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Oxford Law Citator

Article 3

Marsha A. Freeman, Christine Chinkin, Beate Rudolf

From: The UN Convention on the Elimination of All Forms of Discrimination Against Women: A Commentary

Edited By: Marsha A. Freeman, Christine Chinkin, Beate Rudolf

Content type:: Book content

Product:: Oxford Scholarly Authorities on International Law [OSAIL]

Series:: Oxford Commentaries on International Law

Published in print:: 01 January 2012

ISBN:: 9780199565061

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(p. 101) Article 3

States Parties shall take in all fields, in particular in the political, social, economic and cultural fields, all appropriate measures, including legislation, to ensure the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men.

A. Introduction

Article 3 is located in Part I of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) as one of the provisions that describe States parties’ general obligations under the Convention. Read in conjunction with Articles 1, 2, 4, 5, and 24, it forms part of the overarching interpretative framework for the application of the specific obligations set out in Articles 6–16.¹ Article 24 in Part VI is somewhat repetitive of Article 3. The obligations and concepts introduced in these initial articles apply to all other articles in the Convention. The Committee has on occasion viewed (p. 102) Article 3 as ‘catching’ matters that fall outside the express terms of other articles. However, as it often refers to Article 3 alongside other articles, notably Article 2, it is not always clear how the articles might be separated, or the extent to which it is desirable to do so.

Article 3 is a rare provision in the Convention schemata in that it does not explicitly identify elimination of discrimination against women as its goal. Rather, it emphasizes States parties’ obligations to take positive steps to ensure the full development and advancement of women on a basis of equality with men. It thus affirms and complements the clauses calling for positive equality between women and men in the ICCPR, Article 3 and ICESCR, Article 3, as well as the non-discrimination clauses, ICCPR Articles 2(1) and 26 and ICESCR Article 2(2).

Article 3 is also the only substantive article in the Convention that explicitly guarantees women their human rights and fundamental freedoms. By echoing the language of the UN Charter Articles 1(3) and 55 and the preamble to the UDHR it connects the Convention with those instruments. But Article 3 goes further than simply providing a guarantee of women’s human rights. By linking the full development and advancement of women with the exercise and enjoyment of their human rights, it is purposeful and instrumental, providing the legal basis for structural—transformative—change in the lives of women. Paragraph 7 of the Convention Preamble also refers to the ‘full development of the potentialities of women’, noting that discrimination against women makes this more difficult to achieve. However, unlike the Preamble, where the full development of women is sought ‘in the service of their countries and of humanity’, Article 3 is directed towards the full development and advancement of women, as a goal in its own right. It thus provides a notable statement of the importance of equality of women and men as a freestanding legal objective.

Article 3 is to some extent analogous to ICERD Article 2(2), which states:

States Parties shall, when the circumstances so warrant, take, in the social, economic, cultural and other fields, special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms.

There are some textual differences between Article 3 and ICERD Article 2(2), most of which were a subject of discussion during the drafting process. Article 3 assumes a more immediate obligation by omitting the qualifying clause ‘[w]hen the circumstances so warrant’; the Convention expressly includes the ‘political’ field while ICERD does not, although it may be implied under ‘other fields’; ICERD requires that States parties take ‘special and concrete measures’ while in the Convention the obligation is to take ‘all appropriate measures’; there is no explicit mention of legislation in ICERD, Article 2(2) although there is in Article 2(1)(d); ICERD requires ‘adequate’ development and the Convention ‘full’ development, coupled with the ‘advancement of women’. The final sentence in ICERD, Article 2(2) has no counterpart in the Convention:

These measures shall in no case entail as a consequence the maintenance of unequal or separate rights for different racial groups after the objectives for which they were taken have been achieved.

Article 3 has no directly equivalent provision in the ICCPR or ICESCR, although it imports the Covenants into the Convention through the inclusion of human rights and fundamental freedoms and specification of ‘political, social, economic and cultural fields’. Page Id: 102References(p. 103) Like Article 3 (and more fully Article 2), the ICCPR and ICESCR also specify legislation as a means of implementation of States parties’ obligations.²

Article 3 has attracted little focused attention from either States parties or the Committee. There was no equivalent provision to Article 3 in DEDAW. No State party has reserved Article 3 explicitly, and the Committee has not adopted a general recommendation on it.

B. Travaux Préparatoires

Article 3 as finally adopted is little different from the first draft put forward by the Philippines and was subject to remarkably little discussion throughout the drafting process. The Philippines proposed:³

States Parties shall when the circumstances so warrant undertake, in the social, economic, cultural and other fields, concrete measures to ensure the adequate development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms.

The joint Philippines/USSR draft omitted ‘when the circumstances so warrant’ but was otherwise unchanged. The wording of the Philippines’ draft closely followed that of ICERD Article 2(2) and received wide support, except from Finland which considered it to be unnecessary in light of the substantive Articles 10–14.

C. Issues of Interpretation

Article 3 replicates and reinforces other provisions of the Convention. The open-endedness of some of the language allows for teleological interpretation of the Convention as a dynamic,⁴ living instrument. Its focus on ‘advancement’ makes it especially forward-looking.

I. ‘States Parties Shall Take in All Fields’

Under international law, treaty obligations rest with the State party, regardless of the constitutional order within the State, such as its federal structure.⁵ The State party therefore ensures compliance by sub-State units. The mandatory language (‘shall take’) denotes positive State action ‘in all fields’. This holistic approach ‘anticipates the emergence of new forms of discrimination that had not been identified at the time of its drafting’⁶ and emphasizes that the Convention is not limited to specified fields of application, as is the case with the two UN Covenants, but is to apply to all areas of relevance to women and their lives, both the public and the private.

An insight into how States parties may view the Convention’s scope is provided by the UK. In its One Year On Report (2009) to the Committee, the UK explained the difference Page Id: 103References(p. 104) between its proposed equality legislation and the Convention. The former protects against discrimination in ‘specific fields only, namely work, the provision of goods, facilities and services and the exercise of public functions, premises, education in schools and in further and higher education institutions, and in associations including private clubs’. In contrast, the UK stated (but without referring to Article 3), ‘the CEDAW covers all fields including in particular social and cultural fields’.⁷

The phraseology ‘all fields’ is sufficiently indeterminate to provide Convention authority for an expansive interpretation that encompasses areas of activity not spelled out in subsequent provisions of the Convention. The Committee’s concluding observations to States parties’ reports, general statements, and recommendations suggest that it implicitly endorses this approach. ‘All fields’ encompasses, inter alia, the provision of goods, facilities, and services, economic and sustainable development,⁸ property,⁹ technology,¹⁰ armed conflict,¹¹ detention,¹² climate change¹³ and pollution, aftermath of natural disaster,¹⁴ such as the tsunami¹⁵ and cyclones,¹⁶ and post-conflict reconstruction¹⁷ and management.¹⁸

‘All fields’ also ensures the Convention’s applicability to all women. For example, General Recommendation 18 refers specifically and only to Article 3 as the basis for its recommendations to States parties with respect to women with disabilities. Although this is the only general recommendation in which the Committee finds its competence explicitly in Article 3, the Committee has drawn upon Article 3 in other general recommendations to reinforce its position. Thus, Article 3 (along with Article 2) is expressly declared in General Recommendation 19 on violence against women as the basis for establishing ‘a comprehensive obligation to eliminate discrimination in all its forms in addition to the specific obligations under Articles 5–16’.¹⁹ In General Recommendation 21 paragraph 43, Article 3 is mentioned along with Articles 2 and 24 as requiring gradual progress towards equality in the family and thus that States parties should withdraw reservations; in General Recommendation 25 paragraph 6, Article 3 is read jointly with Articles 1, 2, Page Id: 104References(p. 105) 4, 5, and 24 to set out the ‘general interpretative framework’ of States parties’ obligations under the Convention; and in General Recommendation 28 paragraph 8, the Committee notes that Articles 2 and 3 ‘anticipate the emergence of new forms of discrimination that had not been identified at the time of [the Convention’s] drafting’.

II. ‘In Particular in Political, Economic, Social, and Cultural Fields’

While providing for the application of the Convention in non-specified fields, Article 3 also spells out those to which it applies ‘in particular’: ‘political,²⁰ social, economic and cultural fields’. This language largely echoes that of Article 1, although after discussion, the field of civil activity (included in Articles 1 and 15(2)) was omitted from Article 3.²¹ While it is unclear why Articles 1 and 3 differ in this respect, taken together they incorporate all the rights contained in the UDHR, ICCPR, and ICESCR that are not expressly mentioned in the Convention.²² This approach has been adopted by the Committee,²³ which has asserted that ‘[t]he spirit of the Convention covers other rights, which are not explicitly mentioned in the Convention but which have an impact on the achievement of equality of women with men and which represent a form of discrimination against women’.²⁴ For example, General Recommendation 19 paragraph 16 specifies its applicability to refugee women and paragraph 14 to single mothers, neither of whom are expressly addressed in the Convention.

