The
Legal Impact of Recommendations
The recommendations
of the CEDAW Committee will in essence form jurisprudence i.e.
a body of case law that can be used by the committee and others
in interpreting the provisions of the CEDAW Convention and clarifying
State obligations. Given that the CEDAW Convention and the OP-CEDAW
comprise the sole gender-specific international complaints mechanism,
this is of the utmost importance both for the legal development
of women's rights at the international level, and for the progressive
interpretation and enactment of discrimination law at the national
level.
As more
cases of violations of women's human rights are brought before
the CEDAW Committee for their consideration, more precise definitions
of what constitutes a violation of a right enshrined in the
CEDAW Convention will emerge. Further, given that violations
may be based on one or more of the rights enshrined in the CEDAW
Convention, it may be assumed that as cases are brought, recommendations
will touch on many, if not all areas, of this convention. Therefore,
although most States will have provisions, either constitutional
or legislative, which prohibit discrimination on the basis of
sex, the concept of discrimination, how it should be recognised
and interpreted and how it might be remedied will be investigated
and documented. This documentation will in turn be vital in
influencing the enactment, execution and interpretation of laws
within States parties.
Jurisprudence
from the CEDAW Committee can be employed by advocates in national
cases. Such uses might include:
" Assisting in and influencing the interpretation of constitutional
or statutory provisions in accordance with the spirit of the
CEDAW Convention. Through this any ambiguities in national law
can be resolved in a way which complements and does not conflict
with the provisions of the CEDAW Convention; and
" Providing legal precedents, i.e. established case law,
around the provisions of the CEDAW Convention amounting to indicators
as to how cases of a similar nature should be resolved. Such
precedents, employed in legal arguments, can prove invaluable
in convincing a court of the correct and just interpretation
of what constitutes a violation of women's human rights and
how those violations might be appropriately remedied.
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for Relevant Case Law
