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Overview

Sarah Lou Y. Arriola
Amparita S. Sta. Maria
Historical Antecedents

The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), consisting of a Preamble and 30 Articles, was adopted in 1979 by the United Nations (UN) General Assembly and is often described as an international bill of rights of women. It defines what constitutes discrimination against women and sets up an agenda for national action to end such discrimination.6

CEDAW defines “discrimination against women” as “any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of women and men, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.”7

Articles 2-4 describe the nature of State obligations, in terms of law and policy, in order to eliminate discrimination. Article 5 describes the negative impact of sex roles, stereotyping and customary practices. Articles 6-16 specify the areas where discrimination must be eliminated, including: prostitution (Article 6), political and public life (Article 6), participation at the international level (Article 8), nationality (Article 9), education (Article 10), employment (Article 11), health care and family planning (Article 12), economic and social benefits (Article 13) rural women (Article 14), equality before the law (Article 15), and marriage and family relationship (Article 16). The remaining articles describe the establishment of a CEDAW Committee tasked with monitoring compliance to the treaty (Articles 17-22) scrutiny of state reports, issuance of General Recommendations, and the administrative aspects of the treaty (Articles 23-30).

By ratifying CEDAW, State Parties commit themselves to undertake a series of measures to end discrimination against women in all forms, including:

incorporating the principle of equality between women and men in their legal system, abolishing all discriminatory laws and adopting appropriate ones which prohibit discrimination against women;

establishing tribunals and other public institutions to ensure the effective protection of women against discrimination; and

ensuring the elimination of all acts of discrimination against women by persons, organizations or enterprises.8

CEDAW provides the basis for realizing equality between women and men by ensuring women’s equal access to, and equal opportunities in, political and public life—including the right to vote and to stand for election—as well as education, health, and employment. State Parties agree to take all appropriate measures, including legislation and temporary special measures, so that women can enjoy all their human rights and fundamental freedoms.9

Moreover, CEDAW is the only human rights treaty that affirms the reproductive rights of women and identifies culture and tradition as influential forces shaping gender roles and family relations. It also affirms women’s rights to acquire, change, or retain their nationality. State Parties also agree to take appropriate measures against all forms of traffic in women and exploitation of women.10

Countries that have ratified or acceded to the Convention are legally bound to put its provisions into practice. They are also committed to submit national reports, at least every four years, on measures they have taken to comply with their treaty obligations.11

Currently, 185 countries—over ninety percent of the members of the United Nations—are State Parties to CEDAW.12

The Optional Protocol (OP) of the CEDAW establishes both the Inquiry and Communications Procedures.

In Article 8 of the OP, an Inquiry Procedure is provided wherein the Committee, after receiving reliable information that there have been “grave or systematic violations by a State Party of rights established in the Convention,” shall invite said State Party to cooperate in the examination of the information and “to submit observations with regard to the information concerned.” (Article 8[1]) The Committee may designate one or more of its members to conduct an inquiry (which may include a visit to the State Party concerned with the latter’s consent) and report urgently to the Committee. (Article 8[2])

Under Article 2, an individual can file a communication (complaint) against a State Party to the OP claiming that it violated her right(s) under the CEDAW. By becoming a State Party to the CEDAW and the OP, a country recognizes the competence of the CEDAW Committee “to receive and consider communications under the protocol.” (Article 1)

Article 4 states the requirements for the admissibility of a communication:

all available domestic remedies have been exhausted unless the application of such remedies is unreasonably prolonged or unlikely to bring effective relief;

the communication has not been, or is not being, examined by the Committee or in another procedure of international investigation or settlement;

it is not incompatible with the provisions of the Convention;

it is not manifestly ill-founded or not sufficiently substantiated; and

it is not an abuse of the right to submit a communication.

The Committee may, before deciding on the communication, request the State Party to take interim measures to avoid possible irreparable damage to the applicant. (Article 5)

If the communication is admitted, the Committee shall, confidentially, bring it to the attention of the State Party. Within six months, the receiving State Party shall submit to the Committee written explanations, clarifications and any remedy that it may have extended. (Article 6)

After examining the communication, the Committee shall transmit its views and give recommendations, if there are any warranted. (Article 7[3])

It is important to note that a finding of the Committee that a violation of the CEDAW was committed by a State Party, based on a case decided by the domestic courts (e.g., acquittal in a rape case or dismissal of cases involving violence against women) does not have the effect of reversing such final decisions. The Committee does not function as a court of last resort or an appeals court. Its function is to evaluate whether or not the State Party violated its obligations under the CEDAW, based on the communication filed under the OP.

6 http://www.un.org/womenwatch/daw/cedaw/, last accessed, 28 January 2008.

7 Article 1, Convention on the Elimination of all Forms of Discrimination against Women (1979).

8 Article 2, Convention on the Elimination of all Forms of Discrimination against Women (1979).

9 http://www.un.org/womenwatch/daw/cedaw/, last accessed, 28 January 2008.

10 Id.

11 Id.

12 http://www.un.org/womenwatch/daw/cedaw/states.htm, last accessed, 26 January 2008.