Cedaw, Background, Content and Interpretation
CEDAW, BACKGROUND, CONTENT AND INTERPRETATION
1. From gender neutral (blind) to women focused approaches
- The universal declaration of human rights, 1948
- International Covenant on Civil and Political, 1966
- International Covenant on Social, Economic and Cultural Rights, 1966
- European Human Rights Convention
UN Conference Equality, Peace and Development in Mexico in 1975:
- Women in the development countries and industrialized countries were carrying out 66 and 75 % of all the necessary work in the world.
- Women’s income on a world basis made up 10 % of men’s wages.
- UN estimate that women owned approximately 1% of all private property
Outcome of the Mexico conference:
- Realization of the need of a special international instrument prohibiting de jure and de facto discrimination against women with a special monitoring mechanism that made the states of the world
- The Convention on the Elimination of All Forms of Discrimination Against Women
2. Women’s Law and CEDAW
Definition of Women’s Law as a legal discipline:
“Describe, understand and improve the position of women in law and society”
Convergence CEDAW and Women’s Law as a Legal Discipline: Justice and Freedom
- Article 10, 11 and 12 obliges states parties to ensure women education, work and health on an equal basis with men
- Article 12 and 16 ensures autonomy, integrity and choice with a view to enter marriage freely and to decide the number and spacing of children. Article 6 protection against trafficking and prostitution
3. Background/achievements/developments
- Uniting existing conventions, treaties and declarations in one document
- From vertical to horizontal human rights
- From specialized to prohibitive to structural approaches
- specific rights for women - f.ex. ILO Convention preventing night work
- gender neutral non-discrimination probations, universal declaration etc..
- Instruments addressing the structural nature of discrimination against women, CEDAW, article 5 – culture and religion
4. Overview of the Convention
- Non discrimination convention, article 1
- Civil and political rights; article 1, article 5, article 7 political rights, article 16 equality in the family
- Social and economic human rights; article 11 work, article 12 health
- Solidarity rights; right to development article 14
4. Content of the non-discrimination norm, CEDAW article 1
- Discrimination against women
- impairing human rights, CEDAW
- Direct and indirect discrimination – effect and purpose CEDAW, EU
-Council Directive 2000/78/EC, article 2
- example Bilka case
-CESCR Gen.comment N. 16 art. 3 equal rights
- (discrimination in relation to rights protected in the covenant)
- CCPR, Human rights committee, Gen comment No. 28, article 3
- (discrimination in relation to rights protected in the covenant)
- Permissible and prohibited discrimination
- Legitimate goal – f.eks. promote equality
- Means chosen must not impinge on another human right more than necessary
- Cases: Bilka case, Kalanke/Marshall case
- Structural discrimination
- CEDAW article 5
- General recommendation 19 on violence against women
Substantive equality, the aim of CEDAW
- Proactive obligation, CEDAW 1 and article 2
- negative/positive respect, protect and fullfill
- Norwegian Gender Equality Act, article 1a, proactive obligation
- CEADW article 4,1 – temporary special measures in favour of women to prevent indirect discrimination, deal with structural social, cultural and historical discriminatoin and achieve equality
- The European Community Council Directive 2000/43/EC, article 7
The content and outreach of the obligation in article 4.1
- CEDAW General Recommendation 25
- in principle all spheres of life; work, politics, distribution of land...
- in favour of women, women underrepresented
- obligation/option, Gen rec 25, 25:
“Shall take appropriate measures”, The Committee considers that the states are obliged to take and adopt temporary measures
- types of measures
- quotas/ priority
- moderate/radical
– absolute/individual assessment
- Norwegian Gender Equality Act
- Article 3 a, 1 general clause and Article 1 Objectives of the Act
- Article 3.a,2 differential treatment in favour of men
Employment
CEDAW 4.1/ EU directive
- Kalanke case (C 450/93)
- Marshall case(Case C-409/95)
- The University of Oslo Case - Case E 1/02 - of the EFTA Court
CESCR Gen rec N. 16 art. 3 equal rights, 15. Temporary measures:
- Exeption, reasons specific to an individual male candidate may tilt the balance in his favour, which is to be assessed objectively, taking into account all criteria to the individual candidate. This is a requirement of the principle of proportionality.
Political representation
- qualification versus/representation/democracy/good governance
- The contested distinction between employment and representation
- The Norwegian 40 female representation on private company boards rule
Biological, difference
- Difference article 4.2 , special treatment for maternity not discrimination
- Norwegian Gender equality act
Socio/cultural difference
How far can the state go in outlawing “gendered practices, perseptions, belifs??
