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Max Planck Encyclopedia of International Procedural Law [MPEiPro]

Committee on the Elimination of Discrimination Against Women (CEDAW)

Anne Hellum, Ingunn Ikdahl

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved.date: 14 April 2021

Subject(s):
Gender — Women, rights — Individual complaint procedure — Compliance with international decisions

Published under the direction of Hélène Ruiz Fabri, with the support of the Department of International Law and Dispute Resolution, under the auspices of the Max Planck Institute Luxembourg for Procedural Law.

A.  Background

The Convention on the Elimination of All Forms of Discrimination against Women (‘CEDAW’ or ‘Convention’) was adopted by the United Nations General Assembly (‘UNGA’ or ‘General Assembly’) in 1979, and entered into force in 1981. As of December 2018, it has 189 parties. The framers were of the view that a convention and a treaty body with a gender specific approach were necessary to protect women against pervasive discrimination on the basis of their sex and as such promote substantive equality between women and men (Byrnes, 2012, 52). In line with this position, Article 1 CEDAW establishes a prohibition addressing ‘all forms of discrimination against women’ while Article 17 (1) CEDAW establishes a body of independent experts ‘[f]or the purpose of considering the progress made in the implementation of the present Convention’.

The history of the Committee on the Elimination of Discrimination Against Women (‘CEDAW Committee’ or ‘Committee’) speaks to the political and institutional developments that have broadened the scope of its activities. The power of the Committee was, in spite of some support for an individual complaint procedure, initially limited to the consideration of reports by States Parties under Article 18 (1) CEDAW. The Vienna Declaration and Programme of Action (1993, para 40) represented a breakthrough for the call from women’s organizations, the UN Commission on the Status of Women (‘CSW’), the CEDAW Committee, and independent experts for a right of individual petition (Connors, 2012, 609–15). After a long process, the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (‘CEDAW-OP’), which establishes an individual communications procedure and an inquiry procedure, was adopted by consensus by the UNGA in October 1999, and entered into force in December 2000. As of December 2018, the Protocol has 109 parties.

Whereas all other human rights treaties (Committees: Human rights bodies) originate from the United Nations Commission on Human Rights (‘OHCHR’), the CEDAW was negotiated within the CSW. As a result, the CEDAW Committee was first located in Vienna and later in New York, where its work was facilitated by the United Nations Division for the Advancement of Women. Since the transition of the CEDAW secretariat from New York to Geneva in 2008, the work of the CEDAW Committee has been supported by the OHCHR Secretariat. This has facilitated regular interaction with the broader human rights community.

The work of the Committee is guided by the Convention which, in accordance with Article 19 CEDAW, is supplemented with the Rules of Procedure of the Committee on the Elimination of Discrimination against Women (‘CEDAW Rules of Procedure’, 2008). An in-depth analysis of the Convention, including the norms that guide the work of the Committee, is found in the standard work The UN Convention on the Elimination of All Forms of Discrimination against Women: A Commentary (Freeman, Chinkin, and Rudolf, 2012).

B.  Institutional Set-up

The Committee is composed of twenty-three members, a higher number than most other treaty bodies. In comparison, the Human Rights Committee, the Committee on the Elimination of Racial Discrimination (CERD), the Committee on the Rights of the Child (CRC), and the Committee on the Rights of Persons with Disabilities (CRPD) have eighteen members each. Article 17 CEDAW requires the Committee members to be ‘experts of high moral standing and competence in the field covered by the Convention’. The disciplinary background of members has been diverse; between a third and a half of the members have had a legal background, and additional types of expertise represented include politics, public health, education, gender studies, and international diplomacy (Byrnes, 2013, 29). Between 2000 and 2010, about half of the Committee members were government employees, a quarter were practicing lawyers, and another quarter were academics. About half of the experts had non-governmental organization (‘NGO’) affiliations (Zwingel, 2016, 76–77). While the breadth of professional backgrounds is a strength for analysing the legal, sociocultural, and economic dimensions of discrimination against women, the individual complaint procedure calls for more members with a legal background. In spite of the ‘equitable geographic distribution’ clause in Article 17 (1) CEDAW and a recommendation in UNGA Resolution 64/173 (2009, para 366), there is no system for regional quotas. Moreover, there have been very few male members: of the 128 experts who served until 2014, only four were men.

The Committee members serve in their personal capacity and shall be independent from national authorities. The members’ independent position is reflected in Rule 60 CEDAW Rules of Procedure: individual members do not engage in the examination of State reports, communications, or inquiries concerning the State Party of which the member is a national. They are nominated through an internal national process, and elected at a biannual meeting of the States Parties held by secret ballot. The term is four years, but re-election is allowed.

The CEDAW is the only Convention where the treaty text itself establishes a set time limit for the treaty body’s meetings: ‘normally not more than two weeks annually’ (Art 20 (1) CEDAW). Due to the increasing workload, caused by the rapidly growing number of States Parties and the entry into force of the CEDAW-OP, the number and length of sessions have gradually expanded. From 2010, the General Assembly authorized the convening of three annual sessions, amounting to forty-five working days (UNGA Resolution 62/218, 2007, para 14–15). However, although a meeting of the States Parties in 1995 agreed on an amendment of Article 20 (1) CEDAW to bring it in line with practice (CEDAW Proposed amendment, 1995), this has not yet received the sufficient formal acceptance to enter into force.

