Adopted in 1979 by the General Assembly of the United Nations, the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) – the most far-reaching international commitment of governments working for gender equality – was the first international human-rights instrument to explicitly define all forms of discrimination against women as fundamental human-rights violations. As of April 2005, 180 states have ratified CEDAW, interpreting their treaty obligations in diverse ways ranging from reluctance to active incorporation.
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The birth of a Convention
Created after World War II, the UN provided the first international public space for debate on the advancement of women. While the Commission on the Status of Women was established in 1946, the ‘women question’ only started gaining momentum in the 1960s. A rather formal debate on the legal status of women turned into an ambitious approach calling for the transformation of the socio-economic foundations of societies and the abolition of discrimination.
The emergence of women’s movements all over the world increased gender-awareness throughout the 1970s. 1975 was International Women’s Year, and saw the start of the UN Decade for Women. However, women's concerns remained detached from an evolving international human rights framework. Most human rights violations specifically affecting women were not recognised as such, but as somewhat less problematic cultural or traditional patterns.
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CEDAW was the first international instrument to tackle this gender-blindness. When it was adopted after a lengthy intergovernmental drafting process in 1979, it was by no means welcomed by all UN member states. The most significant tension was between religious and secular concepts of the role of women in society, the former conceiving women's rights as embedded in women's functions in family and society, while the latter emphasised women's autonomy and individuality. The most heated debate of the drafting process, not surprisingly, arose around the equal rights of men and women within marriage and the family.
While the final text grants equal rights, some delegations defended complementary roles for men and women, and criticised the Convention as biased. The Moroccan delegate to the General Assembly, for example, expressed regret ‘that delegations failed to understand how vital it is that this Convention strike a fair balance among all existing legal systems. Extremism will never lead to the desired results.’
Nevertheless, Article 1 defines ‘discrimination against women’ in broad terms, mentioning direct and indirect discrimination and extending it to all spheres of life including the private sphere. The Convention then elaborates the measures states must take to eliminate discrimination against women, encouraging temporary special measures to accelerate de facto equality.
CEDAW calls for the equality of men and women in public and political life, before the law and with respect to nationality rights, in education, employment, the provision of health care (including access to family planning services), and in marriage and family matters. It explicitly urges states to suppress the exploitation of prostitution as well as trafficking in women, and to improve the situation of rural women as a particularly disadvantaged group. Article 5 calls for the modification of stereotypical cultural attitudes based on ‘the idea of the inferiority or superiority of either of the sexes’, and thus points to a change in gender relations that implicitly touches upon the status of men.
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States that ratify the treaty are obliged to implement CEDAW’s principles in their domestic context. Upon ratification, they are allowed to enter “reservations” to single provisions of the treaty, as long as these are not incompatible with the Convention’s object and purpose. A global monitoring mechanism requires states to report every four years on their progress and enter into a ‘constructive dialogue’ with the CEDAW committee – twenty-three experts of ‘high moral standing’ representing the world regions. In a nutshell, the Convention is an ambitious instrument with regard to content, while being non-coercive in its enforcement mechanisms.
It owes its progressive tone to coalitions formed by female advocates of women's rights from different governmental delegations and from within the UN. These coalitions were hardly representative of the world's women: they were proponents of the middle class and of a secular concept of women as the individual subjects of rights – delegates from the then socialist states laying specific emphasis on the importance of women's rights in the socio-economic sphere. Moreover, as governmental delegates, they had to represent the interests of their governments.
When negotiations were passed on to the UN’s General Assembly, many female delegates were replaced by diplomats who did not have any particular interest in gender issues. It was this strengthening of governmental interests in the final stage that produced the weak enforcement mechanisms. In short, the Convention was shaped both by a secular feminist understanding of gender equality, including western and socialist values, and by member-states determined to minimise any constraint on their national sovereignty.