Women discriminated not only on basis of sex, but also on additional grounds such as race, class, ethnic and religious identitty, diability etc.(CEDAW gen. rec. 25)
- Crisis Centers for women
- Free legal advice for women by women
o The case of free legal advice for women at the University of Oslo
- Taxis with women drivers for disabled women
- Separate opening hours for women in swimming pools
The Danish Gender Equality Ombud case
- Religious dress for women
o Religious freedom/gender equality, CEDAW 5
o Layla Sahin versus Turkey
- EC 9 ban justified and proportional
o CEDAW’s comment to Turkey’s report
- proportionality
o CRC’s comment to France report, banning of headscarfe in public schools
- proportionality
- Curriculum in religious schools
- The Accellerated Christian Education case
Sources and interpretation
- Vienna Convention on the law of treaties, text, preamble, annexes and protocol – same mode of interpretation as other human rights instruments
.
- Preparatory works, hansards, See Rehof ..Guide to..
- Cases dealt with by the Human Rights Tribunals/Committees
- Cases dealt with national courts, constitutional, supreme
- The Practice of the CEDAW Committee,
- general recommendations 1-25
- comments to state reports
- General recommendations by the Human Rights Committee, Child Right Committee and the Committee on Social and Economic Human Rights
- Legal Literature, Cook, Byrnes, Nowak, Raday, Banda..
- Resolutions/declarations - f.ex. The Beijing Platform of Action
Modes of Interpretation
Positivist /dynamic
CEDAW Committee, f.ex. Gen rec. 25,3-4
"The Convention is a dynamic instrument"
- Nowak, "By means of an evolutive or dynamic interpretation treaty monitoring bodies adopt international law in the light of current challenges and develoments"
Critique,
- Rule of law
- Democracy
Autonomous/contextual
The Human Rights Committee Apr. 1982, UN.Doc. CCPR/C/DR/R.12/50 para.10.2.
"Its interpretation and application of the International Convenant on Civil and Political Rights has to be based on the principle that the terms and concepts of the Covenant are independent of any particular national system of law and of all dictionary definitions. Although the terms of the Covenant are derived from long traditions within many nations, the Committee must now regard them as having an autonomous meaning."
African Charter on Peoples’ … should be interpreted in light of the progressive development of women's human rights embedded in the Women's Convention, article 60.
The Protocol on the Rights of Women under the African Charter.
CEDAW Article 2 "pursue by all appropriate means and without delay a policy of eliminating discrimination against women."
CEDAW Committee, CEDAW C/1995/4: 20
"...The Convention allows for the interpretation and application in the most appropriate ways to the social and cultural structure of each state but with the premise that the States Parties will follow the principle of non-discrimination on the basis of sex."
Similar viewpoints are held by the Committee on Economic, Social and Cultural Rights, U.N.Doc.E/1991/23 at para 4.
"the phrase "by all appropriate means" must be given its full and natural meaning. While each state party must decide for itself which means are the most appropriate under the circumstances with respect to each of the rights, the "appropriateness" of the means chosen will not always be self-evident. It is therefor desirable that States Parties' reports should indicate not only the measures that have been taken but also the basis on which they are considered to be the most "appropriate" under the circumstances".
Hierarchy
Conflicts between human rights – f.ex gender equality, freedom and religion and the right to culture
Starting point human rights indivisible and interrelated, one human right should not stand in the way of another.
CEDAW sets out a hierarchy, article 1, 2, 5 and 16.
- Raday develops a theoretical basis for structuring the hierarchy to the issue in a constitutional framework of human rights
- CEDAW - hierarchy
- ICCPR art. 18,3 – right to religion does not allow to infringe on the rights of others
- Human Rights Committee – rejected cultural defense and religious freedom as justification of discrimination against women
- Lovelace case
- Gen. Rec 28
African Charter, Protocol on the Rights of Women to the African Charter
- Fareda Banda
Mainstreaming the human rights of women into other conventions and treaty bodies
Separate
Parallell
Unified
Follow up of the World Conference on Human Rights in Wienna by UN:
- representation , efforts should be made with regard to change the rules addressing the composition - geographic, cultural, legal etc.. - not gender.
- reporting - the inclusion of a gender perspective into the reporting guidelines of the different instruments are important
- interpretation - the inclusion of a gender perspective in the interpretation made by the different committees - in terms of general comments.
Parallell system:
- Strengthen CEDAW
- Mainstram into other Human Rights Treaty Bodies
The Human Rights Committee, Which oversees the International Covenant on Civil and Political Rights (ICCPR).
- Increase of female members - as of December 1996 - 5 out of 18 - herunder one former member of the CEDAW Committee.
- In 1995 the Committee amended its reporting guidelines to request that States Parties provide gender specific information in their reports.
- In 1998 the General Comment no. 28 on Equality of rights between women and men art. 3 CCPR:
“…..
The Committee on Economic, Social and Cultural Rights (ESCR Committee)
-general recommendation on health, No 14
- General Comment 15 non-discr
Special rapporteurs:
- the Special Rapporteur on the Right to Freedom and Opinion and Expression
- the Special Rapporteur on Vilonce against Women
- the Working group of arbitrary detention
- the working group on disappearances.
- the special raporteur on extra-judicial executions
EU- law
- Treaty Establishing European Community, Article 3
- Directive EC 2000 refers to CEDAW
African Charter
- Protocol to the African Charter on the rights of women