Please note: this article is adapted from an essay written in 2016. There are references to violence throughout.
There have been vast improvements to the lives of women around the world in the last few decades and at the same time, a number of setbacks. In this essay, I aim to discuss whether the lives of women have been improved by the Committee on the Elimination of all Forms of Discrimination against Women (Committee or CEDAW).
The Committee, which is formed of 23 experts on the human rights of women, are responsible for overseeing States’ implementations of the Convention of the Elimination of all Forms of Discrimination against Women (Convention or the Women’s’ Convention) in all the States that have ratified this Treaty. The Committee aim to eliminate all forms of discrimination against women and they define discrimination through the first article of the Convention as “…any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.”
The committee have sought to implement the treaty since its first session, which took place in 1982. In this essay, I will discuss to what extent the statement of “Women’s lives have not been improved by the work of the Committee on the Elimination of all Forms of Discrimination against Women,” is true by analysing case law which has used CEDAW, the reservations and repercussions when a State fails to implement the treaty properly and what else might contribute to the improvement of women’s lives.
There are many people who have sought justice with the help of the Committee. One of them was the case of Angela González Carreño v. Spain. González Carreño left her husband, F.R.C, in 1999 as he was violent and abusive over the course of several years. She reported the violence to the authorities. The wife was given custody of their daughter, Andrea and the husband was ordered to pay child support, which he did not. Supervised visits between F.R.C. and Andrea were allowed.
Despite the orders, the violence against González Carreño continued, some of which was witnessed by the child. After some time, Andrea became increasingly afraid of her father and no longer wanted to spend time with him outside the visitation regime. González Carreño made many complaints to the authorities, but despite the number of complaints against her husband was only charged on one count of harassment and subsequently, fined only an amount of 45 euros. González Carreño repeatedly sought protective orders from local authorities in the hope to keep F.R.C. away from herself and her daughter outside of supervised visits and child support payments. Despite the protective orders that had been issued following the complaints of González Carreño, F.R.C. continued to violate them without any legal consequences.
Since the original complaints made in 1999, there had been many other failings made on behalf of the courts, such as the failure to take domestic violence into account for the grounds of their separation. In 2002, three years after the initial separation, the Court No. 1 of Navalcarnero authorised unsupervised visits between F.R.C. and his daughter. This order came despite many incidents of violence during the supervised visits. González Carreño appealed the decision, but it was without success. In 2003, F.R.C. murdered his daughter Andrea and then committed suicide. Later in the year, the court came to the conclusion it could not be held at fault for the murder of Andrea. The responsibility of the murder was solely that of F.R.C.
A year after the deaths, González Carreño filed a claim for compensation from the Ministry of Justice on the grounds of miscarriage of justice. She believed that the authorities were repeatedly negligent and failed in their obligation to protect the life of Andrea. The Ministry of Justice concluded that the authorities acted in accordance with the law, as a result of this, González Carreño’s appeal was denied, as were subsequent appeals.
As González Carreño did not feel that the local courts were they offering appropriate remedies to the violations that had occurred, she sought help from the Committee in order to hold the State of Spain accountable for the murder of her daughter, as she claimed Spain violated articles 2(a)-2(f), 5(a) and 16 of CEDAW. She claimed that:
- the authorities failed to act with due diligence to prevent, investigate, prosecute and punish the known violence experienced by González Carreño and Andrea and the murder of Andrea
- the authorities failed to provide an effective judicial response to Andrea’s murder and appropriate redress for the damages González Carreño suffered through the State Party’s negligence
- the State Party had inadequate protections against domestic violence at the relevant time and that victims continued to experience discrimination
- stereotyping by the authorities meant that, inter alia, they: did not investigate Andrea’s situation as a direct and indirect victim of violence; prioritised F.R.C.’s wishes over González Carreño’s rights and best interests; and questioned Angela’s creditability
- the authorities discriminated against González Carreño in the decisions on her separation and divorce, including by not taking the violence into account and ensuring F.R.C. paid child support.
The Committee ruled that the State Party had violated articles 2(a)-2(f), 5(a) and 16(1)(d) of CEDAW, read with Article One and its General Recommendation No. 19, which defines gender-based violence. The Committee recommended that the State provide González Carreño with compensation and investigate whether failures in its structures and practices led to González Carreño and her daughter being denied appropriate protection. González Carreño finally received an adequate ruling which recognised that the State were at fault and the Committee effectively found where the State was at fault. It is impossible to know whether without the work of the Committee, González Carreño would have ever found adequate remedies or be embroiled in an unsuccessful goose chase of denied appeals.