The work begins
As the ‘poor cousin of the human rights treaty bodies’, the work of CEDAW began under extremely difficult conditions in the early 1980s, with a restricted meeting time of two weeks per year and scarce resources, reflecting international ignorance of – if not resistance to – women's rights. But after persistent lobbying, working conditions improved considerably by the mid 1990s. This transformed the committee’s dialogue with state delegations into a critical in-depth-analysis, systematically including independent information beyond the reports of the member-states, especially those provided by NGOs and UN specialised agencies.
The steady increase over 20 years in the CEDAW committee’s global profile and authority culminated in 2000 in the adoption of an Optional Protocol to the Convention: an individual complaint procedure which enables individuals, having exhausted all domestic legal remedies, to take their grievances before the committee. From an international law perspective this was a truly significant step. Yet it remains to be seen how effective it will be in practice.
Much of this advance within the UN has been due to the lobbying of women’s rights proponents with access to governmental and international circles. Their activism has aimed to increase the authority of useful international mechanisms such as CEDAW, rather than directly attempting social change towards gender equality in the UN’s member-states.
As of April 2005, a remarkable 180 states had ratified CEDAW with only eleven UN member-states not being a party to it – the USA being the single exception amongst developed countries. Overall, those who signed up show a limited commitment, combined with increasing respect for the Convention. The majority of the states parties do not comply with the duty to submit periodic reports to the CEDAW committee every four years, making it difficult to establish a continuous monitoring process. However, where the committee has received regular reports it has almost always noted improvement. State institutions undergo a learning process, so that those delegations engaged in dialogue with the committee tend to be better prepared, franker and more aware of the complexity of their obligations.
However, roughly 20 percent of states parties have entered reservations that are incompatible with the Convention, usually not withdrawing them even if consistently urged by the committee to do so. For example, Singapore states:In the context of Singapore's multi-racial and multi-religious society and need to respect the freedom of minorities to practice their religious and personal laws, the Republic of Singapore reserves the right not to apply the provisions of articles 2 and 16 where compliance with these provisions would be contrary to their religious and personal laws.
This nullifies the Convention’s provision to grant equal rights and duties for men and women in matters regarding marriage and the family – one of the areas where equal rights for women are most necessary. Another group comprising less than 10 percent of states parties has overtly expressed disapproval with the fundamental reservations of other states, though this symbolic protest has had little effect.
For CEDAW’s domestic implementation, three factors seem to count: first, the degree to which political institutions enable the representation of women's interests within public policy formation; second, the existence of transnational governmental or non-governmental activism that supports the appropriation and implementation of international norms; and third, the level of cultural affinity with the Convention.
However, there is no direct correlation between higher cultural affinity and more comprehensive use of the Convention or vice versa. For example, the Convention was used to refine public gender policies in both the Netherlands and Finland – states that have achieved a high level of gender equality. However, in the Netherlands, CEDAW played only a marginal role, while it was the most important incentive for legal change in the Finnish case.
Moreover, states that explicitly oppose parts of the Convention may still take significant steps to implement parts they agree on. For example, Bangladesh entered a reservation to article 2, but still used CEDAW to frame its first comprehensive public programme to confront discrimination against women.
Finland and Chile – bringing CEDAW home
A more detailed picture emerges from the cases of Finland and Chile. Both states have complied with their formal duties under the Convention and have used CEDAW in domestic policies, but under differing political, socio-economic and cultural conditions.
In Finland, the Convention was signed in 1980 and ratified 6 years later, after significant amendments to Finnish legislation including an Equality Act. The Convention specifies the need for legislation, and Finland was the only Nordic country without legal provisions on gender-equality at that time. Political and socio-economic equality, including gender equality, had long been a highly valued norm in Finland, but paradoxically, this all-encompassing notion of equality often obscured social structures discriminating against or victimising women. A representative of the Finnish women’s policy unit, the Council for Equality, described their twofold strategy: they reminded the government of its international obligations, while arguing that Finland needed similar legal guarantees to those in comparable states like Sweden and Norway. A working group of members from all the relevant ministries was established, in which the Council for Equality took a leading role. Finally, the working group reported to the Parliament suggesting changes to several laws before CEDAW could be ratified. As well as the Equality Act, the working group proposed changes related to marriage law, nationality rights and child custody.
