Convention
on the Elimination of All Forms of
Discrimination against Women
Twenty-fifth
anniversary of its adoption by the
General Assembly of the United Nations
“CEDAW AT 25: ARE WE MOVING FORWARD”
13
October 2004, 3:00 to 6:00 pm
United Nations Headquarters, New York
‘Impact of the Convention at the Domestic Level’
by Shanthi Dairiam
Executive Director, IWRAW Asia Pacific
Madam Chair, respected members of the panel, distinguished delegates
and friends,
I wish to
thank the Division for the Advancement of Women for giving me
the honour to speak on the experiences and perspectives of my
organization, IWRAW, at this historical occasion celebrating the
25th anniversary of the CEDAW Convention at the United Nations
Head Quarters in New York. IWRAW Asia Pacific, a not for profit
organization, was established in Kuala Lumpur, Malaysia to promote
and facilitate the implementation of the Convention nationally,
regionally and internationally.
Why work with treaties
Why did we
decide to take such a singular focus for our programme, that is
to work exclusively on the Convention. Our decision was informed
by a keen awareness that in spite of decades of interventions
for women through the UN system, complemented by corresponding
initiatives at the national levels, the rights of women continue
to be violated in all fields and we are nowhere near closing the
gap between women and men in terms of achievement and well being.
We realised that we needed to address the persistent nature of
inequality. It is here that the Convention’s guarantee of
equality and freedom from discrimination which may occur in the
private and public sphere, both direct and indirect, intentionally
and unintentionally, provides a theoretical framework by which
to identify barriers to women’s advancement, assess needs,
set goals, identify measures for action and assess accomplishments.
The Convention
is a human rights treaty and hence carries with it the strength
of a treaty which I elaborate as follows:
(i) The treaties
create obligations that are legally binding on states. These obligations
include:
All of this
makes the treaties living and dynamic instruments through which
the scope and content of the human rights can evolve and progress
according to the jurisprudence established by the treaty body
concerned.
The
specific strengths of the CEDAW Convention
Apart from
possessing the strength of a human rights treaty, the CEDAW Convention
has specific significance. It focuses on discrimination against
women and makes us go beyond conventional approaches and forces
us to unravel the pernicious, structural and dynamic process of
discrimination that underpins the various manifestations of inequality.
Because several institutions such as the family, the market, the
community and the State interact and reinforce this pernicious
web of discrimination, it facilitates a denial of responsibility
and justifies a state of helplessness by each of these institutions
when it comes to undertaking the elimination of discrimination.
The excuse is that each institution has done its work and the
problem is elsewhere.
Because it
is a treaty, the CEDAW Convention demands the practical realisation
of rights and hence compels States Parties to eliminate all forms
of discrimination, intended or unintended through law, policy,
practice or custom and by state or non-state institutions or private
persons, even if they are family members and to approach the problem
holistically and collectively.
Using
the CEDAW Convention
But the Convention
does not automatically confer rights on women. Its promise can
only be delivered if we learn to use it effectively in practice,
thereby contributing to a jurisprudence of the Convention. This
is the mission that IWRAW Asia Pacific has undertaken, that is
to facilitate and build capacity of various institutions (both
government and private) to enable their actions to fulfil the
promise of the Convention. In particular through our work we have
worked collaboratively with women’s groups so that they
could form constructive partnerships with their governments to
eliminate discrimination against women.
Much cynicism
about the Convention exists, especially as in many countries;
the principles of the Convention have not been incorporated into
domestic legislation. But there are many examples of the use of
the Convention in spite of this. Constitutions and domestic laws
have been reformed on the basis of the principles of the Convention,
discriminatory laws have been challenged, the Convention has been
used to interpret ambivalent provisions of the law or it has been
used where the law is silent to confer rights on women and development
policies have been formulated using the framework of the Convention.
I wish in
particular to highlight a programme that IWRAW Asia Pacific has
implemented to bring the benefits of this Convention home by improving
the flow of information from the international level of legal
standards to the local level, (including monitoring and facilitating
the implementation of the treaty locally).
First of all
this programme called “ From Global to Local”, recognises
that to fully enable the provisions of the treaty to be realised,
it is important to enhance the process of reporting. Strengthening
the synergy between the national and international processes relating
to CEDAW implementation can do this. Consistent and systematic
interaction between women’s groups and the Committee is
therefore necessary. The CEDAW Committee requires accurate information
on the de jure and de facto situation of women on the ground in
order to make recommendations that are useful to the State. Towards
this end, women’s groups can provide alternative information
to the Committee and thereby, influence the standard-setting process.
Women’s groups reports on State action may also help to
reveal why women’s rights commitments often remain de jure
commitments rather than representing de facto change. It enables
groups to identify areas for intervention where the State may
not be able to intervene effectively, and where NGOs may provide
support services to create enabling conditions for women’s
rights to be achieved.
On the other
hand, at the national level, women’s groups advocating for
equality have a powerful tool in CEDAW if they can learn to harness
it for domestic application. The Committee’s Concluding
Comments are also useful in setting priorities for advocacy, based
on what it identifies as areas of concern. This provides the basis
for a collaborative process to be set up between governments and
non-governmental organisations nationally for CEDAW implementation.
There needs to be therefore Government and NGO dialogue on CEDAW
implementation. This GO-NGO dialogue is important as it shows
a conscious effort to pursue the Committee's recommendations as
well as the building of a GO-NGO constituency on CEDAW Concluding
Comments.