The secretarial support of the CEDAW Committee has been upgraded, from the underfunded and understaffed Branch for the Advancement of Women to the current (since 2008) support from the OHCHR. This has strengthened the Committee’s human rights competence, but has also been seen as weakening the relationship with the parts of the UN system working specifically on women’s and gender issues (Chinkin and Freeman, 2012, 25–28; Flinterman, 2012, 395–96; Zwingel, 2016, 70).

C.  The Work of the Committee

To monitor the implementation of the CEDAW, three mechanisms are in place: a State reporting procedure, an individual communication procedure, and an inquiry procedure. To perform these tasks, the CEDAW Committee, like other treaty bodies, is implicitly endowed with the power to interpret and develop the Convention’s normative standards. The Committee performs these closely intertwined functions through four types of documents: state reporting/concluding observations, general recommendations, individual communications, and inquiries. The CEDAW Rules of Procedure contains details on how the different mechanisms are conducted in practice.

1.  State Reporting and Concluding Observations

10  According to the Article 18 (1) CEDAW, State Parties shall report periodically on the ‘legislative, judicial, administrative or other measures which they have adopted to give effect to the provisions of the present Convention and on the progress made in this respect’. Under Article 17 (1) CEDAW, the Committee is tasked with ‘considering the progress made in the implementation of the present Convention’. This broad mandate has enabled the Committee to develop its methods of work through Rules 48–54 CEDAW Rules of Procedure. ‘Considering’ has been interpreted as involving a constructive dialogue with States Parties.

11  States Parties are under an obligation to submit their initial report within a year from their ratification of the Convention and subsequent reports every four years (Art 18 CEDAW). The Committee has developed detailed guidelines for the content of reports (CEDAW Reporting guidelines, 2009).

12  In practice, delays are common. Where States fail to submit reports in time, the Committee sends reminders and deadlines. In the event of delays, the State Party may combine outstanding reports. The Committee can ‘as a last resort’ consider the implementation of the Convention in the state concerned without a report (Report of the Committee on the Elimination of Discrimination against Women, adopted at the Forty-first Session, 2008, part II, para 419).

13  A pre-session working group prepares a list of questions in response to the report, and asks the State to respond to these before the dialogue meeting. The Committee uses information from the UN special agencies (Art 22 CEDAW) and ‘shadow reports’ from NGOs and national human rights institutions as additional background for their questions and views. The Committee’s use of its competence to establish rules of procedure has thus facilitated a more balanced reporting process (Statement by the Committee on the Elimination of Discrimination against Women on its Relationship with Non-Governmental Organizations, adopted at the Forty-fifth Session, 2010, para 8; Boerfijn, 2012, 497, 505–7).

14  During the dialogue, a delegation from the State Party presents the report, and Committee members ask questions. The questions are clustered according to the four substantive parts of the Convention. Afterwards, the Committee, in line with its mandate to ‘make suggestions … based on the examination of reports and information received from the States Parties’ (Art 21 (1) CEDAW), issues its ‘concluding observations’ (‘COs’). These include sections on difficulties, positive aspects, principal areas of concern, and recommendations for action.

15  An innovation introduced in 2008 is the follow-up procedure. Following the practices of other treaty bodies, the Committee identifies two recommendations that are perceived as most urgent, for which it requests the State to present within one or two years a follow-up report on specific implementation steps. A committee member serves as rapporteur on follow-up reports and assesses the implementation of the recommendations (Decision 54/IX: Methodology of the follow-up procedure to concluding observations, 2013). This procedure significantly adds to the work burden of the Committee and the States, and its effectiveness has been questioned (Zwingel, 2016, 94). When the procedure was assessed by the Committee in 2016, a review showed that 18 per cent of the recommendations of the Committee had been implemented, 37 per cent had been partly implemented, 26 per cent had not been implemented, while sufficient information was lacking in 20 per cent of the cases (Assessment of the follow-up procedure under Article 18 of the CEDAW Convention, 2016, 5). On this background, the Committee has concluded that the follow-up procedure enhances the implementation of the Convention.

16  The State reporting procedure and the concluding observations serve a dual purpose: improving implementation of the CEDAW in the State concerned, and clarifying and developing the norms embedded in the Convention.

17  A hurdle concerning national implementation is the Committee’s lack of power to enforce compliance and the recommendatory character of its concluding observations (Kälin, 2012, 31). Nevertheless, the binding character of the treaty obligations, the role formally assigned to the treaty body, and the reporting process itself, create the potential for considerable influence. The process can, depending on the political and legal context, be an arena for both the Committee and actors such as NGOs to make inputs that may result in change, or at least legitimize the work of women’s rights organizations (Hellum and Aasen, 2013, 623–24, 642–45; Simmons, 2009, 253–55). Furthermore, the clarity and quality of the COs and the subsequent communication of their content to civil society, politicians, and the legal community afterwards may increase their impact.