Further, by describing the relevant fields of activity, rather than specifying political, social, economic, and cultural rights—the approach taken in the ICCPR and ICESCR and the Beijing Platform for Action²⁵—Article 3 allows an interpretation that goes beyond the identified Covenant rights. This is important because denial of women’s rights in the political, economic, social, and cultural fields ‘contributes to their economic dependence, denial of personal autonomy’²⁶ and more generally to their lack of power.

Enumeration of these multiple fields of activity highlights the importance of women’s human rights in political organization, representation, participation, and action,²⁷ in the allocation of and access to economic and social resources, and in cultural life. General Recommendation 23 on political and public life, paragraph 1 recalls the Preamble of the Convention in considering the role of women in the development of the State that is undermined by unequal political participation and representation. The Committee has Page Id: 105References(p. 106) also expressed concern about the ‘absence of an enabling environment … [that] prevents women from fully participating in all aspects of public life in accordance with articles 3, 7 and 8 of the Convention’.²⁸ Public life is widely understood to include governmental bodies,²⁹ law enforcement, the judiciary, and the diplomatic corps.³⁰ Economic and social rights³¹ overlap and are mutually reinforcing in that both are directed at ensuring women’s economic independence and free choices within society. Denial of employment, inheritance, and property rights (including marital property) undermines women’s economic activity.³² The economic field³³ encompasses both the wage sector and the informal economy, where women are especially active but may remain invisible and lack social and legal protections.³⁴ Social rights have been described as aiming at ‘securing the ability to live a life of dignity for everyone, without dependence on others (other than the State), while reasonably fulfilling all basic needs, including welfare rights, rights in the sphere of employment, and rights to education and health’.³⁵

The inclusion of the cultural field is a reminder that culture can be empowering (as well as the basis of harmful practices) for women. It echoes ICESCR Article 15(1), which has no direct comparator in the Convention, although Article 13(c) requires States parties to take all appropriate measures to eliminate discrimination against women ‘in all aspects of cultural life’. Culture as a ‘broad, inclusive concept encompassing all manifestations of human existence … shapes and mirrors the values of well-being, as well as the economic, social and political life of individuals, groups of individuals and communities’.³⁶ As such, it is empowering for women when they receive sustenance and support from their community. However, women are also disproportionately affected by social and cultural marginalization which adversely impacts upon their access to and enjoyment of other rights.³⁷ Article 3 must be read in conjunction with Article 5(1) requiring modification of those aspects of culture that sustain prejudice and stereotypical roles for women and men and thus undermine women’s enjoyment of their rights.

General Recommendation 19 emphasizes the importance of addressing discrimination in all fields—political, economic, social, and cultural—in the context of violence against women. It explains that the ‘comprehensive obligation to eliminate discrimination in all its forms’ established by Article 3 (with Article 2) includes the need for positive action by States parties in the economic field to combat violence against women. It notes that cultural—sexist—attitudes that regard women as subordinate to men ‘contribute to the propagation of pornography and the depiction and other commercial exploitation of women as sexual objects, rather than as individuals’. General Recommendation 25, referring to Article 3 (along with Articles 1, 2, 4, and 5) reinforces this point by requiring Page Id: 106References(p. 107) States parties to take measures across all fields ‘to address prevailing gender relations and the persistence of gender-based stereotypes’.³⁸

III. ‘All Appropriate Measures’

States parties have the positive obligation to take ‘all appropriate measures’ to achieve the objectives laid down in Article 3. These are in addition to the specific measures, including constitutional and legal reform, spelled out in Article 2. The original draft had specified ‘concrete’ measures’,³⁹ which was changed to ‘all appropriate measures’ reflecting the language of ICESCR Article 2(1) (‘all appropriate means’). It is less forceful than that of ICERD, Article 2(2), which stipulates ‘special and concrete measures’.⁴⁰ The parallel requirement under ICESCR, according to CESCR General Comment 3, is that Article 2(2) be given ‘its full and natural meaning’.⁴¹

‘Appropriate measures’ affords States parties flexibility in determining how best to achieve the objectives of the Convention within their own particular social, economic, and political contexts, recognizing that this may not always be through legislation.⁴² The Committee has not explicitly stated its understanding of ‘appropriate measures’, but in its general recommendations it has suggested a range of social (for example, removal of obstacles⁴³), economic (for example, gender budgeting⁴⁴ and resource allocation⁴⁵), educational,⁴⁶ and administrative⁴⁷ mechanisms for monitoring and implementation of the Convention, which demonstrate a similarly broad approach to that taken by the CESCR. States parties should thus adopt ‘appropriate measures’ in all fields in order for women to enjoy all human rights, not just those specified in the substantive Articles 6–16 of the Convention.

The language of Article 3 (‘shall take’) and the Committee’s application of ‘all appropriate measures’ make it clear that Convention obligations are subject to immediate implementation rather than progressive realization. Nor does Article 3 reiterate the wording of ICESCR, Article 2(1) relating to progressive realization. It might be argued that General Recommendation 21 undermines this conclusion by stating in paragraph 43 that ‘[c]onsistent with articles 2, 3 and 24 … the Committee requires that all States parties gradually progress to a stage where, … each country will withdraw its reservation’. However, this paragraph is not directed at the totality of States parties’ obligations under the Convention but only at the removal of reservations, which is not applicable to Article 3 itself.

Temporary special measures, where needed, are included among appropriate measures, as set out in Article 4 and General Recommendation 25. The latter replicates the Page Id: 107References(p. 108) language of Article 3 in asserting that ‘States Parties to the Convention are under a legal obligation … to ensure the development and advancement of women in order to improve their position to one of de jure as well as de facto equality with men’.⁴⁸ Article 3 lays the ground for the introduction of temporary special measures and is referenced in General Recommendation 25 (along with Articles 1, 2, 5, and 24) which establishes that States parties may have an obligation to take such measures with respect to any of the substantive Articles 6–16.⁴⁹

IV. ‘Including Legislation’

Article 3 reinforces Article 2 by affirming that legislation is included among ‘appropriate measures’. The importance of enacting and implementing effective legislative reform to achieve the objectives of the Convention is more fully spelled out in the Committee’s general recommendations.⁵⁰ Without referring explicitly to Article 3, the Committee may remind States parties of their obligation ‘to raise the awareness of legislators about the need to give priority attention to legislative reforms in order to achieve de jure equality for women and compliance with the State party’s international treaty obligations’.⁵¹

Legislation may be required in multiple fields of law, such as those addressing family, civil, penal, labour, commercial, and administrative matters. The Outcome Document adopted at the Beijing + 5 General Assembly Special Session recognized that in many States a gender perspective has not been integrated into the laws or codes, administrative rules or regulations within these diverse fields.⁵² Article 3 provides a legal basis for requiring States parties to do so. This encompasses full and systematic incorporation of the Convention throughout domestic law,⁵³ and such legislation should prevail over other domestic law.⁵⁴

The Committee has referred to many other practical and legal instrumentalities, which are discussed more fully in the section on the nature of States parties’ obligations (section E below).

V. ‘To Ensure the Full Development and Advancement of Women’

This language spells out the fundamental objective of eliminating discrimination against women and thus of the Convention:⁵⁵ ensuring the full development and advancement of women. The stronger word ‘full’ was preferred to the originally proposed weaker word ‘adequate’.⁵⁶ Neither ‘development’ nor ‘advancement’ is defined in the Convention and both are multifaceted. They denote forward movement and progress, especially when read together. Thus, practices and policies that put back women’s advancement are not Page Id: 108References(p. 109) in conformity with Article 3, and the Committee has expressed concern about such situations, sometimes,⁵⁷ but not always, mentioning Article 3.⁵⁸

Women have had a somewhat uneasy relationship with policies and programmes for economic development and growth. State development has not always been for, or resulted in, the advancement of women, and without exploration of the gender dimension the adverse consequences for women of development projects too often remain invisible.⁵⁹ The Committee has implicitly invoked Article 3 in asserting ‘the urgent need to ensure that globalisation and transition to market economic policies improve the quality of life of women’;⁶⁰ in recommending that development projects be assessed from a gender perspective;⁶¹ and in emphasizing that ‘megaprojects’ and global economic trends must not be allowed to disadvantage women.