There are many cases like the one of Angela González Carreño v. Spain, where the Committee have found States at fault of abusing the human rights of women. At the same time, there have been many failings and shortcomings on behalf of part of the Committee. As States have to report to the Committee on how well they are implementing CEDAW, there is room to hold them accountable in these sessions for the failures of implementation. In Committee sessions, ‘Concluding Observations of the Committee,’ are given, for example, the 48th session of the Committee commended the State party from Israel on some of the positive implementations of CEDAW in Israel, such as the adoption of anti-trafficking laws and the Public Protection of Sex Offenders Law (2006). The Committee then went on to discuss their principal areas of concern and recommendations. The Committee asked Israel to retract its reservation to CEDAW, saying:
The Committee remains concerned that the State party continues to retain its reservations to articles 7 (b) and 16 of the Convention. The Committee is of the view that 2 CEDAW/C/ISR/CO/5 the reservation to article 16 is impermissible as it is contrary to the object and purpose of the Convention
[…]
Recalling its previous recommendation (CEDAW/C/ISR/CO/3, para. 26), the Committee urges the State party to consider withdrawing its reservations to article 7 (b) and especially to article 16 of the Convention in order to eliminate discrimination against women in all matters relating to marriage and family relations in line with articles 2 and 16 of the Convention. Definition of equality and non-discrimination
The fact that the Committee can only ask State parties to withdraw their reservations, allows State parties a degree of impermissibility to certain issues with the Committee. The Convention is one of the most widely ratified Conventions of the United Nations, but most States do hold reservations and declarations. These range from India’s support, but non-commitment to register all marriages to Saudi Arabia’s vague reservation of no implementation of any part of CEDAW that does not interplay well with Islamic law. Although there may be a number of reasons to hold reservations to the Convention, having reservations poses the question of how seriously States take the implementation of the Convention and the human rights of women. In the case of Israel in 2011, the Committee go on to say, in their concluding observations to Israel:
Recalling its previous concluding observations (CEDAW/C/ISR/CO/3, para. 23), the Committee regrets the State party’s position that the Convention does not apply beyond its own territory and, for that reason, the fourth and fifth periodic reports did not provide any information on the status of implementation of the Convention in the Occupied Palestinian Territories.
[…] Committee reiterates that the State party’s view that the Convention is not applicable in the Occupied Territories is contrary to the views of the Committee and of other treaty bodies, including the Human Rights Committee, the Committee on Economic, Social and Cultural Rights and the Committee against Torture and also of the International Court of Justice in its Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, which have all noted that obligations under international human rights conventions as well as humanitarian law apply to all persons brought under the jurisdiction or effective control of a State party and have stressed the applicability of the State party’s obligations under international human rights conventions to the Occupied Territories.
Israel, as a State, shows a complete lack of willingness to improve the lives of Palestinian women, which is why it does not see the implementation of the Convention in the Palestinian Territories as applicable. Although the Committee can tell State Parties where they feel they are failing to meet the standards of the Committee, such as they do with Israel, because implementing CEDAW is optional, Israel can repeatedly ignore the status of women in the Occupied Palestinian Territories without any real repercussions. The committee may also remind, as they have with Israel, that State parties will be held answerable to other Treaty Bodies. Israel, however, can still resist any formal and substantive changes in the lives of Palestinian women. This type of resistance by States to comply fully with the Committee, hinders the progress of women.
The Committee has allowed CEDAW to be a work in progress, adding on General Recommendations as and when they are needed. This is because Article 21 of the Convention states that the Committee are empowered to ‘make suggestions and general recommendations based on the examination of reports and information received from State parties.’ By January 2004, 25 General Recommendations had been adopted by CEDAW, including General Recommendation 19 which defines violence against women and General Recommendation 25, which discusses temporary special measures. On the one hand, General Recommendations could be seen as a way in which the Committee failed to see what problems the future might have in store for CEDAW, however, I would argue that Article 21 allows flexibility and the ability to move with the times. This means the Convention can avoid becoming outdated or not being able to deal with a problem because it was not foreseen in 1979.
