31st CEDAW Session

Day of General Discussion on the
Proposed General Recommendation on Article 2 of the Convention on the Elimination of All Forms of Discrimination against Women

July 21, 2004

Background Paper

International Women’s Rights Action Watch[1]

Introduction

1. Article 2 is a core article of the Convention on the Elimination of All Forms of Discrimination Against Women (the Convention.) It enumerates obligations of the State that should form the framework for the implementation of all the other articles of the Convention. A general recommendation article 2 is therefore timely and much needed.

2. The General Recommendation needs to give guidance to States parties on a range of aspects that encompass theoretical and conceptual clarity with regard to intention and spirit of the Convention, as well as to practical measures that will enable fulfilment of state obligation.

Obligations under the Convention are legally binding

3. The General Recommendation must emphasise that an international human rights treaty creates obligations on states parties to the treaty that are binding. According to article 26 of the Vienna Convention on the Law of Treaties (1969)[2] States are obliged to implement the provisions of the treaty according to its spirit.

4. The obligations under the Convention and under article 2 in particular do not recognise internal law as an excuse for non-compliance. The Vienna Convention on the Law on Treaties (article 27) supports this assertion as it states that the State party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. It should be emphasised that in cases of inconsistencies between the national laws and CEDAW, ratification of the Convention entails that the State party is obligated to address those inconsistencies and ensure that laws are made consistent to the treaty. Where there is no law to incorporate CEDAW, the State party has the obligation to enact such legislation giving effect to the treaty in the domestic legal framework.

Who is the State party?

5. This is another important aspect that needs clarification. This question basically means who within the country is responsible for implementing the Convention. Often the National Machineries for Women are seen as having the primary responsibility. This approach is not useful. The obligations under CEDAW and article 2 in particular are binding on all organs of the State party. It encompasses executive, legislative and judicial organs as well as every constituent unit of the State. All organs of the State must work towards the fulfilment of its obligations. In terms of accountability, the State party is liable for conduct consisting of an act or omission by any organ of governments, even in cases of federalism, separation of powers, decentralisation, and existence of autonomous regions. Article 27 of the Vienna Convention on the Law of Treaties states that a State party cannot invoke internal divisions of power a defense for non-compliance with treaty law.

6. Secondly, the obligation under the Convention is an obligation of the State. Although it may work with specialised agencies, non-governmental organisations, consultants, experts and others, the primary and sole responsibility for implementing the Convention belongs to the State party. Hence, though inputs, cooperation and collaboration may be obtained or even be required for the implementation of CEDAW from various non sate actors, the State has to be the key player, initiating, managing and taking responsibility for such inputs.

7. Sometimes there is ambiguity in the minds of both governments and NGOs, about the role of the State and the role of NGOs. The general recommendation should provide clarity on this matter.

Need for conceptual clarity in framing elements of state obligation

Substantive (not merely formal) equality

8. The General Recommendation needs to clarify that by demanding the practical realisation of rights, CEDAW promotes the substantive model of equality, which includes equality of opportunity, equality of access to opportunity, and equality of result or outcome. Understanding the concept of equality of access is critical because this is where discrimination normally occurs. This also obligates an acknowledgement that opportunity presented through formal equality, manifests itself in a gender-neutral framing of policy or law that may actually discriminate against women, even though discrimination was not intended. Opportunity is, by and large, created but there may be an impediment to availing it. This also constitutes discrimination.

Protectionism is not equality

9. There are several institutions and organisations in each government, each with their own interpretation of equality and they may tend to take a protectionist approach. They curtail freedoms of women in the name of protecting them from harm. The prohibition of night work is one example of this approach and another example is a decision by some countries prohibiting women from going abroad to work, justified as an attempt to protect them from being trafficked. Protectionist approaches are inherently limiting in that they do not challenge gender-based discrimination and the reasons why women are at risk. Rather, these approaches reproduce discrimination in the garb of protecting women. It reproduces old myths that women are less safe at night or that violence against women only happens at night, and it frees the State from carrying out the obligation to secure the environment. It can be seen from many of the reports of States Parties that they confuse equality with protectionist approaches. Specifically the General Recommendation must provide guidance on the meaning of equality as intended on the Convention.

Rights are universal, interdependent and indivisible

10. The Convention demands that all interrelated factors that can have a causal link to the denial of women’s rights, be they ideological, material or institutional, be identified and eradicated. Equality is universal and all women must be able to exercise the right to equality within the same country. Sometimes when there are different legal systems within a country all women may not enjoy the same rights. The General Recommendation must explicitly state that this is not acceptable.