The Committee, in common with other bodies, has turned its attention to the impact of gender inequality on development. It has noted that ‘if sustainable development is to realise economic, social and environmental goals, women’s needs and concerns must be given equal priority with those of men’.⁶² The Beijing Declaration emphasizes that women’s empowerment and equal participation are essential elements for development.⁶³ Similarly, the World Bank has reported that ‘ignoring gender disparities comes at great cost to people’s well-being and to countries’ abilities to grow sustainably, to govern effectively, and thus to reduce poverty’.⁶⁴ Poverty too is feminized as was spelled out in the first Critical Area of Concern in the Beijing Platform for Action.⁶⁵ It is, thus, crucial to promote gender equality, including in national development plans, as ‘an important part of a development strategy that seeks to enable all people—women and men alike—to escape poverty and improve their standard of living’.⁶⁶ This also requires taking into account women’s access to health care, social security, education, clean water and sanitation services, fertile land, income-generation opportunities, and participation in decision-making processes.⁶⁷ (p. 110)

Article 3 places women’s own development and advancement at the forefront, rather than that of States or of peoples as a collectivity. Further, by explicitly guaranteeing the exercise and enjoyment of human rights and fundamental freedoms as the purpose of the full development and advancement of women, Article 3 locates women as rights-holders, not just as objects (or subjects) or prospective beneficiaries of development policy.⁶⁸

The rights-based approach requires recognizing women’s legal entitlement to development and advancement as an end in itself and not primarily as instrumentalities for State economic development. It moves away from the utilitarian language of development economists⁶⁹ to that of entitlement to equal choices and opportunities to be enshrined within the formal legal system. The Convention ‘recognizes the inextricability of subordination and the economic and social structures that generate and perpetuate it’.⁷⁰ Understood in this way, Article 3 foreshadows, with gender specificity, the UN Declaration on the Right to Development which asserts that ‘[t]he right to development is an inalienable human right’.⁷¹

The Committee has taken up these issues, but generally without referring to Article 3. It has considered the relationship between gender and economic development, for example, seeking information and expressing concern about the impact on women of economic crisis, structural adjustment programmes,⁷² and macroeconomic policies,⁷³ including that economic growth and development may not benefit women as much as men.⁷⁴ It has requested States parties to ensure that all poverty alleviation programmes fully benefit women⁷⁵ and to enhance ‘monitoring of the impact of economic development and changes on women and to take proactive and corrective measures, including increasing social spending, so that women can fully and equally benefit from growth and poverty reduction’.⁷⁶ The Committee has welcomed the introduction of micro-credit or micro-enterprise schemes that facilitate women’s independence through enhancement of their economic self-sufficiency.⁷⁷

Economic globalization may have created new employment opportunities for women in the formal economy, enhancing their opportunities for economic independence. However, it also has its downsides, such as ‘economic restructuring as well as, in a certain number of countries, persistent, unmanageable levels of external debt and structural adjustment (p. 111) programmes’.⁷⁸ The gendered division of labour, trapping women in low-paid, unregulated work, for example, in export processing zones, poses a particular risk to women who are especially vulnerable.⁷⁹ The Committee has explained that while it is appreciative of the need for ‘economic growth, it is concerned that the human rights of vulnerable groups such as tribal populations may be adversely affected by large-scale economic projects’.⁸⁰ More broadly, it has expressed concern about women’s poverty and social exclusion,⁸¹ which are exacerbated by global economic downturns.⁸² It has recommended that ‘the promotion of gender equality and sensitisation to gender equality issues is an explicit component of, and is fully implemented in, its national development plans and policies, in particular, those aimed at poverty alleviation, sustainable development and natural disaster management’.⁸³

The Committee has linked sustainable development with ‘gender-sensitive people-centred human development, based on equality and equity, participation of government and civil society, transparency and accountability in governance’.⁸⁴ The combined civil and political rights and socio-economic rights in the Convention, the Beijing Declaration and Platform for Action, and the Beijing + 5 Outcome Document constitute ‘important legal, policy and programmatic instruments that also provide a clear agenda that must be integrated into sustainable human development’.⁸⁵

In addition to issues relating to economic development the Committee has explicitly addressed women’s development in the context of health and family relations, for example, recognizing family responsibilities as inhibiting personal development,⁸⁶ and the fallacy that women and men have different rates of intellectual development.⁸⁷ It has seen the ‘health, development and well-being’ of family members as linked objectives and noted that these are all enhanced where there are ‘freely available appropriate measures for the voluntary regulation of fertility’.⁸⁸ The Convention does not explicitly adopt the life cycle approach to the guarantee of women’s human rights but the language of Article 3 implicitly does so, confirmed by the Committee (without reference to Article 3) in General Recommendation 24:⁸⁹ securing women’s advancement and full development as a lifespan⁹⁰ project from infancy and childhood through to old age. Perhaps surprisingly, General Recommendation 19 does not describe how gender-based violence inhibits women’s development.⁹¹ (p. 112)

States parties must identify where sex- and gender-based inequality exist and ensure that their measures, policies, and practices, including those for economic development, advance the position of women and do not merely accommodate women’s difference. The Committee’s almost routine request for gender-disaggregated statistics reflects a concern that without the data thus provided women’s advancement in any of the relevant fields cannot be measured or monitored. Measures need not be applied equally to women and men, rather their impact must be subject to effective gender analysis ‘through inter-institutional involvement at all levels’⁹² and their application adapted to redress any de facto inequality. Some women are subject to further, particular disadvantage and additional, special, or corrective measures are needed to secure their entitlement to advancement and enjoyment of human rights.⁹³

Article 3 provides the authority for the radical rethinking of development strategies that a rights-based—and gender-sensitive—approach to development requires. Accordingly, government actions, whether of a legislative, administrative, policy, or programmatic nature, must be considered in light of the obligations inherent in human rights⁹⁴: individual entitlement and State accountability for failure to perform.

VI. ‘For the Purpose of Guaranteeing them the Exercise and Enjoyment of Human Rights and Fundamental Freedoms’

States parties’ obligations under Article 3 are expressly to guarantee women’s exercise and enjoyment of human rights and fundamental freedoms, as stipulated in international treaties and customary international law. Article 3 (along with Article 1) implicitly lays the groundwork for the assertion in the Vienna Declaration and Programme for Action that ‘[t]he human rights of women and of the girl-child are an inalienable, integral and indivisible part of universal human rights’.⁹⁵ In similar language General Recommendation 19 also refers to women’s enjoyment of ‘human rights and fundamental freedoms under general international law or under human rights conventions’ and notes that gender-based violence that impairs the enjoyment of such rights constitutes discrimination under Convention Article 1.

By not listing the relevant human rights and fundamental freedoms (or other international instruments), Article 3 allows for progressive development as the understanding of rights is extended, for example, through ‘declarations, programmes and platforms for action adopted by relevant United Nations conferences, summits and special sessions’.⁹⁶ Ensuring women’s social, political, and economic advancement facilitates their enjoyment of human rights, while the full and equal enjoyment of human rights underpins women’s advancement and development and is essential for its achievement.⁹⁷Page Id: 112References(p. 113)

The UN Millennium Declaration,⁹⁸ from which the Millennium Development Goals (MDGs) were articulated, uses the language of the ‘empowerment of women’ rather than that of advancement and development.⁹⁹ The MDGs are goals, not rights.¹⁰⁰ They are ‘elaborated in very limiting terms that refer to eliminating the gender gap in education and increasing women’s employment in the formal sector and political participation in national parliaments’ and thus fail to capture the ‘wide sweep of CEDAW’.¹⁰¹ Nor are they subject to the treaty monitoring system.