18  The second, and more indirect, role of the State reporting process concerns norm development. The ‘constructive dialogue’ aims at advising and assisting the States, and its foundation is State acceptance and respect. Thus, the Committee’s task has been perceived as a balancing act between pushing for implementation and retaining legal and political legitimacy (Zwingel, 2016, 80–100). The COs rarely draw strict lines between violations and compliance, and may thus appear less suited to clarification of norms. However, the examination of reports clearly helps the committee to identify new and pressing general issues. It thus serves as a basis for solidifying and developing the interpretation of the treaty through ‘general recommendations’. The COs also assist the Committee in its considerations of individual complaints. In AT v Hungary, the Committee referred explicitly to its earlier consideration of Hungary’s periodic reports (2005, para 9.4). It highlighted how the facts of the individual complaint mirrored concerns that the Committee had recognized at a general level in the COs from 2002. Thus, the concluding observations contribute building blocks for new general recommendations as well as for the handling of individual complaints—which will, in turn, inform subsequent concluding observations. This intimate relationship between the different monitoring mechanisms sheds light on the dynamics through which the Committee develops, sharpens, and reinforces the normative content of the Convention.

2.  General Recommendations

19  Article 21 (1) CEDAW mandates the Committee to ‘make … general recommendations based on the examination of reports and information received from the States Parties’. The Committee has used this as the legal basis to develop a series of documents setting out its interpretation of the CEDAW. As of December 2018, there are thirty-seven such ‘General Recommendations’ (‘GRs’).

20  They are not legally binding in the strict sense, but may, depending on their quality and relevance, be considered authoritative interpretations (Authoritative interpretation) of the treaty and have been so viewed by national and international courts. Both the United Kingdom Supreme Court and the Indian Supreme Court have, for example, made reference to GR 19 on violence against women when interpreting national law (see, respectively, Fredman, 2013, 514; and Mehra, 2013, 406).

21  The Convention gives the Committee wide discretion in both the format of the GRs and the procedure for selecting and preparing the documents. Since 1997, the process of preparing GRs has been governed by guidelines adopted by the Committee (Rules 33–35 CEDAW Rules of Procedure). The process starts with an open debate on the selected topic, where the Committee invites input from UN bodies, NGOs, and others. In some cases, regional consultations take place.

22  The GRs fall into different categories. Initially, the focus was mainly on procedural matters (see eg GR 1, 1986; GR 2, 1987; GR 6, 1988; GR 9, 1989; GR 11, 1989; and GR 17, 1991). Gradually, the focus shifted to specific themes such as violence against women (GR 12, 1989; GR 19, 1992; and GR 35, 2017), equality in the family (GR 21, 1994; and GR 29, 2013), participation in public and political life (GR 23, 1997), health (GR 24, 1999), education (GR 36), and climate change (GR 37). The multiple identities of specific groups of women have been addressed in general recommendations concerning women migrant workers (GR 26, 2017), older women (GR 27, 2010), women in conflict (GR 30, 2013), refugee women (GR 32, 2014), and rural women (GR 34, 2016). Finally, general themes and concepts have been analysed in GR 20 on reservations (1992), GR 25 on substantive equality and temporary special measures (2004), GR 28 on the core obligations of States Parties (2010), and GR 34 on access to justice (2016).

23  The Committee has also updated earlier GRs such as GR 29 on equality in family life (2013) and GR 35 on violence against women (2017). However, pressing issues like gender-based poverty, and the scope and content of Article 5 (a) CEDAW on gender stereotypes, have not yet been addressed (Campbell, 2018, 3–28).

24  Over time, GRs have emerged as key tools to make the Committee’s understanding of the Convention accessible, consistent, and dynamic. The Committee incorporates lessons from its own experiences as well as from normative developments in other parts of international law. The role these documents can play as sources of law, including outside the context of the CEDAW, is visible in national and international case law (see sec D3 below.).

3.  Individual Communications

25  Article 1 CEDAW-OP establishes the Committee’s competence to receive and consider individual complaints (Human Rights, Individual Communications/Complaints). Articles 2, 3, and 4 CEDAW-OP establish the criteria for admission. Articles 5, 6, and 7 set out the procedural framework. The Committee adopted rules of procedure for the consideration of communications received under the CEDAW-OP in 2001 (Rules 56–75 CEDAW Rules of Procedure). Since its entry into force in 2000, the Committee has dealt with sixty-one communications. Thirty-three of these have been considered inadmissible, and twenty-eight have been considered on their merits. As of December 2018, there are twenty-four cases where the Committee has found violations of the Convention, and four cases of non-violation.

26  The procedure is open to communications from or on behalf of individuals and groups of individuals under the jurisdiction of a State Party (Art 2 CEDAW-OP). Consent from the (group of) individuals is required, unless the author of the communication can justify acting on their behalf. Article 2 CEDAW-OP requires that the claim must constitute a concrete violation of the State Party’s obligation under the Convention. Claims that constitute a general request for review of legislation have been found inadmissible (BJ v Germany, 2004). In line with the principle of transparency, communications must be in writing and not anonymous (Art 3 CEDAW-OP).

27  Article 4 (1) CEDAW-OP contains the principle of subsidiarity, requiring that ‘all available domestic remedies are exhausted’ (Local Remedies, Exhaustion of). In BJ v Germany, the Committee held that the complaint was inadmissible because some aspects of the case were pending and other aspects had not been correctly brought to the appeal courts. The Committee has held communications inadmissible when the sex discrimination argument has not been explicitly made at the national level, as the domestic courts should be given an opportunity to deal with the discrimination claim (Kayhan v Turkey, 2006, paras 7.1–7.2; NK v Norway, 2016, paras 6.1–6.3).