In view of
this, IWRAW Asia initiated the programme “From Global to
Local” in 1997 that builds capacity of women’s groups
from the countries reporting to the CEDAW Committee annually to
enable them to contribute to this review process with the intention
of enhancing the implementation of the obligations under CEDAW
nationally.
This is a
programme, which has been conducted by IWRAW and UNIFEM collaboratively,
with cooperation form the Division for the Advancement of Women.
As of 2004, agencies such as UNFPA have supported this effort.
Through this programme women from at least 100 countries have
been participating in the CEDAW review process since 1997.
Examples
of CEDAW implementation
I will conclude
with a few examples of the impact of the CEDAW Convention in some
countries. These examples are not cited on the basis of a comprehensive
review but are selective. Examples include those that are from
countries that have yet to be reviewed by the Committee. Never
the less they are examples of the good intentions of States parties
to fulfil their obligations. The examples also reflect the collaborative
efforts of government, NGOs and UN specialised agencies.
In Nepal,
in 2002 the eleventh amendment to the country code brought to
an end more than 20 discriminatory provision in the law. Significant
among these were the discriminatory provisions in inheritance
laws, adoption, divorce, criminal laws etc.
In the absence
of a law on sexual harassment, the principles of equality and
non-discrimination of the Convention were used by the Supreme
Court in India to develop guidelines for employers to prevent
and address sexual harassment in the work place. An ambiguous
phrase in the Hindu Guardianship Act in India was re-interpreted
to favour women as guardians. Since its last report to the Committee
the government of India has repealed discriminatory provisions
in many areas of the law. These include amendments to the Marriage
Act, and The Indian Divorce Act. Efforts are being made for the
compulsory registration of marriage. Several state level and national
policies for poverty eradication, the promotion of nutrition and
the promotion of education of children are being enhanced.
In Sri Lanka,
after the CEDAW review, the government and the NGOs held a consultation
on every paragraph of the Concluding Comments discussing plans
for implementing the recommendations of the Committee and NGOS
offered their expertise and resources in pursuing the plan of
action.
In South Asia,
an important positive development has also been the amendments
to citizenship laws eliminating the discriminatory provisions
inherited during colonial rule.
In South Asia,
a dialogue between governments and NGOs for the implementation
of the Concluding Comments has taken place with support from UNIFEM.
In Mongolia, the UNDP plans to assist the government to implement
legal reform to eliminate discrimination against women- a direct
recommendation of the CEDAW Committee to the government of Mongolia;
a domestic violence law has been adopted
In Japan,
the Osaka Appeals Court instructed that the appellants (all women)
and the respondent in a labour case, reach an amicable settlement
based on the principles of equality and non- discrimination and
gave specific recommendations with regard to the same The court
in its statement pointed out that national action must concur
with international efforts towards the elimination of sex discrimination.
The appellants had made specific reference to CEDAW’s Concluding
Comments to Japan which pointed out the flaw in the guidelines
in Japan’s Equal Employment Opportunity Law as lacking an
understanding of indirect discrimination.
In Malaysia,
the Constitution was amended to include gender as prohibited grounds
for discrimination and amendments were made to abolish discrimination
in the Distribution Act and Guardianship Act. This year the government
has announced its policy to ensure 30% of women in senior decision-making
positions.
In Thailand,
the constitution court found that forcing women to change their
name after marriage was unconstitutional and violated the principle
of equality.
In Morocco,
women’s groups successfully advocated for amendments to
remove discrimination in the Penal Code, Labour Law and Family
Law, supported by UNIFEM. This again had been a recommendation
in the Concluding Comments of the CEDAW Committee.
In Kyrgystan,
recent amendments to the laws on land rights guarantee equality
for women. This was also the result of advocacy and a collaborative
effort between women’s groups and the government supported
by UNIFEM.
Continuing
challenges
Problems still
remain in many aspects. First of all, there remain a lack of understanding
of and a resistance to the principle of equality. There also remains
a lack of understanding of indirect discrimination. Such a definition
does not exist in the law in most countries, so courts remain
uninformed of the standards for equality and non-discrimination
set by the CEDAW Convention. Women have to be more vigilant about
their rights and activate the courts in this regard. Custom and
culture often over ride considerations of state obligation under
CEDAW. As the Appeals court of Japan cited above stated, “It
must be borne in mind, that to tolerate the vestiges of discrimination
based on past social understandings would result in turning ones
back to the progress in the society.” This is a point of
view that needs to gain more currency. CEDAW remains unincorporated
into domestic law so the full potential for the application of
CEDAW is not attained at the national level. Global economic trends
such as privatisation also pose threats for the fulfilments of
state obligation in the fields of economic and social rights.
Nor is there a concerted effort to put in place a plan for CEDAW
implementation. Many of the reforms cited above are done in a
piece meal fashion.
All our governments
are committed in principle to equality for women through the constitution
and through various laws and policies. But it is the Convention
that forces us to close the gap between law policy and reality.
This is treaty that has attained 178 ratifications so has a universal
recognition and mandate for equality. Congratulating new members
of the CEDAW Committee, elected in August 2004, Mr Effah-Appenteng,
chair person of the States Parties meeting., said that “The
Convention had established the guidelines critical for the advancement
of women and enjoyment of their fundamental human rights. But,
25 years after its adoption, discrimination against women was
still rife, as they continue to suffer avoidable challenges by
virtue of their gender”. Hence States Parties, UN agencies,
other international bodies, donors and NGOs need to pay greater
attention to its implementation and to the work of the CEDAW Committee
and to integrate all other work towards the advancement of women,
including the implementation of Plans of Action of World Conferences,
into the framework of CEDAW’s normative standards for equality.
Thank you. Madam Chair