The UN OHCHR has engaged with the MDGs as the central global development programme, stating that a ‘human rights-based approach means ensuring that the MDG lens is sufficiently focused on the rights of women; for example, those entrenched in the Convention on the Elimination of All Forms of Discrimination against Women’.¹⁰² The Committee has routinely raised their implementation with States, giving some effect to the mutuality between the MDGs and rights.¹⁰³ The Committee also uses the language of women’s empowerment, a language that ‘aims to enhance women’s self-awareness, self-esteem, self-confidence and self-reliance’.¹⁰⁴

While the shift of language from victimization to empowerment¹⁰⁵ is evidently beneficial for women, some caution must also be exercised. It may be used to turn the focus away from the State’s obligation to ensure measures for women’s advancement and development by identifying and removing obstacles and ensuring an appropriate legal environment, to women having to determine their own actions to achieve these goals. Self-reliance must not be substituted for States parties’ obligations. If women within a particular society are deemed to be ‘empowered’, failure to achieve advancement and development may be attributed to their failings, either individually or as a group, while the location of these objectives within the language of rights in the Convention emphasizes States parties’ obligations. The Committee’s repeated emphasis on the ‘full and effective implementation of the Convention as indispensable for achieving the MDGs’¹⁰⁶ underlines the importance of a holistic approach, including women’s autonomy and empowerment within a rights-based framework. It regularly calls upon States parties to integrate ‘a gender perspective and the explicit reflection of the provisions of the Convention in all efforts’ for achieving the MDGs and has requested States parties to report on their efforts in this regard. The rights-based approach to women’s advancement summarized in Article 3 entails participation, agency, transparency, and accountability.(p. 114)

VII. ‘On a Basis of Equality with Men’

These last words of Article 3 had been deleted by the CSW and were reintroduced by the style committee.¹⁰⁷ They locate Article 3 in the overall context of the Convention: to eliminate discrimination against women and to achieve equality between women and men. This phrase is repeated from Article 1, and when read with the earlier wording of Article 3 and all other substantive articles, most especially Article 2 (which does not mention equality between women and men), it is apparent that women’s equality does not always require a male comparator. Rather, the phrase makes clear that practices that are detrimental to women ‘as such’ must be eliminated to accord women the same opportunities as men to achieve their ‘full development and advancement’ as women.¹⁰⁸ Article 3 encapsulates transformative equality, as discussed below.

D. Equality in Context

I. Formal, Substantive, and Transformative Equality

Article 3 must be understood in conjunction with Articles 1, 2, 4, 5, and 24,¹⁰⁹ which together set out States parties’ core obligations under the Convention. They require formal equality (for example, through the adoption of legislation to ensure a non-discriminatory legal framework) and substantive equality (for example, through temporary special measures). Article 3 catches ‘those discriminatory practices that do not come within the scope of the Article 1 definition’.¹¹⁰ The powerful language in General Recommendation 19 that ‘Articles 2 and 3 establish a comprehensive obligation to eliminate discrimination in all its forms’¹¹¹ encompasses direct and indirect discrimination, harassment, cultural prejudice, and stereotyping. Article 3 thus complements and reinforces Articles 1, 2, and 5.

The goal of ensuring women’s full development and advancement requires positive and corrective action not only to achieve de facto equality, but also to ensure the elimination of structural inequalities that impede women’s access to enjoyment of rights. This requires removal of pre-existing inequalities. Article 3 provides the framework for the specific measures for structural transformation that are set out in Articles 4 and 5 and reinforces the means by which this must be done (‘all appropriate measures including legislation’ as also spelled out in Article 2). The UK in its One Year On Report (2009) refers to Article 3 in noting that the Convention standards are higher than those typically included in non-discrimination legislation, such as its own, the aim of which is to ‘prohibit discrimination and promote equality of opportunity’. The Convention’s provisions ‘are not to do with the conferral of rights on people’¹¹² but with transforming institutional structures (such as those of the workplace), as well as social and economic assumptions and behaviours. The Committee has explained that the Convention requires States to progress towards ‘a real transformation of opportunities, institutions, and systems so that they are no longer grounded in historically determined male paradigms of power and life patterns’.¹¹³ Page Id: 114References(p. 115) Article 3 is at the core of this obligation and clarifies that positive actions are required across all fields—political, social, economic, and cultural interpreted broadly as discussed above—to ensure progress in all aspects of women’s lives. It thus requires reassessment of legislation, policies, and programmes, including those for economic development and poverty reduction, to evaluate their impact upon women’s equality and advancement.

E. States Parties’ Obligations

I. Implementation: Respect, Protect, Promote and Fulfil

General Recommendation 25, paragraph 4 draws upon the language of Article 3 in asserting that ‘States parties to the Convention are under a legal obligation to respect, protect, promote and fulfil this right to non-discrimination for women and to ensure the development and advancement of women in order to improve their position to one of de jure as well as de facto equality with men’.¹¹⁴ The Committee invites States parties to report on the ‘institution(s) responsible for designing, implementing, monitoring, evaluating and enforcing such temporary special measures’.¹¹⁵ Since it understands Article 3 as constituting one of the bases for requiring States parties to report on their adoption of temporary special measures, they also should report on all measures intended for the advancement and development of women within national jurisdictions.

The Committee has frequently questioned States parties on their chosen methods for ensuring the advancement of women and it invariably returns to the matter in its concluding observations. As already observed, the overarching and imprecise character of Article 3 overlaps with Articles 1, 2, 4, and 5, and especially Article 24. The Committee has questioned States parties under Article 3 about their national women’s machinery and it is not always apparent whether its appraisal of such machinery is under Article 3 or Article 24. The Committee has also asked States parties’ representatives about other issues under Article 3 that might just as easily have been brought under another article,¹¹⁶ or have induced responses that could do so.¹¹⁷

The Committee has also raised general questions without reference to any specific article but which can be understood as coming within the terms of Article 3. Concerns about poverty reduction, economic empowerment of women, and promotion of women’s autonomy through sponsorship of income-generating activities, access to micro-credit, and loan schemes are often addressed without reference to Article 3, although of relevance to that article as well as others, such as Article 14.¹¹⁸ Nor has the Committee explicitly identified what is required by each of the layers of obligation, or clarified what States parties must do to comply with Article 3. It is, therefore, useful to examine the issues about which members of the Committee have questioned States parties, the steps for which the Committee has commended States, and gaps and omissions in implementation about (p. 116) which it has expressed concern, to determine how they illuminate the normative content of Article 3.

1. Obligation to Respect

The obligation to respect requires States parties not to take measures that undermine the full advancement and development of women and their enjoyment of human rights and fundamental freedoms. Article 3 also requires positive State action through the imposition of a direct government obligation to advance women in and through State agencies, for example, through effective integration of gender into budgetary policy. It also requires the State party to remove obstacles and to introduce measures directed at encouraging full compliance with the principles of the Convention, particularly where religious or private law or custom conflict with those principles.¹¹⁹ States parties’ actions to this end will vary, and ‘with the help of the Committee, [States parties must] decide what action is required to fulfil the treaty obligation’.¹²⁰

The Committee has more generally given attention to national legal and political institutions¹²¹ for the advancement of women,¹²² especially welcoming the allocation of human and material resources for this purpose. Article 3 requires States parties to make available to women institutions appropriate to their needs where those needs differ from those of men.¹²³ This interpretation is supported by Article 24 and General Recommendation 25, which in paragraph 24 commends a range of institutions, including ‘women’s ministries, women’s departments within ministries or presidential offices, ombudspersons, tribunals or other entities of a public or private nature with the requisite mandate to design specific programmes, monitor their implementation, and evaluate their impact and outcomes.’ States parties have reported on such measures—and others—aimed at institutional capacity building and awareness-raising for the achievement of the Convention’s objectives. Practices vary according to individual States parties’ constitutional, political, social, and economic order and the Committee is receptive to diverse approaches. In general, it welcomes ‘various measures in the areas of law, policy and institutions aimed at the advancement of women to a position of equality with men’¹²⁴ and expresses concern where there are no such measures.¹²⁵

Some steps on which the Committee has commended States include the adoption of equal opportunity laws; the establishment of institutions within local, regional, and federal governments for advising on matters of concern to women, or ‘coordinating, supporting, monitoring and advocating for women’s equality’;¹²⁶ the setting up of appropriate offices such as an equality ombudsperson,¹²⁷ gender focal points,¹²⁸ Women Liaison (p. 117) Officers (especially within rural areas),¹²⁹ regional desk offices;¹³⁰ the development and adoption of a national gender policy,¹³¹ strategy,¹³² or plan of action,¹³³ in particular, in accordance with the Beijing Declaration and Platform for Action.¹³⁴ Instead of forming a government department (or unit within a department) or statutory body a State party may designate an NGO as the predominant institution for the advancement of women. While appreciating that the body in question may have significant expertise and advocacy skills the Committee has expressed some caution about this approach, apprehending that non-governmental status may constrain its ‘authority and influence’ within the national hierarchy and undermine the government’s accountability for Convention implementation.¹³⁵

The Committee has not been satisfied with reports that simply itemize or describe the machinery for the advancement of women without providing details of their mandate,¹³⁶ operation, allocation of responsibility for performance, or means of evaluation.¹³⁷ Members have sought quantitative and qualitative assessment of national policies for the coordination of policies dealing with women and questioned States parties on weaknesses.¹³⁸ They have also asked about responsibility for financing at the national, regional, and provincial levels, including with respect to women’s centres.¹³⁹ Where equality laws have been introduced the Committee has queried how often women have availed themselves of their protections and with what results.¹⁴⁰