28  However, Article 4 (1) CEDAW-OP makes an exception where ‘the application of such remedies is unreasonably prolonged or unlikely to bring effective relief’. The Committee has, with reference to the life-threatening situation of the victim, relied on this exception in cases concerning violence against women (Vienna Intervention Centre against Domestic Violence and Association for Women’s Access to Justice (on the application of Akbak and ors) (on behalf of Yildirim) v Austria (‘Yildirim v Austria’), 2007, para 11.3). The Committee has also adopted the view that the exhaustion requirement only applies to remedies that are available to a claimant in practice (AT v Hungary, para 8.4).

29  Article 4 (2) (a)–(c) CEDAW-OP require that the matter must not be simultaneously examined by another human rights body, be incompatible with provisions of the CEDAW, or be manifestly ill-founded. Article 4 (2) (e) declares that communications that rely on facts that occurred prior to the protocol’s entry into force are inadmissible. The Committee has taken a restrictive approach in cases where the facts continued after the CEDAW-OP’s entry into force (BJ v Germany, paras 8.1–8.2; Dayras and ors v France, 2009, paras 10.1–10.2; Muñoz-Vargas y Sainz de Vicuña v Spain, 2007, paras 11.1–11.2).

30  Overall, the Committee’s interpretations of the admissibility criteria speak to the tense relationship between on the one hand striving for legal legitimacy and State acceptance, and efforts to promote access to (international) justice on the other. However, the formalistic and restrictive interpretations of the admissibility criteria in cases where equality issues have formed an integrated, but not explicit part of the argument before domestic courts (Art 4 (1) CEDAW-OP), as well as in cases of continuing facts (Art 4 (2) (e) CEDAW-OP), do not sit well with the demands of substantive equality and effective sanctions (Jansen, 2012, 438–39; Chinkin, 2012, 473).

31  Basic procedural requirements are due process, transparency, and the safety of the complainant. Article 5 (1) CEDAW-OP gives the Committee power to transmit to the State Party an ‘urgent consideration’ to take interim measures to avoid possible ‘irreparable harm’ to the alleged victim. While such calls for interim measures are not legally binding, they are often followed by the State Parties (AT v Hungary, para 4.2; NSF v United Kingdom, 2007, para 1.3). The Committee’s consideration of communications is limited to information provided by the complainant and the State Party (Art 7 (1) CEDAW-OP). Additional material from a third party may, however, be submitted by the individual or group of individuals that is lodging the claim.

32  The Committee has the power to adopt views identifying the provisions of the Convention that have been violated by the State Party, as well as recommendations for measures to remedy the violation (Art 7 (3) CEDAW-OP). Such recommendations can be directed to the situation of the individual victim, but can also point out the State’s duty to take action against the social, economic, and legal structures that cause discrimination. In AT v Hungary, the Committee called upon the State Party to take immediate and effective measures to guarantee the victim and her children a safe home, reparation, and compensation. To prevent future discrimination against women, the Committee has called upon State Parties to review discriminatory legislation, and provide training of judges and police with a view to changing stereotypical perceptions of women (Vertido v Philippines, 2010, para 8.9). In ES and SC v Tanzania, the Committee recommended that the Tanzanian State ensure that all discriminatory customary laws are repealed (2015, para 8.9). In this regard, the Committee called upon the Tanzanian State to encourage dialogue between women’s rights organizations and traditional leaders. In MW v Denmark, it recommended Denmark to conduct research on the impact of custody laws on foreign mothers (2016, para 6 (b) (iv)).

33  The CEDAW-OP’s follow-up procedure (Art 7 (4)–(5)) was the first of its kind. The State Party must, within six months, submit to the Committee a written report on action taken on its views and recommendations. Two Committee members are appointed as Rapporteurs on the follow-up, and the Committee may invite further information about any measures taken by the State Party. The Committee has made active use of the follow-up mechanism in a number of cases (AS v Hungary, 2006; Yildirim v Austria; da Silva Pimentel v Brazil, 2011).

34  The views and recommendations of the Committee ‘shall be given due consideration by the State Party’ (Art 7 (4) CEDAW-OP). The dominant view in human rights theory is that the treaty bodies’ views in individual communications, unlike international and national court decisions, are not formally legally binding on the parties, but attract ‘great legal weight’ as a source of interpretation (Ulfstein, 2012, 94–100). Regional courts’ use of individual communications from the CEDAW Committee as arguments for interpretation of nondiscrimination standards in the regional human rights treaties is covered in section D.4 below.

35  The Committee has, in spite of the relatively low number of individual communications, made important contributions to the jurisprudence of the Convention in particular, and international human rights law in general. One example is the ‘due diligence principle’, which delineates States Parties’ obligation to take reasonable measures to protect women against violence from non-State actors. The principle was stated in GR 19, para 9, but the content of this obligation, including the types and level of action required from the State, has been clarified significantly by the Committee through individual cases (Byrnes and Bath, 2008, 517–33; Byrnes, 2013, 46–47; Meyersfeld, 2010, 232–35).

36  Another significant contribution is how the Committee addresses individual and structural elements of discrimination as an integrated whole. Unlike the Human Rights Committee and the CERD Committee, the CEDAW Committee addresses both individual and structural obligations of States in the context of individual complaints, in the analysis of violations as well as in the recommendations for remedies. An example is Vertido v Philippines, which points out how societal structures, including gender stereotypes of victims and perpetrators in situations of rape, impinge on the court’s assessment of evidence in a criminal case. In response, the Committee recommended that the State not only seek a remedy for the individual concerned, but also take measures to change these structures through the training of judges and legal amendments. Highlighting structural dimensions in individual complaints draws attention to the State obligation to change social, economic, and cultural structures that lead to inequality. This integrated approach is innovative and carries a transformative potential. However, the clarity and persuasiveness of the Committee’s individual communications vary. As pointed out by critics, the Committee needs to further improve the quality of its arguments and procedures if it is to increase its impact on State Parties and other human rights treaty bodies (Campbell, 2016, 1–32).