Even despite the limits to the accountability that the Committee can hold States to, lives have been improving for women around the world. At the same time, it would not be fair to say that the Committee are completely responsible for these improvements. The improvements have come as an accumulation of movements from grassroots organisations, changes in social attitude, the reduction of people living in extreme poverty and a focus on women in international law and gender mainstreaming. The notion that ‘women’s rights are human rights,’ in international law permeates through to society and creates empowerment for women and improvements in their lives.
Although there are many different documents and movements I could discuss, as I am limited by a word count I will discuss only one. The Maputo Protocol is often overlooked in the advancement of the enjoyment of human rights by women and overshadowed by the Women’s Convention. One criticism that comes up repeatedly when looking at human rights and the human rights of women, is that they are ‘defined by white men, and so reflected an uncritically accepted white male overview,’ and therefore the human rights of women were too often trying to translate human rights into a female, but still very ‘white,’ worldview.
However, the Maputo Protocol, otherwise known as the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, was created by the African Commission on Human and People’s Rights and offers a comprehensive and powerful interpretation and evaluation of the human rights of women in Africa. The Protocol gives special attention to problems that are more prominent in Africa, such as the rights of rural women, harmful practices such as female genital mutilation and women’s rights to inheritance. Unlike the Convention, the Maputo Protocol has articles on the rights to having a cultural positive context and violence against women. In addition to the limited success of CEDAW in Africa, the African Protocol have led to ‘most state parties have undertaken legal and institutional measures to actualize the provisions of the Protocol. Such measures include the enactment of national laws addressing particular issues captured in the instrument such as laws prosecuting perpetrators of sexual violence (Kenya and Liberia), prohibiting FGM (Uganda, Kenya and Zimbabwe) or establishing mechanisms mandated to promote women’s rights (Cote d’Ivoire and Senegal).’
All forms of discrimination against women have not been eliminated, so the overall goal of the Committee has not yet been met. This is not to say that the Committee has not had success in improving the lives of women. I would argue that the Committee has improved the lives of women in substantive and formal changes. Despite what some might say is resistance by States to implement the Convention through reservations and declarations, the fact that there is a Treaty in place to enforce the human rights of women permeates through to society and is empowerment in itself. The success may have not always been consistent when it comes to the implementation of the Convention, however it has given a structure to hold States accountable when human rights of specifically women have been abused. Saying this, some of the improvement in women’s lives have come from elsewhere, such as the Maputo Protocol. It is important not to mistake the success of many movements that aim to advance the enjoyment of the human rights of women with attributing the success only to the Committee’s work, but to understand that the Committee has improved women’s lives as have many other organisations.
Bibliography:
Cases:
González Carreño v Spain [2012] CEDAW, CEDAW/ C/ 58/ D/ 47/ 2012 (CEDAW)
United Nation Materials:
CEDAW State Reports
CEDAW General Recommendation No 19 on Violence against Women UN Doc A/47/38
CEDAW General Recommendation No 25 on Temporary Special Measures CEDAW/C/2004/WP.1/Rev.1.
Convention On The Elimination Of All Forms Of Discrimination Against Women, opened for signature on 1 March 1980, 1249 UNTS 13 (entered into force on 3 September 1981)
UN Committee on the Elimination of Discrimination Against Women (CEDAW), Concluding observations of the Committee on the Elimination of Discrimination against Women – Israel, 16 December 2011, CEDAW/C/ISR/CO/5, available at: http://www.refworld.org/docid/4eeb62b32.html [accessed 8 April 2016]
Protocols:
Protocol to the African Charter on Human and Peoples’ Rights of Women in Africa (adopted 11 July 2003, entered into force November 2005) (2005) 21 ILM 58 (African Charter)
Others:
Clinton H, ‘First Lady Hillary Rodham Clinton’s Remarks To The Fourth Women’s Conference In Beijing, China’ <https://www.youtube.com/watch?v=xXM4E23Efvk> accessed 3 April 2016
‘Gender And Poverty Reduction’ (UNDP, 2016) <http://www.undp.org/content/undp/en/home/ourwork/povertyreduction/focus_areas/focus_gender_and_poverty.html> accessed 3 April 2016
Kombo, B., Sow, R. and Mohamed, F. (2016). Journey to Equality: 10 Years of the Protocol on the Rights of Women
Reichert, E. (2007). Challenges in human rights. New York: Columbia University Press.
Wairimu Irene, M. (2015). Africa: Women’s Rights ‘Underrated, Ignored, Trampled Upon’. [online] allAfrica.com. Available at: http://allafrica.com/stories/201506130377.html [Accessed 25 Mar. 2016].
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