A particular area of concern relates to inadequate human, legal, and material resources¹⁴¹ to support institutions relied upon by States parties for securing women’s advancement and gender equality. The Committee has expressed its concern where national machinery may have insufficient decision-making power or financial and human resources¹⁴² and has sought clarification about the appropriateness of the level of funding.¹⁴³ It has recommended that sufficient funds be allocated in the State party budget to ensure that the relevant mechanism has the ‘power and authority to carry out its work’.¹⁴⁴ It has also asked about gender responsive budgeting¹⁴⁵ and auditing and has commended their institution.¹⁴⁶ (p. 118)

The Committee has also made recommendations relating to the status, visibility, and workload of those responsible for the advancement of women within national governments. It seeks to ensure that such tasks are assigned the appropriate priority and weight.¹⁴⁷

The Committee has particularly commended the use of gender mainstreaming¹⁴⁸ of policies at all levels as a tool for securing women’s equality, encouraged its introduction, and recommended training in gender mainstreaming and sensitivity. It has commended gender mainstreaming in development strategies,¹⁴⁹ including development aid¹⁵⁰ and cooperation.¹⁵¹ It does not, however, unreservedly accept gender mainstreaming as satisfactory and has expressed concern about its effective implementation and impact.¹⁵² One concern is that the relevant body responsible for implementing gender mainstreaming may lack the requisite visibility, decision-making power, or human and financial resources to be able to ‘effectively promote the advancement of women and gender equality across all branches and sectors of Government and at the national and local levels’.¹⁵³

A related concern is that mainstreaming women’s issues into a non-specialist government department or unit may dilute their significance and diminish attention to ‘the issue of discrimination against women, including its quantitative predominance and its qualitative cross-cutting nature’.¹⁵⁴ An overall integrated approach to gender mainstreaming, including into business, politics, and administration, is essential and the Committee has appreciated processes that seek to achieve this.¹⁵⁵ Gender impact studies at the highest political levels¹⁵⁶ are required to determine any differential impact of existing policies, practices, and laws on women and men, as well as before the adoption of all potential new measures.¹⁵⁷ Lack of coordination among government bodies tasked with the oversight of gender issues and a failure to allocate responsibility for performance may compromise gender mainstreaming activities.¹⁵⁸ The Committee has sought specific information on the impact of gender mainstreaming¹⁵⁹ and recommended that States parties implement measures for assessment.¹⁶⁰

The Committee has also focused on the importance of women’s participation in developing policies and practices for achieving gender equality. General Recommendation 25 paragraph 34 states in the context of temporary special measures that women in general, (p. 119) and affected groups of women in particular, should be able to participate in the design, implementation, and evaluation of national machinery and policies. This principle must have general application.

2. Obligation to Protect

The obligation to protect includes the State party’s duty to exercise due diligence in ensuring that women’s advancement and development is not impeded by non-State actors, including the economic policies of private enterprises.¹⁶¹ It has recommended the formulation and implementation of codes of ethics and action programmes for multinational corporations, especially those operating in export processing zones.¹⁶² The Committee drew upon Article 3 (and Articles 1, 2, 5, 6, and 15) in explaining Mexico’s accountability for failure to exercise due diligence in its inquiry into multiple deaths of women in Ciudad Juárez¹⁶³ and in two individual communications brought under the Optional Protocol to the Convention.¹⁶⁴ In Şahide Goekce v Austria¹⁶⁵, the authors complained of violations of Articles 1, 2, 3, and 5 with respect to the killing of Şahide Goekce by her husband because the State party had not actively taken all appropriate measures to protect her right to personal security and life. The Committee concluded that Austria had violated its obligations under Articles 2 and 3 of the Convention, read in conjunction with Article 1 and General Recommendation 19.¹⁶⁶ The reasoning and conclusions in the companion case of Fatma Yildirim v Austria¹⁶⁷ are similar.¹⁶⁸

In neither case did the Committee explicate on what particular obligation under Article 3 had been violated, or on what language of the article it was basing its conclusion. However, the facts in each instance (as well those determined by the inquiry into deaths and disappearances of women in Ciudad Juárez, Mexico) demonstrate the failure by State authorities to secure the victims’ protection from third parties and their advancement, development, or full enjoyment of their human rights, as required by Article 3. The rights to life and physical integrity are not spelled out in the Convention but are incorporated into it through Article 3 and General Recommendation 19. More explicitly, the obligation to exercise due diligence with respect to the advancement of women requires States parties to ensure equal access to justice,¹⁶⁹ including accessible legal aid and advice, and procedures for dealing with complaints of gender-based discrimination.¹⁷⁰Page Id: 119References(p. 120)

3. Obligation to Promote and Fulfil

The obligation to promote and fulfil imposes an ongoing and dynamic obligation to adopt and apply the measures needed to secure women’s advancement. Many of the measures commended by the Committee and described under the obligation to respect are also long-term measures directed towards fulfilling States’ parties’ obligations under Article 3. However, ‘long-term’ does not denote delay or deferral of positive action, nor is compliance with Article 3 to be withheld until ‘circumstances so warrant’.¹⁷¹ States are obliged to determine a timetable for the achievement of equality between women and men¹⁷² and, if necessary, to speed up the proposed strategy for women’s advancement.¹⁷³

Education and training for all women in economic empowerment, including those in remote areas,¹⁷⁴ are important measures for their advancement as is recognized by Article 10. The experts have questioned States parties about women’s access to education under Article 3.¹⁷⁵

Promotion of the Convention and of the Committee’s concluding observations to States parties must be ensured through their wide dissemination in an accessible form to women throughout the country (especially to rural areas or to women who face added disadvantage). This is essential to facilitate women’s advocacy and lobbying at the national level and thus is another key element in fulfilment of the State party’s obligations.

The Committee has repeatedly emphasized the importance of setting benchmarks and measurable indicators, and collecting appropriate and accurate gender-disaggregated statistics¹⁷⁶ developed over time. Without such a database it is impossible to analyze trends, and thus to determine level of progress in the practical realization of women’s de facto equality and advancement.¹⁷⁷ Lack of consistent statistical data ‘may also constitute an impediment to the State party itself in designing and implementing targeted policies and programmes’.¹⁷⁸ Statistics should be disaggregated not only by sex, but by other categories of disadvantage and exclusion, such as caste, minority status, ethnicity,¹⁷⁹ urban and rural locations.¹⁸⁰

The role of women’s NGOs in achieving the objectives of Article 3 is not expressly referred to in the Convention. Nevertheless, the Committee has noted their beneficial work¹⁸¹ and recommended that States parties collaborate and consult with civil society ‘representing various groups of women’,¹⁸² including inviting their contribution to legislative processes¹⁸³ and to preparation of States parties’ reports.¹⁸⁴ It has asked about Page Id: 120References(p. 121) registration processes for NGOs¹⁸⁵ and expressed concern about the lack of an enabling environment,¹⁸⁶ or any threats to the effective operation of women’s NGOs.¹⁸⁷

The Committee recognizes that fulfilling the objectives of Article 3 (and thus implementation of the Convention) is not easy and requires technical expertise and financial resources. It recommends to States that they avail themselves of the assistance available within the international community, including international donors and UN agencies such as the UNDP,¹⁸⁸ in accordance with the Beijing Platform for Action and the Outcome Document of the 23rd special session of the General Assembly.¹⁸⁹

F. Conclusions

The language of Article 3 is imprecise but has considerable potential for progressive interpretation that supports women’s advancement and full development. While it has not been explicitly used by the Committee on many occasions as the basis for imposing free-standing obligations (with the exception of General Recommendation 18) it has been relied upon (in conjunction with other articles of the Convention) as the basis for asserting States parties’ obligations with respect to violence against women, removing reservations, and establishing effective national processes for the achievement of the Convention’s objectives. Its open-ended wording confers a residual capacity allowing for the inclusion of matters which do not come within the express wording of other articles. The Committee has not been consistent in placing certain issues as obligations under particular articles. Sometimes it has used the heading ‘Article 3’ but it also uses thematic headings such as ‘institutional framework’ or ‘national machinery’, thereby raising issues of Article 3 as well as of other articles (notably Articles 2 and 24). The choice of headings does not seem to correlate with whether the State has used the Convention’s structure in its report.