4.  Inquiry Procedure

37  The ‘inquiry procedure’ is established by Articles 8 and 9 CEDAW-OP. The procedures are further specified in Rules 76–91 CEDAW Rules of Procedure (Section XVII) (Inquiry procedures: Human rights bodies).

38  This mechanism offers a means of addressing situations in which individual communications do not adequately reflect the systematic nature of grave and widespread violations of women’s rights, or where individuals or groups are unable to submit communications due to practical constraints or fear of reprisals.

39  If the Committee receives ‘reliable information’ indicating ‘grave or systematic violations’ of the Convention by a State Party it shall, according to Article 8 (1) CEDAW-OP, invite the State Party to cooperate in the examination of the information. ‘Grave violations’ would constitute severe abuses such as discrimination against women linked to violations of their rights to life, physical and mental integrity, and security of person. ‘Systematic violations’ refers to the scale or prevalence of violations, or to the existence of a scheme or policy directing violations.

40  The reliability of the information is to be evaluated based on its consistency, corroborating evidence, the credibility of its sources and information from other national, international, official, and unofficial sources (Connors, 2012, 666). The information should be as complete as possible and include a clear description of the gravity and systematic character of the alleged violations.

41  The inquiry procedure is based on cooperation with the State concerned, and on confidentiality (Art 8 (5) CEDAW-OP). Thus, no information is released before the Committee has concluded its report.

42  As of December 2018, the Committee has concluded five inquiries.

43  Its first inquiry, concerning Mexico, was concluded in 2005 (Report on Mexico produced by the Committee on the Elimination of Discrimination against Women under article 8 of the Optional Protocol to the Convention, and Reply from the Government of Mexico (‘Report on Mexico’), 2005). In its report, the Committee concluded that investigated events around Ciudad Juarez were ‘systematic violations of women’s rights founded in a culture of violence and discrimination that is based on women’s alleged inferiority, a situation that has resulted in impunity’ (Report on Mexico, para 261). The Committee listed a number of recommendations to the Mexican authorities, aimed at preventing violence and discrimination against women (Report on Mexico, paras 263–94).

44  The second inquiry, concerning Canada, was concluded in 2015 (Report of the inquiry concerning Canada of the Committee of the Elimination of Discrimination against Women under Article 8 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (‘Report of the Inquiry concerning Canada’), 2015). It investigated the State’s response to the murders and disappearances of aboriginal women and girls. The Committee concluded that Canada’s efforts to address violence against aboriginal women and girls did not meet the due diligence standard in light of the gravity of the situation (Report of the Inquiry concerning Canada, paras 201–12). Recommendations ranged from improving the investigation and prosecution of all individual cases, to structural measures to improve the socioeconomic situation of aboriginal women (Report of the Inquiry concerning Canada, paras 216–20).

45  The third inquiry concerned the Philippines and was concluded in 2015 (Summary of the inquiry concerning the Philippines under article 8 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (‘Summary of the Inquiry concerning the Philippines’), 2015). Its topic was reproductive and sexual health, in particular limitations upon access to contraceptives. The concluding report found violations of several articles of the CEDAW (Summary of the Inquiry concerning the Philippines, paras 27–45), which were seen as ‘grave and systematic’ (paras 46–48). Addressing the unmet need for contraception the Committee recommended a number of legal and institutional changes (Summary of the Inquiry concerning the Philippines, paras 51–52).

46  The fourth inquiry, concerning the United Kingdom of Great Britain and Northern Ireland, was concluded in 2018 (Inquiry concerning the United Kingdom of Great Britain and Northern Ireland under article 8 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (‘Inquiry concerning the United Kingdom’), 2018). In its report, the Committee concluded that the restrictive access to abortion for women and girls in Northern Ireland amounted to grave and systematic violations of rights under the Convention (Inquiry concerning the United Kingdom, paras 78–83). The Committee recommended a number of legal and institutional changes, including not only the decriminalization of abortion, but also provision of rights-based counselling on sexual and reproductive services, including contraception and abortion (Inquiry concerning the United Kingdom, paras 84–86).

47  The fifth inquiry concerned Kyrgyzstan and was concluded in 2018 (Inquiry concerning Kyrgyzstan under Article 8 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (‘Inquiry concerning Kyrgyzstan’), 2018). Its topic was bride kidnapping. The report found that the State’s failure to prevent, protect, and assist victims, as well as to prosecute and adequately punish perpetrators, amounted to ‘grave and systematic violations’ of several articles of the CEDAW (Inquiry concerning Kyrgyzstan, paras 84–91). To address this issue, a comprehensive set of recommendations were given: taking legislative measures like criminalization of bride kidnapping and marital rape, improving law enforcement, providing victim support, conducting awareness-raising among eg religious leaders and media, and conducting data collection on bride kidnapping (Inquiry concerning Kyrgyzstan, paras 92–98).

