical standards, tools, and resources. Finally, San Francisco’s initiative inspired the Cities for CEDAW effort to fill the gaps left by countries that fail to ratify the Convention or that inadequately address gender equality.
A Path Forward
The COVID-19 pandemic has highlighted the realities of many women across the world. In April 2020, the United Nations called for nations to act and combat the surge in domestic violence resulting from victims being stuck with their abusers due to lockdown measures. A recent UNICEF report also highlighted that millions of underage girls are at risk of being forced into marriage as a result of the pandemic’s financial strain on families.
Parties to CEDAW agree to promote gender equality while simultaneously and consistently failing to do so. Women’s rights activists fight an uphill battle; activists in Mexico have been sexually and physically assaulted while protesting gender-based violence and have been accused by the Mexican president of manipulating the issue of femicides. As is the issue with most international law instruments, CEDAW suffers from the fact that a state has the power to choose its level of accountability by ratifying with reservations or not ratifying at all. Additionally, CEDAW’s substantive limitations further reduce states’ obligations. Without significant reforms to the convention, human rights advocates must resort to other creative approaches, such as the local approach in San Francisco and other cities, that use international law instruments as a framework and have the flexibility to build upon the instrument’s weaknesses.
Paulina Montez is a J.D. Candidate at UC Berkeley School of Law. She is interested in the intersection of international human rights law and criminal law.