The main issues the Committee mentions under the heading of Article 3 are the following:

• Collection of gender disaggregated data.
• ‘National machinery’ for advancement of women: many questions relate to the resources, mandate, ‘authority’, and impact of the institutions set up (or missing) for achieving gender equality.
• National plans and policies for implementing the Convention and monitoring the impact of the policies, including in accordance with the requirements of the Beijing Platform for Action, the Beijing + 5 Outcome Document, and the MDGs.
• Investigating impediments to women’s advancement.
• Gender mainstreaming of policies, including development policies.
• Monitoring gender impact of development strategies.
• The role of civil society, including women’s NGOs and identity-based minority groups, in the formation of legislative and development strategy.Page Id: 121References(p. 122)
• The place and role of women’s NGOs more generally, including whether they were involved in the reporting process.
• Equal access to justice and redress.
• Measures taken to publicize the Convention.
• Gender impact of structural adjustment and macroeconomic policies; women and poverty.
• Financial resources devoted to advancement of women both within designated institutions and outside of the particular designated ministry.

Since the adoption of the Convention other hard and soft international law instruments have pushed boundaries and expanded women’s human rights across many fields. These have emanated from multiple bodies, for example, the UNSC (resolutions 1325 (2000) 1820 (2008); 1888 (2009) and 1889 (2009; 1960 (2010)); the UNGA (the outcome document of the twenty-third special session of the UNGA, the MDGs); UN agencies; the outcome documents of global conferences (for example, the World Conference on Human Rights, the Conference on Population and Development, the Fourth World Conference on Women and their follow-up processes). Many of these documents reinforce the Convention and refer to States parties’ obligations under it. The open-ended language of Article 3 coupled with its essential purpose—‘to ensure the full development and advancement of women’—allows a progressive and dynamic interpretation and a holistic approach to women’s human rights.

Footnotes:

* I would like to thank Lena Skoglund for her valuable contribution as a research assistant; I would also like to thank Professor Hilary Charlesworth for her helpful comments on the chapter on Article 3 and the chapter on Violence against Women and, as always, for her encouragement and support.

1 eg GR 25 para 6; GR 28 para 7.

2 ICCPR art 2(2); ICESCR art 2(1).

3 (6 November 1973); UN Doc E/CN.6/573, L Rehof, Guide to the Travaux Préparatoires of the United Nations Convention on the Elimination of All Forms of Discrimination against Women (1993) 62–5.

4 eg GR 25 para 3, repeated GR 28 para 2: ‘The Convention is a dynamic instrument’.

5 eg CO Nigeria, CEDAW/C/NGA/CO/6 (2008) para 9.

6 GR 28 para 8.

7 Government Equalities Office, Response By the United Kingdom (UK) and Northern Ireland (NI) to Select Recommendations of the United Nations Committee on the Elimination of All Forms of Discrimination against Women following the examination of the UK and NI’s 5th and 6th Periodic Reports on 10 July 2008 (2009) (hereinafter UK, One Year On Report).

8 CEDAW, ‘Working Paper on the World Summit on Sustainable Development’ UN Doc CEDAW/C/2002/I/WP.2, 26th Session (2002).

9 K Rittich, ‘The Properties of Gender Equality’ in P Alston and M Robinson (eds), Human Rights and Development Towards Mutual Reinforcement (2005) 87.

10 Art 14(2)(g). The Committee has also raised this with States parties, eg CO Bhutan, A/59/38, 30th Session (2004) paras 113–14.

11 eg CO Croatia, A/50/38, 14th Session (1995) paras 585–6; CO Bosnia-Herzegovina, A/49/38 (Supp) 13th Session (1994) para 736; Decision 43/III, Statement by the Committee on the Elimination of Discrimination against Women on the Situation in Gaza, A/64/38 (Supp) Annex II (2009).

12 eg CO Russian Federation, A/57/38, 26th session (2002) para 392.

13 Decision 44/II, Statement by the Committee on the Elimination of Discrimination against Women on Gender and Climate Change, UN Doc A/65/38, 44th Session (2009).

14 GR 28 para 11.

15 eg CO Indonesia, CEDAW/C/IDN/CO/5 (2007) para 38.

16 eg CO Myanmar, CEDAW/C/MMR/CO/3 (2008) para 22; Statement of the Committee on the Elimination of Discrimination against Women on the Situation in Haiti, UN Doc A/65/38 (Supp) 45th session, (2010).

17 Statement by the Committee on the Elimination of Discrimination against Women on the Situation of Women in Iraq, Decision 30/III, UN Doc A/59/38 (Supp) (2004) Annex II.

18 CEDAW, ‘Gender and Sustainable Development’ (2002) para 423.

19 GR 19 para 10; see discussion in ch on violence against women below.

20 The Philippines’ draft of art 3 did not include the ‘political’ field (n 3 above).

21 Rehof (n 3 above).

22 Andrew Byrnes notes the rights to freedom of expression, privacy, and to be free from arbitrary detention; A Byrnes, ‘The Convention on the Elimination of All Forms of Discrimination against Women’ in W Benedek, E Kisaakye, and G Oberleitner (eds), Human Rights of Women International Instruments and African Experiences (2002) 119, 124.

23 GR 28 para 3 states that ‘the Convention is part of a comprehensive international human rights legal framework’ and lists a wide range of international treaties that are explicitly or implicitly ‘grounded in the concept of non-discrimination on the basis of sex and gender’.

24 GR 28 para 7.

25 Beijing Declaration and Platform for Action, adopted by the Fourth World Conference on Women (15 September 1995) para 213.

26 Montréal Principles on Women’s Economic, Social and Cultural Rights, 26 Human Rights Quarterly (2004) 760, 762.

27 Art 3 (with arts 2 and 7) ‘require that women be guaranteed equal access to organisations’. N Hevener Kaufman and SA Lindquist, ‘Critiquing Gender-Neutral Treaty Language: The Convention on the Elimination of All Forms of Discrimination against Women’ in J Peters and A Wolper (eds), Women’s Rights, Human Rights (1995) 114, 120.

28 CO Belarus, A/55/38, 22nd Session (2000) para 355.

29 eg CO Bhutan, A/59/38, 30th Session (2004) para 108.

30 eg CO Kuwait, A/59/38, 30th Session (2004) para 75.

31 L Farha, ‘Women Claiming Economic, Social and Cultural Rights—The CEDAW Potential’ in M Langford (ed), Social Rights Jurisprudence Emerging Trends in International and Comparative Law (2008) 553.

32 Rittich (n 9 above) 87; CEDAW GR 21 paras 30–5.

33 Art 13 refers to ‘areas of economic and social life’; see discussion in ch on art 13.

34 eg CO The Philippines, CEDAW/C/PHI/CO/6 (2006) para 25; CO Vietnam, CEDAW/C/VNM/CO/6 (2007) paras 22–3. See also R King and C Sweetman, Gender Perspectives on the Economic Crisis (2010) 6.

35 D Barak-Erez, ‘Social Rights as Women’s Rights’ in D Barak-Erez and AM Gross (eds), Exploring Social Rights Between Theory and Practice (2007) 397, 398.

36 CESCR, ‘General Comment 21’ (2009) UN Doc E/C.12/GC/21.

37 Montréal Principles on Women’s Economic, Social and Cultural Rights (n 26 above) 760.

38 GR 25 para 7.

39 Belgium proposed the change to ‘all appropriate measures’; Rehof (n 3 above) 64.

40 The Committee has requested examples of ‘concrete measures’; eg question to Niger, UN Doc CEDAW/ C/NER/Q/2 (2003) art 3 para 9.

41 CESCR, ‘General Comment 3’ (1990) UN Doc E/1991/23 para 4.

42 GR 28 para 23. The UK, for example, has asserted that ‘it is not appropriate, nor indeed possible, for legislation to address such obligations’. UK, One Year on Report (n 7 above) para 6.

43 eg GR 23 para 45(c); GR 24 para 31(b).

44 H Hofbauer, ‘Gender-Sensitive Budget Analysis: A Tool to Promote Women’s Rights’ (2002) 14 Canadian J of Women and the L 98–117.

45 eg GR 24 para 30.

46 eg GR 19 para 24(f): ‘States should introduce education and public information programmes to help eliminate prejudices that hinder women’s equality (recommendation No 3, 1987)’.

47 eg GR 19 para 24(c); GR 23 para 45(c); GR 24 para 31(d).

48 GR 25 para 4.

49 Ibid para 24.

50 eg GR 19 para 24(r)(ii); GR 21 para 49; CEDAW GR 23 para 47(a).

51 eg CO Myanmar, CEDAW/C/MMR/CO/3 (2008) para 11.

52 Outcome Document adopted by the 23rd UNGA Special Session, ‘Women 2000: Gender Equality, Development and Peace for the 21st Century’ (2000) para 27.

53 eg CO Indonesia, CEDAW/C/IDN/CO/5 (2007) para 8.

54 eg CO Myanmar, CEDAW/C/MMR/CO/3 (2008) para 9.

55 D Gierycz, ‘Human Rights of Women at the Fiftieth Anniversary of the United Nations’ in Benedek, Kisaakye and Oberleitner (n 22 above) 30, 34.