48  In the five reports, the Committee has used the inquiry procedure to move beyond the limits of State reporting and individual complaints. The inquiry procedure allows for independent investigations on women’s rights abuses in specific areas of concern, and enables the Committee to address situations of systematic and grave human rights violations beyond individualized acts of discrimination. It thus constitutes a structure-oriented accountability mechanism. The Committee has used this mechanism to develop a jurisprudence that addresses how systematic discrimination and abuse is produced and upheld through interaction between a range of factors: laws, institutions, policies, public and private actors, cultural norms, gender stereotypes, and economic structures (Campbell, forthcoming 2019). In accordance with this, the Committee’s recommendations display a comprehensive understanding of the range of measures necessary to eliminate such ‘grave and systematic’ discrimination.

49  The practical effects of the inquiries are harder to assess than the implications for jurisprudence. The Committee lacks formal power to enforce its views and recommendations, but through close cooperation with State Parties and civil society organizations the inquiries have set off legal and political responses. Still, the impact of these initiatives varies and can only be fully measured over time. Mexico, where the first inquiry took place, continues to experience high rates of violence against women in spite of new laws, policies, and programmes.

D.  Interaction with Other Human Rights Institutions

1.  The Committee and Other Human Rights Treaty Bodies

50  The work of the CEDAW Committee intersects with the work of other human rights treaty bodies that monitor State compliance with their respective treaties’ non-discrimination standards. The chairperson of the CEDAW Committee participates in the meetings of the chairpersons of the human rights treaty bodies (Boerfijn, 2012, 479).

51  The UN’s emphasis on gender mainstreaming has led the other treaty bodies to look to the work of the CEDAW Committee with a view to including gender (or women’s) perspectives in their work. This influence is reflected in the adoption of general comments on equality and non-discrimination, such as the Human Rights Committee General Comment 28 on ‘Equality of Rights between Men and Women’ (2000) and the Committee on Economic, Social and Cultural Rights (CESCR) General Comment 16 on ‘the Equal Rights of Men and Women to the Enjoyment of All Economic, Social and Cultural Rights’ (2006). A concrete example of the closer cooperation between the committees is the joint CEDAW and CRC General Recommendation on ‘harmful practices’ (Joint General Recommendation/General Comment No 31 of the CEDAW and No 18 of the CRC, 2014).

2.  The CEDAW Committee and Other Procedures within the UN System Dealing with Women’s Human Rights

52  There exist several avenues for bringing issues relating to discrimination against women to the United Nations bodies. Alternative avenues other than the human rights treaty bodies are the special procedures of the Human Rights Council (‘HRC’) or the CSW. The text of the Convention provides entry points for cooperation with the UN Social and Economic Council (‘ECOSOC’) and the CSW (Art 21 CEDAW), as well as the specialized agencies of the UN (Art 22 CEDAW).

53  The UN Working Group on the Issue of Discrimination against Women in Law and in Practice was established by the HRC in 2010 (HRC Resolution 15/23, 2010). Owing to the failure of States to revoke and amend laws that discriminate against women, the HRC established, for a period of three years, a working group of five independent experts. Their mandate has since been renewed every three years. The Working Group’s focus is to identify, promote, and exchange views, in consultation with States and other actors, on good practices related to the elimination of laws that discriminate against women. It is also tasked with developing a dialogue with States and other actors on laws that have a discriminatory impact on women.

54  Any individual, NGO, group, or network may submit communications to the CSW containing information relating to alleged violations of human rights that affect the status of women in any country in the world. The CSW considers such communications as part of its annual programme of work, in order to identify emerging trends and patterns of injustice and discriminatory practices against women for purposes of policy formulation and the development of strategies for the promotion of gender equality.

3.  Unification or Fragmentation and Duplication?

55  The proliferation of treaty bodies and special procedures has been seen as potentially contributing to the fragmentation of international law, including risks of conflicting jurisprudence as well as unnecessary duplication of work (Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law—Report of the Study Group of the International Law Commission, 2006). In response to the risk of conflicting jurisprudence, the Secretariat is systematically preparing notes for the CEDAW Committee on the meetings and substantive activities of the other treaty bodies and relevant political bodies, such as the CSW and the special rapporteurs of the HRC. Moreover, several studies demonstrate that the different institutions learn and draw inspiration from each other in the field of gender equality and non-discrimination (Hellum and Aasen, 2013, 638–41); van Leeuwen, 2013, 242–67; Ikdahl, 2013, 268–91; Aasen, 2013, 292–329). The CEDAW Committee’s work to strengthen women’s right to protection against violence through development of the due diligence principle has taken place in response to and interaction with developments elsewhere, including the production of UNGA declarations and resolutions, and reports and recommendations from special rapporteurs (Chinkin, 2012, 444–74).

56  The fear of unnecessary duplication of reporting mechanisms, thus increasing the workload of States as well as treaty bodies, has been an element in the past 10–15 years of debate over treaty body reform. Given the CEDAW Committee’s emphasis on not only differences between women’s and men’s enjoyment of human rights, but also the diverse needs of different groups of women, it is not surprising that the CEDAW Committee has emphasized the importance of avoiding oversimplification. One early example came in response to the OHCHR proposal for a unified standing treaty body (OHCHR, 2006): the Committee warned about the ‘risk of undermining the differentiation and specificity of human rights as enshrined in the seven major international human rights treaties’ (Statement by the Committee on the Elimination of Discrimination against Women: ‘Towards a harmonized and integrated human rights treaty bodies system’, 2006, para 4). The Committee thus emphasizes the potential, rather than the problems, of exploring human rights from differentiated starting points. This perspective is supported by research arguing that the CEDAW Committee, from its gender specific vantage point, has contributed to the development of standards that take into account the concerns of different groups of women in different situations (Zwingel, 2016, 72–74; Hellum and Aasen, 2013, 625–39; Freeman, Chinkin, and Rudolf, 2012, 26–29).