11. In eliminating discrimination in all its forms, the State party must address discrimination in the political, economic, social, cultural, civil and any other field, as mentioned in article 1. This reaffirms the indivisibility, interrelatedness and interdependence of human rights. Hence women must not be discriminated in the enjoyment and exercise of all human rights, regardless of whether such rights are named in the Convention or not, e.g. right to life, right to physical and mental integrity, right to the highest attainable standard of health, etc.

Meaning of discrimination

12. Article 2 mandates the elimination of discrimination “in all its forms”. This undertaking requires a clear understanding of discrimination from the State party. Article 1 of the Convention, especially in the use of the phrase “effect or purpose”, manifestly mandates that both direct and indirect discrimination should be eliminated. Gender-neutral laws and policies must be subject of reform if they result in discrimination against women.

Rights for all women

13. The Convention applies to all women. It is not limited to citizens of the State party but is also available to all women regardless of nationality, such as refugee women, women migrants, women asylum-seekers and other persons, who are within the jurisdiction or effective control of the State party. The Convention also applies to different groups of women, whether or not they are explicitly mentioned in the Convention, for example, indigenous women, women prisoners, minority women, displaced women, homeless women, etc. Clarity must also be provided on this aspect.

Specific components of State obligation that could be elaborated in the General Recommendation

Obligation of means and results

14. In ratifying CEDAW, the State party undertakes an obligation of means and an obligation of results. On the obligation of means, the State party is obligated to take specific and tangible measures enlisted in Article 2. The State’s obligation however does not stop with the establishment or adoption of the measures or means. The State must also ensure that the means chosen must actually result in substantive equality. It must therefore ensure the obligation of results. This two-folded obligation is therefore a guarantee not just of rights in principle, but also of their practical realisation. Very often States interpret their obligation to just putting in place certain measures such as law or policy.

15. Therefore the measure of a State’s action to secure the human rights of women and the indicators of state progress in this regard, lie not in just what the state does, i.e. build schools, but more importantly in what the state achieves, i.e. the level of progress in the education of girls. This implies obligation of the State to monitor its own actions and take further action if necessary to ensure results. Hence laws and policies must come into operation and women must be able to exercise and enjoy their rights. The State has a duty to ensure enforcement and effective implementation of all laws, policies, programmes and services.

Positive and negative obligations

16. The State party is required to fulfil both positive and negative obligations. It is required to refrain from engaging in acts or practices of discrimination (negative obligation) or to adopt measures to achieve de facto equality (positive obligation). As both obligations exist, a State party can be held liable for both acts and omissions.

17. The acknowledgment that discrimination has to be eliminated is based on the understanding that discrimination is socially constructed and that it is not an essential or natural principle of human interaction. This recognises the need for and paves the way for concerted action against inequality and the institutional mechanisms, which perpetuate it. It also paves the way for proactive positive measures. So it is not just enough to prohibit discriminatory practices. Rather, we must focus on what could be the enabling issues, so as to put in place a positive responsibility on the state as well.

Accelerating de facto equality: the need for temporary special measures

18. Article 1 also prohibits both de jure and de facto discrimination. The State must be able to recognise the structural, institutional and historical aspects of discrimination and ensure that measures implemented takes into account these considerations. Although at a given moment of time there may be no policy of discrimination, the existence of conditions of eligibility that women cannot fulfil (for no fault of their own, because of past discrimination) and which privilege men have the effect of discriminating against women. The State is obligated to put in place some form of temporary special measures to help correct the effects of past discrimination. Courts in various jurisdictions are now more ready than before to strike down policies that are overtly discriminatory. But they are still reluctant to develop jurisprudence in favour of positive obligation. The courts need to move in this direction.

The importance of an intersectional approach

19. The obligation to condemn discrimination in all its forms must take into account the different groups of women and their specific experiences of discrimination. The State party must ensure that measures are enacted that focuses on women in disadvantaged groups, such as women migrant workers, refugee women, women in indigenous communities, women minorities and rural women. The intersection of discrimination experienced by women in addition to gender discrimination, that is, discrimination on account of their race, ethnic, religious and national identity, caste, class, age, disability, among others, must be recognised and measures must be enacted to eliminate such intersectional forms of discrimination.

All appropriate measures

20.The State party agrees to pursue by “all appropriate means” a policy of eliminating discrimination against women. The State in identifying and implementing measures must guarantee that such are appropriate. The burden of proving the appropriateness of each State intervention rests upon the State. States parties must therefore indicate not only the measures taken but also the basis on which such measures were considered appropriate and how such measures will lead to equality.

