CEDAW and the Rights to Non-Discrimination and Equality

By Cusack, Simone; Pusey, Lisa | Melbourne Journal of International Law, June 2013 | Go to article overview

CEDAW and the Rights to Non-Discrimination and Equality


Cusack, Simone, Pusey, Lisa, Melbourne Journal of International Law


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.

CONTENTS

I   Introduction
II  Interpretation of the Rights to Non-Discrimination and Equality
    A The Right to Non-Discrimination
      1 All Forms of Discrimination against Women
      2 Definition of Discrimination
      3 Coverage
    B The Right to Equality
      1 Formal Equality
      2 Substantive Equality
      3 Transformative Equality
III   Application of the Rights to Non-Discrimination and Equality to
      Women's Individual Situations
    A The Communication Procedure
    B Individual Communications
      1 Reproductive Health
      2 Violence against Women
      3 Civil, Political and Economic Matters
      4 Summary
    C Robust Gender Analysis: A Missing Link?
IV    Where to Now?
    A Asking the 'Woman Question'
    B Asking the 'Man Question'
    C Asking the 'Other Question'
V   Conclusion

I INTRODUCTION

The Committee on the Elimination of Discrimination against Women ('Committee') is the leading international treaty body responsible for monitoring states' efforts to protect and promote women's human rights, specifically those rights guaranteed by the Convention on the Elimination of All Forms of Discrimination against Women ('CEDAW' or 'Convention'). (1) How the Committee interprets CEDAW, the coherency and persuasiveness of its interpretative reasoning and the consistency and rigour of its application of the Convention to women's individual situations have a direct bearing on the effectiveness of the Convention as a tool for advancing women's rights. They also affect the reputation and perceived legitimacy of the Committee and, concomitantly, its ability to influence how states parties and other treaty and decision-making bodies address women's human rights.

This article analyses how the Committee has interpreted the rights to non-discrimination and equality in CEDAW 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 ('Optional Protocol'). (2) The analysis is based on key general recommendations of the Committee that elucidate core elements of the rights to non-discrimination and equality (3) and jurisprudence decided under the Optional Protocol communication procedure. (4) The analysis shows that the Committee has interpreted the rights to non-discrimination and equality broadly. …

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