4.  The Committee and Regional Human Rights Bodies

57  The formal and institutional links between the CEDAW and the regional human rights bodies are limited. Nevertheless, the specialized analyses and jurisprudence found in documents from the CEDAW Committee’s monitoring mechanisms have been used as sources of interpretation of the non-discrimination standards in the regional human rights treaties.

58  The European Court of Human Rights (ECtHR) has referred to statements stemming from the different mechanisms of the CEDAW Committee in a number of cases. A particularly illustrative case is Opuz v Turkey, 2009. In paras 72–77, the court refers not only to Article 2 CEDAW, but also to the CEDAW Committee’s COs to Turkey’s State report, to GR 19 on violence against women, and to individual communications concerning violence against women, specifically AT v Hungary and Yildirim v Austria. The ECtHR stated that in interpreting its own treaty text, it will ‘also look for any consensus and common values emerging from the practices of European States and specialised international instruments, such as the CEDAW’ (Opuz v Turkey, para 164).

59  The CEDAW Committee’s work has also been used in the argumentation of the African human rights system. In the ‘Guidelines for National Periodic Reports’ of the African Commission on Human and Peoples’ Rights (‘African Commission’), the African Commission refers to the CEDAW State reporting process and requires States to report to the African Commission on their implementation of the CEDAW (Guidelines for National Periodic Reports, 1989, part VII, paras 1–4).

60  The African Commission used GR 19 to shed light on State responsibility for acts of non-State actors in a case against Zimbabwe (Zimbabwe Human Rights NGO Forum v Zimbabwe, 2006, note 36). In a later case against Egypt, reference was made to GR 19 and to AT v Hungary as part of the argument that sexual abuse constitutes sex discrimination and is thus a violation of Article 18 (3) African Charter on Human and Peoples’ Rights (Egyptian Initiative for Personal Rights v Egypt, 2011, paras 88–89, 122–23).

61  The Inter-American Court of Human Rights (IACtHR) (‘Inter-American Court’) has stated that, in the context of women’s rights to humane treatment, it takes into consideration the CEDAW as it ‘complements the international corpus juris’ (Miguel Castro Castro Prison v Peru, 2006, para 276; González et al (‘Cotton Field’) v Mexico, 2009, para 225). References to GR 19 have also been made in several cases (Miguel Castro Castro Prison v Peru, para 303; Las Dos Erres’ Massacre v Guatemala, 2009, para 233).

62  The Cotton Field case is of particular interest. It concerned violence against women in Ciudad Juarez and, as documentation of the facts of the case (paras 113–332), the Inter-American Court made extensive use of the report from the CEDAW Committee’s inquiry procedure (Report on Mexico, 2005). The Cotton Field judgment also referred to GR 19 on violence against women (paras 254, 394–95) and GR 24 on women and health (para 408). When discussing the State’s obligations to prevent domestic violence, the judgment referred to AT v Hungary and Yildirim v Austria (para 255), and when calling for training of public officials, the Court prescribed that such training should include information about the CEDAW (para 542).

63  The Atala Riffo case (Atala Riffo and Daughters v Chile, 2012) concerned a woman who had lost custody of her children because of her sexual orientation. Here, the court referred to GR 27 and (the then draft) GR 28 to argue for inclusion of sexual orientation as a prohibited ground of discrimination (para 89). It also referred to GR 21 on the many variations of what might constitute a ‘family’ (para 172).

64  While the European Union (‘EU’) is not itself a party to the CEDAW, the principle of equal treatment of men and women and the right to protection against discrimination is part of the EU acquis. The preambles of relevant directives refer to the CEDAW as part of the basis for these ‘universal rights of all persons’, and emphasize that all EU members are signatories to the CEDAW (Directive 2000/78; Directive 2000/43).

E.  Concluding Remarks

65  Even though the CEDAW Committee’s COs, GRs, individual communications, and inquiry reports are not formally binding, the Committee’s jurisprudence exerts considerable influence on judicial and law-making bodies at the national, regional, and international level. The Committee has made innovative and interactive use of the different monitoring mechanisms to develop its jurisprudence in a range of fields.

66  The most remarkable development is how the Committee, in its pursuit of socio-legal transformation, addresses individual and structural elements of discrimination as an integrated whole. Accountability for gender discrimination has been extended to include both individual acts and more systematic violations of international equality and anti-discrimination law. An important step in this direction is found in the individual complaint procedure, where duties to provide individual remedies and to promote substantive equality go hand in hand. In the inquiry procedure reports, the Committee takes this approach one step further by emphasizing the way in which grave and systematic violations of equal rights are produced and upheld through interaction between different laws, institutions, policies, and public and private actors, as well as historical, economic, and cultural structures. This integrated analysis of individual and structural dimensions makes an important legal contribution on how to achieve substantive equality. To what extent this transformative jurisprudence will in practice result in greater gender justice remains to be seen.