56 The Philippines’ draft (n 3 above).

57 eg under the heading ‘art 3’, the Committee expressed disappointment at the abolition of the Cabinet Committee for Emancipation Policy. General Observations, the Netherlands, UN Doc A/49/38 (Supp) 13th Session (1994) para 267.

58 eg CO Russian Federation, UN Doc A/57/38, 26th Session (2002) para 381 (steadily decreasing representation of women in the political arena), para 383 (‘deteriorating situation of women in employment’); Statement by the Committee on the Elimination of Discrimination against Women on the Situation of Women in Iraq, Decision 30/III, UN Doc A/59/38, 30th Session (2004), Annex II (repeal of civil statutes governing issues related to marriage, divorce, child custody and inheritance); CO Italy, A/60/38, 32nd Session (2005) para 318.

59 On the gendered differential of development policies see E Boserup, Women’s Role in Economic Development (1970); F Banda, Women, Law and Human Rights: an African Perspective (2005) 269–95.

60 CEDAW, ‘Working Paper on the World Summit on Sustainable Development’ (n 8 above) para 2; see also the discussion in ch on art 14.

61 eg CO Samoa, A/60/38, 32nd Session (2005) para 63.

62 CEDAW, ‘Working paper on the World Summit on Sustainable Development’ (n 8 above) para 4; it has repeated this in concluding observations, eg CO Botswana, CEDAW/C/BOT/CO/3 (2010) para 40.

63 Beijing Platform for Action (n 25 above) para 56.

64 World Bank Policy Research Report, ‘Engendering Development: Through Gender Equality in Rights, Resources and Voice’ (2001).

65 The ‘feminization of poverty’ refers to both the gendered ways in which women become poor (eg through divorce or discriminatory property laws) and their experience of poverty; Beijing Platform for Action (n 25 above) para 48; CEDAW, ‘Working paper on the World Summit on Sustainable Development’ (n 8 above) para 6(a); CO Russian Federation, A/57/38, 26th Session (2002) para 338.

66 World Bank Policy Research Report (n 64 above).

67 CO The Philippines, CEDAW/C/PHI/CO/6 (2006) para 30.

68 UNGA Res 41/128 (1986) states that the ‘human person should be the active participant and beneficiary of the right to development’.

69 H Steiner, ‘Social Rights and Economic Development: Converging Discourses’ (1998) 4 Buffalo Human Rights L Rev 25.

70 C Romany, ‘State Responsibility goes Private: the Feminist Critique of the Public/Private Distinction in International Human Rights Law’ in RJ Cook (ed), Human Rights of Women: National and International Perspectives (1994) 85, 108 (citing art 3).

71 UNGA Res 41/128 (1986). This resolution was preceded by the Commission on Human Rights resolution 4 (XXXIII), 21 February 1977. See also World Conference on Human Rights, Vienna Declaration and Programme of Action, (12 July 1993) UN Doc A/Conf. 157/23 para 10.

72 CO Trinidad and Tobago, A/57/38, 26th Session (2002) para 156.

73 eg question to Turkey, UN Doc CEDAW/PSWG/2005/I/CRP.1/Add.8, para 1. It noted ‘the lack of information on the integration of a gender perspective in the State party’s economic planning’. CO Turkey, A/60/38, 32nd Session (2005) para 379.

74 eg CO China, CEDAW/C/CHN/CO/6 (2006) paras 15–16.

75 eg CO Belarus, A/59/38, 30th session (2000) para 354.

76 CO China, CEDAW/C/CHN/CO/6 (2006) paras 15–16.

77 eg CEDAW, ‘Working paper on the World Summit on Sustainable Development’ (n 8 above) para 6(i); CO Mauritius, CEDAW/C/MAR/CO/5 (2006) para 8.

78 Beijing Platform for Action (n 25 above) para 47.

79 SE Sweeney, ‘Government Respect for Women’s Economic Rights’ in S Hertel and L Minkler (eds), Economic Rights Conceptual, Measurement and Policy Issues (2007) 233, 236–9.

80 CO India, CEDAW/C/IND/CO/3 (2007) para 46.

81 See E Evatt, ‘Private Global Enterprises, International Trade and Finance’ in HB Schöpp-Schilling and C Flinterman (eds), The Circle of Empowerment: Twenty-Five Years of The UN Committee on The Elimination of Discrimination against Women (2007) 106, 117.

82 Decision 43/II, Statement by the Committee on the Elimination of Discrimination against Women on the international financial crisis and its consequences for the human rights of women and girls, UN Doc A/64/38 (Supp), 43rd Session (2009), Annex I.

83 eg CO Indonesia, CEDAW/C/IDN/CO/5 (2007) para 39; CO Ireland, A/60/38, 33rd session (2005) para 393; Statement of the Committee on the Elimination of Discrimination against Women on the situation in Haiti, UN Doc A/65/38, 45th Session (2010).

84 CEDAW, ‘Working paper on the World Summit on Sustainable Development’ (n 8 above) para 2.

85 Ibid para 425.

86 GR 21 para 21.

87 Ibid para 38.

88 Ibid para 23.

89 GR 24 para 7. See also the Beijing Declaration and Platform for Action (n 25 above) para 216.

90 GR 28 para 31 (using the language of ‘lifespan’).

91 UNGA Res 48/104 (1993) recognizes that violence against women has led to the ‘prevention of the full advancement of women’.

92 eg CO Bolivarian Republic of Venezuela, CEDAW/C/VEN/CO/6 (2006) para 18.

93 eg GR 18; CO Myanmar, CEDAW/C/MMR/CO/3 (2008) para 33; CO India, CEDAW/C/IND/CO/3 (2007) para 15. The Convention on the Rights of Persons with Disabilities, art 6 identifies the multiple discriminations faced by women with disabilities.

94 S Goonesekere, ‘The Conceptual and Legal Dimensions of a Rights-Based Approach, and its Gender Dimensions’ in UN Division for the Advancement of Women, A Rights-Based Approach to Women’s Empowerment and Advancement and Gender Equality (1998).

95 Vienna Declaration and Programme of Action, (1993) UN Doc A/CONF.157/23 part I para 18; part II para 36.

96 Relevant conferences are listed in a number of concluding observations, eg CO Samoa, A/60/38, 32nd Session (2005) para 68.

97 Beijing Declaration and Platform for Action para 213.

98 UNGA Res 55/2, United Nations Millennium Declaration, UN Doc A/RES/55/2 (2000) para 20.

99 eg the MDGs, Goal Three: ‘Promote Gender Equality and Empower Women’.

100 P Alston, ‘Ships Passing in the Night: The Current State of the Human Rights and Development Debate seen through the Lens of the Millennium Development Goals’ (2005) 27 Human Rights Quarterly 755.

101 S Goonesekere, ‘Universalizing Women’s Human Rights through CEDAW’ in Schöpp-Schilling and Flinterman (eds) (n 81 above) 52, 65.

102 OHCHR, Claiming the Millennium Development Goals: A Human Rights Approach (2008) 7.

103 P Alston and M Robinson (eds), Human Rights and Development: Towards Mutual Reinforcement (2005).

104 The Mandate of the Special Rapporteur on Violence Against Women (1994–2009)—A Critical Review, 35.

105 ‘From victimization towards empowerment’, ibid 34.

106 eg CO Indonesia, CEDAW/C/IDN/CO/5 (2007) para 43; CO Myanmar, CEDAW/C/MMR/CO/3 (2008) para 53; CO India, CEDAW/C/IND/CO/3 (2007) para 63; CO Israel, CEDAW/C/ISR/CO/3 (2005) para 45.

107 Rehof (n 3 above) 64.

108 R Cook, ‘State Accountability under the Convention on the Elimination of All Forms of Discrimin-ation against Women’ in Cook (ed), (n 70 above) 228, 236.

109 GR 25 para 6.

110 Ibid.

111 The earlier general recommendation on Violence against Women, GR 12, did not mention art 3.

112 UK, One Year on Report (n 7 above) para 6. The UK mentions art 5(b).

113 GR 25 para 10.

114 See also GR 28 para 16.

115 Ibid para 34.

116 eg the questions asked of Japan about educational programmes for women; CO Japan, UN Doc A/49/38 (Supp) 13th Session (1994) art 3 para 561 could have been located under art 10.

117 eg asked about programmes for the advancement of women, the Russian representative described programmes of support for women to enter public life which could have been supplied under art 7; CO Russia, UN Doc A/57/38, 14th Session (1995) art 3 para 504.

118 eg CO Madagascar, CEDAW/C/MDG/CO/5 (2008) para 32.

