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).
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).
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
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.
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.