Without delay

21. Article 2 also requires the State party to eliminate discrimination “without delay”. This highlights the immediate nature of the obligations under the Convention. The State party in complying with their obligations under the Convention must have specific time frames and goals. The lack of resources or the low level of development is not an excuse to delay compliance with the obligation under the Convention. Failure to comply cannot also be justified by reference to political, economic, social or cultural considerations, including natural calamities, transition in government, changes in the political structure of governance, imposition of sanctions, among others. The State party must ensure that women are not discriminated due to these difficult situations. It is important for the State to monitor and address the impact of these situations on women, especially those belonging to disadvantaged groups.

Obligation to respect, protect and fulfil rights: Specific elements of article 2

22. The obligations listed in Article 2 highlights the main obligations of the State party to respect, protect and fulfil rights. The obligation to respect requires a State party to refrain from interfering with the enjoyment of rights. For example, the State should repeal laws, which discriminate against women, such as providing that men are the sole guardians of the children, women cannot own or inherit property, women cannot transmit nationality to her husband or children, etc. In line with the obligation to respect, the State party should also modify its discriminatory policies and practices. Articles (d) and 2(g) is particularly reflective of this obligation.

23. The obligation to protect requires a State party to prevent violations of such rights by third parties. This is reflected in particular in articles 2(b), 2(c) and 2(e). Thus, for example, failure to enact laws on violence against women is a violation of the obligation to protect. Also, failure to provide the regulatory framework to penalise and redress discrimination by private actors, such as employers, health professionals, school officials, is a violation of the State party’s obligation.

24. This obligation requires the State to exercise due diligence in monitoring and regulating the conduct of private actors to ensure that they abide by the guarantees of the Convention. The duty of due diligence entails the State to (i) prevent acts of discrimination; (ii) investigate acts of discrimination; (iii) provide for remedies, redress, compensation or sanctions for the performance or non-performance of the acts; and (iv) negate the consequences of the acts and ensure non-repetition of such acts.

25. In cases where the violations by private actors is of a gross, pervasive or persistent character and there is State inaction to prevent, investigate or provide redress, such State tolerance of the violation can lead to State accountability for its failure to exercise due diligence. If the State justifies these actions or excuses them, this will implicate the State as being complicit in the violations or in condoning them.

26. The obligation to fulfil requires a State party to take appropriate measures, including legislative, administrative, budgetary, judicial and all other measures, towards the full realisation of women’s equality. The obligation to fulfil mandates that the State party must provide enabling conditions to ensure the full development and advancement of women. Under this obligation, the State party is obligated to remove impediments to women’s equality based on discriminatory cultural and traditional practices. It means building women’s capacity to take advantage of the opportunities provided by laws, policies and programmes. This also includes the obligation to promote the human rights of women as well as to change behavior, attitudes and stereotypes. The obligation to fulfil is particularly evident in articles 2(a) and 2(f).

The legal framework

27. The legal framework to make the Convention applicable at the domestic level is critical. The obligation under article 2(a) requires a Constitutional guarantee of equality in accordance with the standard of equality set by the Convention i.e. substantive equality. In addition, laws and judgments that give effect to the constitutional guarantee of equality must ensure that a definition and interpretation of discrimination is in accordance with article 1 of the Convention. The courts and parliament must take into account of the obligations of the State under the Convention.

28. The State party is bound to ensure that the laws and practices of the country are harmonised with the principle of substantive equality. It is imperative that the Convention be incorporated in the domestic legal framework of the State. If this requires enacting enabling legislation to incorporate the Convention into national law, the State is obligated to do so. This is vital to ensure the ‘practical realisation” of the principle of substantive equality. Although no prescribed means are given in the manner of incorporation, the State is obligated to ensure that the rights guaranteed under the Convention are accessible to women in the country and that remedies for violations are available. This may include direct invocation of the rights guaranteed in the Convention in courts. The enactment of an equality law that incorporates all elements of the Convention may also be the means by which the Convention is made applicable at the domestic level.

Mechanisms and institutional arrangements

29. The State party must establish mechanisms to monitor compliance with the Convention in all its aspects (article 2c). It must also ensure that mechanisms are in place to investigate, redress and prevent violations of the human rights of women. The establishment of institutions with special focus on discrimination against women, such as an anti-sex discrimination commission, an equality commission or equality ombudspersons through which women can access and obtain redress for violations by both State and non-state actors is important in complying with State obligation.

International agreements and aid

30. In its international relations, the State party must ensure that it refrains from entering into any discriminatory agreements, understandings or practices. It must ensure that it continuously monitors and address the impact of international agreements, particularly trade and finance agreements, on women. Developed countries have a particular obligation in this regard to provide aid to the less developed countries for fulfilling treaty obligations.