119 GR 21 para 50. This obligation is said to be required by arts 2, 3, and 24.

120 Z Ilic and I Corti, UNITAR Manual on Human Rights Reporting, UN Doc HR/PUB/91/1 (1991).

121 GR 6 does not refer to art 3 or 24.

122 eg CO Bolivarian Republic of Venezuela, CEDAW/C/VEN/CO/6 (2006) para 6 (welcoming efforts at strengthening the national machinery for the advancement of women).

123 S Cusak and RJ Cook, ‘Combating Discrimination Based on Sex and Gender’ in C Krause and M Scheinin (eds), International Protection of Human Rights: A Textbook (2009) 205, 208.

124 eg CO Bolivarian Republic of Venezuela, CEDAW/C/VEN/CO/6 (2006) para 7.

125 eg CO Italy, A/60/38, 32nd session (2005) para 318.

126 eg CO Indonesia, CEDAW/C/IDN/CO/5 (2007) para 14.

127 CO Japan, UN Doc A/49/38, 13th Session (1994) art 3, para 563.

128 eg CO Malaysia, CEDAW/C/MYS/CO/2 (2006) para 5.

129 CO Samoa, A/60/38, 32nd Session (2005) para 41.

130 eg CO Sierra Leone, CEDAW/C/SLE/Q/5 (2007) art 3, para 8 (questioning about government plans to deploy regional desk officers outside of Freetown).

131 eg CO Bolivarian Republic of Venezuela, CEDAW/C/VEN/CO/6 (2006) para 17; CO Nigeria, CEDAW/C/NGA/CO/6 (2008) para 9.

132 eg CO Ireland, A/60/38, 33rd Session (2005) para 385.

133 eg question to DPR Korea, CEDAW/PSWG/2005/II/CRP.1/Add.3 (2005) art 3, para 5.

134 The Committee regularly refers to the Beijing Platform, eg CO New Zealand, CEDAW/C/NZL/CO/6 (2006) para 6.

135 CO Eritrea, CEDAW/C/ERI/CO/3 (2006) para 12.

136 eg CO Benin, CEDAW/PSWG/2005/II/CRP.1/Add.1 (2005) art 3, para 7.

137 eg CO Guatemala, A/57/38, Exceptional Session (2002) para 180.

138 eg General Observations Russian Federation, UN Doc A/50/38 (Supp) 14th Session (1995) para 503.

139 eg General Observations, The Netherlands, UN Doc A/49/38 (Supp) 13th Session (1994) para 265.

140 eg CO St Lucia, CEDAW/C/LCA/Q/6, (2006) art 3, para 5; CO Pakistan, CEDAW/C/PAK/Q/3 (2007) art 3, para 6.

141 eg CO Lithuania, CEDAW/C/LTU/CO/4 (2008) para 72.

142 eg CO Peru, CEDAW/C/PER/CO/6 (2007) para 14.

143 eg question to the FYROM, 34th Session CEDAW/C/MKD/Q/1–3 (2005) art 3, para 3.

144 eg CO Lithuania, CEDAW/C/LTU/CO/4 (2008) para 73.

145 eg question to Mauritius, CEDAW/C/MAR/Q/5 (2006) para 5.

146 eg CO Denmark, CEDAW/C/DEN/CO/6 (2006) para 5.

147 eg ibid (concern that the Gender Equality Division had only four employees and that the work of the gender focal points was in addition to their regular tasks).

148 eg CO Indonesia, CEDAW/C/IDN/CO/5 (2007) para 5; CO Estonia, A/57/38, 26th Session (2002) para 91.

149 eg question to Lao People’s Democratic Republic, CEDAW/PSWG/2005/I/CRP.1/Add.5 (2005) art 3, para 4.

150 CO Ireland, A/60/38, 33rd Session (2005) para 377.

151 eg CO Germany, A/59/38, 30th Session (2004) para 382.

152 See generally H Charlesworth, ‘Not Waving But Drowning: Gender Mainstreaming and Human Rights in the United Nations’ (2005) 18 Harvard Human Rights J 1–18; S Kouvo, ‘The United Nations and Gender Mainstreaming: Limits and Possibilities’ in D Buss and A Manji (eds), International Law: Modern Feminist Approaches (2005) 237–52.

153 CO Indonesia, CEDAW/C/IDN/CO/5 (2007) para 14.

154 CO Lithuania, CEDAW/C/LTU/CO/4 (2008) para 72.

155 eg CO Germany, A/59/38, 30th Session (2004) para 378.

156 eg CO New Zealand, CEDAW/C/NZL/CO/6 (2006) para 15; CO Czech Republic, CEDAW/C/CZE/CO/3 (2006) para 12.

157 eg CO China, CEDAW/C/CHN/CO/6 (2006) para 16.

158 eg CO Trinidad and Tobago, A/57/38, 26th Session (2002) para 143.

159 eg CO Iceland, A/57/38, 26th Session (2002) para 254.

160 eg CO Mauritania, CEDAW/C/MRT/CO/1 (2007) para 24.

161 E Evatt, ‘Private Global Enterprises, International Trade and Finance’ in Schöpp-Schilling and Flinterman (eds) (n 81 above) 106.

162 CEDAW, ‘Working Paper on the World Summit on Sustainable Development’ (n 8 above) para 6(g).

163 ‘Report on Mexico produced by the Committee on the Elimination of Discrimination against Women under art 8 of the Optional Protocol to the Convention, and reply from the Government of Mexico’, CEDAW/C/2005/OP.8/MEXICO para 50.

164 Art 3 was not mentioned in earlier individual communications: Ms AT v Hungary CEDAW Communication No 2/2003 (2005), CEDAW/C/32/D/2003 or Ms AS v Hungary CEDAW Communication No 4/2004 (2006), CEDAW/C/36/D/4/2004. Ms NSF v the UK CEDAW Communication No 10/2005, did not invoke any Convention article but the Committee remarked that the asylum claim appeared ‘to raise issues under arts 2 and 3 of the Convention’. The Communication was found inadmissible for failure to exhaust domestic remedies.

165 Communication No 5/2005 (6 August 2007) CEDAW/C/39/D/5/2005.

166 Ibid para 12.1.6.

167 Communication No 6/2005 (1 October 2007) CEDAW/C/39/D/6/2005.

168 Ibid paras 3.1 and 12.1.6. See also discussion in ch on violence against women below.

169 eg questions to Gambia, CEDAW/PSWG/2005/II/CRP.1/Add.4, 33rd Session (2005) art 3, para 3.

170 Question to DPR Korea, CEDAW/PSWG/2005/II/CRP.1/Add.3, 33rd Session (2005) art 3, para 6.

171 This phrase from the Philippines’ draft was removed during drafting; Rehof (n 3 above) 63.

172 eg CO Romania, CEDAW/C/2000/II/CRP.3/Add.7 (2000) para 300; CO Cook Islands, CEDAW/C/COK/CO/1 (2007) para 13.

173 eg CO Ireland, A/60/38, 33rd Session (2005) para 385.

174 CO Cook Islands, CEDAW/C/COK/CO/1 (2007) para 27.

175 General Observations Japan, A/49/38 (Supp) 13th Session (1994) art 3, para 561. See also discussion in ch on art 10.

176 GR 9 does not refer to art 3, although the Committee has done so elsewhere in relation to statistics.

177 eg CO China CEDAW/C/CHN/CO/6 (2006) para 16.

178 CO Peru, CEDAW/C/PER/CO/6 (2007) para 10.

179 CO India, CEDAW/C/IND/CO/3 (2007) para 15.

180 CO Peru, CEDAW/C/PER/CO/6, (2007) para 11.

181 eg CO Uzbekistan, CEDAW/C/UZB/CO/3 (2006) para 17.

182 GR 25 para 34; question to Cambodia, CEDAW/C/KHM/Q/1–3 (2005) art 3, para 8.

183 CO Nigeria, CEDAW/C/NGA/CO/6 (2008) para 7.

184 eg CO Malaysia, CEDAW/C/MYS/CO/2 (2006) para 32.

185 eg question to Turkmenistan, CEDAW/C/TKM/Q/2 (2006) art 3, para 9.

186 eg CO Belarus, A/59/38, 30th Session (2004) paras 343–4.

187 eg CO Uzbekistan, CEDAW/C/UZB/CO/3 (2006) para 17.

188 eg CO Cook Islands, CEDAW/C/COK/CO/1, (2007) para 17; question to Syria, 38th Session CEDAW/C/SYR/Q/1, (2006) art 3, para 9.

189 eg CO Eritrea, CEDAW/C/ERI/CO/3 (2006) para 32.

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