Various factors contributed to this success. The Finnish state is a democratic system in which different social interests – including those of women – are institutionally well represented. In this context, the Council for Equality could establish coalitions to diminish resistance against the proposed legal change. The women's policy agency was well connected with women's rights advocates at government level in other countries, and party to discussions at the international level. These transnational links helped reinforce claims that the Council for Equality had long been making. CEDAW proved to be just the instrument for foregrounding their perspective.
In Chile, both NGOs and governmental institutions have used CEDAW to strengthen their arguments against traditions and practices that discriminate against women. Chilean society is strongly marked by its authoritarianism and Catholicism. The prevailing notion of gender relations often collides with the Convention's provisions, especially regarding reproductive rights. Yet Chile's transition from dictatorship to democracy in the last 15 years, and especially the reconstruction of state institutions, was very much influenced by international standards. In 1991, organised women in Chile’s post-dictatorial political elite succeeded in establishing a women's policy unit, SERNAM, committed to fulfilling Chile's obligations under CEDAW.
However, while both SERNAM and Chilean women's NGOs draw on such international standards to promote women's rights, they do so very differently, seldom engaging in cooperative strategies in this conservative climate.
Take reproductive rights, an issue loaded with negative connotations because it is equated with the ultimate goal of legalising abortion. Abortion is illegal in Chile, but in reality, one in four pregnancies ends in abortion. The high percentage of unwanted pregnancies is a direct consequence of insufficient information and lack of available contraceptives. Unsafe illegal abortion is the second main cause of maternal death in Chile, mostly affecting poor women who do not have access to safe, private clinics.
When the CEDAW committee voiced concern about this high mortality rate, it caused outrage in the national media, where it was castigated as an assault on the values of Chilean society. SERNAM quickly retreated from this deep-rooted resistance, to concentrate on other issues of reproductive health, such as sterilisation or sex education and preventing teenage pregnancy, which while contentious are at least debatable. In contrast, NGOs working in the field have a long-term, radical perspective. They have built networks within the country and across the continent to address the taboo around abortion, and to help women who have had an abortion to grapple with their feelings of guilt. Chilean NGOs even drafted a bill on reproductive rights that was submitted for debate by a few sympathetic parliamentarians. But the issue has not found support within the political parties and so was not backed by SERNAM.
If the implementation process is more cumbersome in Chile it is because, as a legacy of dictatorship, state institutions represent the interests of women and the poor only to a limited extent. There are women's rights proponents in Chile, both governmental and non-governmental, who are transnationally connected and capable of introducing international norms into the domestic discourse. SERNAM has used CEDAW to add legitimacy to proposals in law and policy reform, defending them against right-wing protests. NGOs have used CEDAW to expose inadequate policies, and to raise awareness of the rights women should be able to enjoy, based on the international responsibilities Chile has assumed. However, there are also very active and powerful transnational, church-related networks promoting values opposing the Convention.
Last but not least, prevailing ideas of gender difference and complementary male and female roles contest the CEDAW concept of gender equality. This ‘mismatch’ has produced considerable domestic resistance towards international gender norms. But it also affords an opportunity for social change. The recent legalisation of divorce – probably the most contentious moral issue of the last decade – may be interpreted as one indication that such a process is underway.
In part 2 tomorrow: bringing about social change – the secret of CEDAW’s success...
Susanne Zwingel, Lecturer, Faculty for Social Sciences, University of Bochum, Germany, has recently completed her Ph.D. on the impact of the CEDAW Convention. The summary of her research findings appeared in the autumn edition of the International Feminist Journal of Politics 2005.