Eliminating negative customs and practices

31. Many forms of discrimination are linked to customs and practices, including practices of culture and religion. It is an obligation under the Convention to modify not only laws and regulations but also customs and practices, which constitute discrimination against women. (article 2f) Failure to change discriminatory customs and practices is a breach of the Convention. The State party must initiate and continue to implement measures to change perceptions and stereotypes of women as being inferior to men. These measures include enacting temporary special measures for women to correct past and current discrimination brought about by discriminatory customs and practices and to accelerate de facto equality.

32. The role of discriminatory customs and practices in the family is of particular concern. It has restricted the exercise of women of their basic human rights not only within family relations but also in the public sphere. The State party must take into account at all times, the fact that customs permeate into State and private institutions and therefore measures to change perceptions, stereotypes and attitudes must extend to them.

Special attention to special circumstances

33. The State needs to be attentive to special circumstances such as armed conflict, civil riots, natural disasters, economic crisis etc. It is recommended that the Committee devote a section to such circumstance.

Institutional arrangements for implementing the Convention and the need for a plan of action

34. It is essential that at the level of the bureaucracy, an inter-ministerial institutional arrangement to implement, monitor and evaluate progress in the implementation of the Convention is made. The role and responsibility of this institutional mechanism as well as the role and responsibility and mandate and authority of the national machinery for women must be clearly designated.

35. A well-defined plan of action for the implementation of the Convention and the Concluding Comments, with indicators, benchmarks and timelines, must be adopted by the State. Adequate resources human and financial must also be allocated for the implementation of the plan

Training and awareness raising

36. The State is responsible for educating and building capacity of all State organs, the executive, legislature and the judiciary, for the implementation of the Convention. It must all take responsibility for raising awareness of society at large with regard to the rights of women under the Convention. The text of the Convention and the Concluding Comments must be translated into the local languages and widely disseminated.

Data requirements

37. A section also needs to be devoted to the kinds of data that needs to be collected for the effective implementation of the plan. This will include data that establishes de facto situation of women

Obstacles to the fulfilment of State obligation raised By States Parties that are not acceptable

38. The State often pleads helplessness in fulfilling its obligation. Such stated obstacles should be identified and the General Recommendation should integrate sections that will address such obstacles. This paper has attempted to do this to some extent. A more comprehensive approach may be needed.

Reporting obligations

39. A section needs to be devoted to reporting obligations that also spells out the rationale for and purpose of reporting.

Obligation to facilitate NGO activism

40. The role of NGOs in ensuring accountability and transparency of State action is critical. The General Recommendation must spell out the responsibility of the State, such as the facilitation of democratic space, to create an environment where NGO activism can take place freely.

Reservations to this article are not permissible

41. The General Recommendation must also emphasise that given the overarching nature of this article and as it forms a framework for the implementation of all other article of the convention, reservations to this article undermine the object and purpose of the Convention and therefore not permissible.

REFERENCES

1. “Principles of State Obligation”. Building Capacity for Change: Training Manual on the Convention on the Elimination of All Forms of Discrimination against Women. IWRAW Asia Pacific. 2001.

2. “Obligations of the State under CEDAW and Other International Instruments on the Right to Decide If, When and Whom to Marry”. Rea A. Chiongson. Paper presented at the National Consultation on Women’s Right to Choose If, When and Whom to marry. March 22-24, 2003, Lucknow, India. Organised by AALI, IWRAW Asia Pacific and Interights.

3. Maastricht Guidelines on Violations of Economic, Social and Cultural Rights. Maastricht, January 22-26, 1997.

4. “State Accountability under the Convention on the Elimination of All Forms of Discrimination Against Women”. Human Rights of Women: National and International Perspectives. Rebecca Cook. 1994.

5. Vienna Convention on the Law of Treaties.

6. General comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant. Human Rights Committee. 2004.

7. General Comment No. 3: The Nature of States Parties’ Obligations (Art. 2, Par. 1 of the Covenant). Economic, Social and Cultural Rights Committee. 1990.

8. Consultation on Art. 2 during the Global to Local Orientation. Organised by IWRAW Asia Pacific and UNIFEM New York. July 10, 2004. New York, New York.

Notes
[1] The International Women’s Rights Action Watch has special consultative status with ECOSOC. It works regionally in 14 countries of Asia and the Pacific and internationally, to facilitate, build capacity for and to monitor the implementation of the Convention on the Elimination of All Forms of Discrimination against Women.
[2] The principles of The Vienna Convention on the Law of Treaties (1969) reflect international customary law. It constitutes a basic framework for the nature and characteristics of treaties. Provisions of this Convention pertaining to interpretation, material breach and fundamental change of circumstances are considered as international customary law and are not disputed.

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