Academic journal article Outskirts

Through the Eyes of Women? the Jurisprudence of the CEDAW Committee

Academic journal article Outskirts

Through the Eyes of Women? the Jurisprudence of the CEDAW Committee

Article excerpt

The adoption of the Convention on the Elimination of All Forms Of Discrimination Against Women (CEDAW) by the United Nations (UN) General Assembly in 1979 was a significant achievement in enshrining women's human rights into international law. To date, CEDAW continues to be the only international human rights instrument to specifically address the human rights of women. These rights include, inter alia, the obligation to end discrimination against women in any legislative or judicial form, public institutions, social or cultural practices, public or political life, nationality, education, employment, health care, trafficking and prostitution, rural life, legal capacity, and in marriage and family relations. In 1999, the Convention was further strengthened by the adoption of the Optional Protocol to CEDAW (OP CEDAW). The adoption of the OP CEDAW was received with much enthusiasm as it enabled women, for the first time, to submit a communication to the CEDAW Committee about a violation of their CEDAW rights and to seek redress at an international level. Whilst some of this enthusiasm has since been dampened by the significant number of communications that have been declared inadmissible (e.g. Sullivan) and by criticisms about the progressiveness of the Committee's views (e.g. Murdoch), the CEDAW Committee has nonetheless issued a number of important decisions on areas such as violence against women, reproductive health and gender stereotyping. The views issued by the CEDAW Committee have contributed to developing the international law on women's human rights and to the understanding of what is required by States to fulfil their CEDAW obligations. In this paper, the jurisprudence of the CEDAW Committee's views will be examined. The term 'jurisprudence' in this paper will be used to 'refer to the interpretations of the law given by a court' (Ratnapala 3). Although the CEDAW Committee may only be a quasi-judicial body, its interpretations of CEDAW have nonetheless been regarded as authoritative. Furthermore, the views of UN treaty bodies are commonly referred to as 'jurisprudence' within the study of international law (e.g. United Nations; Council of Europe; Byrnes and Bath 518; Isa 320). In this paper, the question will be asked, have the views of the CEDAW Committee been cautious or progressive? Consistent or inconsistent? Commendable or regrettable? This paper will demonstrate that in cases involving severe human rights violations, such as violence, rape or death, the CEDAW Committee has been strong in its views and has incorporated a good analysis of how gender has contributed to these violations. However, for matters in which the discrimination has not been as direct or the consequences have not been as severe, the Committee has not undertaken the more nuanced analysis that is needed to draw out the human rights violations that have occurred. Hence, whilst the CEDAW Committee has commendably advanced the international law on women's human rights in some areas, it has also been reluctant and slow to do so in others.

Considerations and Interpretations

The communications procedure established by the OP CEDAW provides an opportunity for women to lodge a complaint to the CEDAW Committee if they believe that their rights under CEDAW have been violated. Whilst the communication procedure is accessible to all women, complaints may only be lodged against a State that is a party to the OP CEDAW. Currently, 104 States are a party to the OP CEDAW. If the communication fulfils the admissibility criteria, such as the exhaustion of domestic remedies and that the violation occurred or continued after the OP CEDAW came into force, then the merits of the communication will be considered. Through a series of written communications with the author1 of the complaint and the accused State, the CEDAW Committee will determine whether or not the State has failed to fulfil its obligations under CEDAW. If a violation is found, the CEDAW Committee will provide recommendations to the State of actions that it may take to remedy the situation. …

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