Cited Bibliography

  • A Byrnes and E Bath, ‘Violence against Women, the Obligation of Due Diligence, and the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women—Recent Developments’ (2008) 8 HRLRev 517–33.

  • B Simmons, Mobilizing for Human Rights: International Law in Domestic Politics (CUP Cambridge 2009).

  • B Meyersfeld, Domestic Violence and International Law (Hart Oxford 2010).

  • A Byrnes, ‘Article 1’ in MA Freeman, C Chinkin, and B Rudolf (eds), The UN Convention on the Elimination of All Forms of Discrimination against Women: A Commentary (OUP Oxford 2012) 51–70.

  • C Chinkin, ‘Violence against Women’ in MA Freeman, C Chinkin, and B Rudolf (eds), The UN Convention on the Elimination of All Forms of Discrimination against Women: A Commentary (OUP Oxford 2012) 443–74.

  • C Chinkin and MA Freeman, ‘Introduction’ in MA Freeman, C Chinkin, and B Rudolf (eds), The UN Convention on the Elimination of All Forms of Discrimination against Women: A Commentary (OUP Oxford 2012) 1–33.

  • J Connors, ‘Optional Protocol’ in MA Freeman, C Chinkin, and B Rudolf (eds), The UN Convention on the Elimination of All Forms of Discrimination against Women: A Commentary (OUP Oxford 2012) 607–79.

  • C Flinterman, ‘CEDAW: A Full Human Rights Treaty Body’ in I Westendorp (ed), The Women’s Convention Turned 30 (Intersentia Cambridge 2012) 395–403.

  • MA Freeman, C Chinkin, and B Rudolf (eds), The UN Convention on the Elimination of All Forms of Discrimination against Women: A Commentary (OUP Oxford 2012).

  • S Jansen, ‘The Optional Protocol to the Women’s Convention: An Assessment of Its Effectiveness in Protecting Women’s Rights’ in I Westendorp (ed), The Women’s Convention Turned 30 (Intersentia Cambridge 2012) 435–52.

  • W Kälin, ‘Examination of State Reports’ in H Keller and G Ulfstein (eds), UN Human Rights Treaty Bodies: Law and Legitimacy (CUP Cambridge 2012) 16–72.

  • G Ulfstein, ‘Individual Complaints’ in H Keller and G Ulfstein (eds), UN Human Rights Treaty Bodies: Law and Legitimacy (CUP Cambridge 2012) 73–115.

  • HS Aasen, ‘Maternal Mortality and Women’s Right to Health’ in A Hellum and HS Aasen (eds), Women’s Human Rights: CEDAW in International, Regional and National Law (CUP Cambridge 2013) 292–320.

  • A Byrnes, ‘The Committee on the Elimination of Discrimination against Women’ in A Hellum and HS Aasen (eds) Women’s Human Rights: CEDAW in International, Regional and National Law (CUP Cambridge 2013) 27–61.

  • S Fredman, ‘The CEDAW in the UK’ in A Hellum and HS Aasen (eds), Women’s Human Rights: CEDAW in International, Regional and National Law (CUP Cambridge 2013) 511–30.

  • A Hellum and HS Aasen, ‘Conclusions’ in A Hellum and HS Aasen (eds), Women’s Human Rights: CEDAW in International, Regional and National Law (CUP Cambridge 2013) 625–55.

  • I Ikdahl, ‘Property and Security: Articulating Women’s Rights to Their Homes’ in A Hellum and HS Aasen (eds), Women’s Human Rights: CEDAW in International, Regional and National Law (CUP Cambridge 2013) 268–91.

  • M Mehra, ‘India’s CEDAW Story’ in A Hellum and HS Aasen (eds), Women’s Human Rights: CEDAW in International, Regional and National Law (CUP Cambridge 2013) 385–409.

  • F Van Leeuwen, ‘“Women’s Rights are Human Rights!”: The Practice of the United Nations Human Rights Committee and the Committee on Economic, Social and Cultural Rights’ in A Hellum and HS Aasen (eds), Women’s Human Rights: CEDAW in International, Regional and National Law (UP Cambridge 2013) 242–67.

  • M Campbell, ‘Women’s Rights and the Convention on the Elimination of All Forms of Discrimination Against Women: Unlocking the Potential of the Optional Protocol’ (2016) 34 Nordic Journal of Human Rights 247–71.

  • S Zwingel, Translating International Women’s Rights: The CEDAW Convention in Context (Palgrave Macmillan London 2016).

  • M Campbell, Women, Poverty, Equality: The Role of CEDAW (Hart Oxford 2018).

  • M Campbell, ‘Reimagining Accountability for Grave and Systemic Abuses of Human Rights’ University of Oxford Human Rights Hub Journal (forthcoming 2019).

Further Bibliography

  • I Boerefjin, ‘Article 17’ in MA Freeman, C Chinkin, and B Rudolf (eds), The UN Convention on the Elimination of All Forms of Discrimination against Women: A Commentary (OUP Oxford 2012) 475–87.

  • --- ‘Article 18’ in MA Freeman, C Chinkin, and B Rudolf (eds), The UN Convention on the Elimination of All Forms of Discrimination against Women: A Commentary (OUP Oxford 2012) 489–507.

  • --- ‘Article 19’ in MA Freeman, C Chinkin, and B Rudolf (eds), The UN Convention on the Elimination of All Forms of Discrimination against Women: A Commentary (OUP Oxford 2012) 509–12.

Cited Documents

Cited Cases