2. INTERNATIONAL HUMAN RIGHTS || 9TH
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TABLE OF CONTENTS
1. ACKNOWLEDGMENT
2. INTRODUCTION
3. HISTORY OF CEDAW
4. OVERVIEW OF THE CONVENTION
5. INDIA AND CEDAW
6. INITIATIVE BY THE INDIAN JUDICIARY
7. SHORTCOMINGS OF THE CONVENTION :
A) WEAK ENFORCEMENT MECHANISMS
B) RESERVATIONS
8. CONCLUSION
9. BIBLIOGRAPHY
3. INTERNATIONAL HUMAN RIGHTS || 9TH
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ACKNOWLEDGMENT
FIRST OF ALL, I WOULD LIKE TO THANK MY SUBJECT TEACHER MS. SHALU FOR
GIVING ME THIS PROJECT AND HELPING ME THROUGH THE COMPLETION OF IT, BY
GIVING TACTFUL OUTLINES. I HAVE LEARNT A LOT THROUGH HER LECTURES. I
WOULD ALSO THANK OUR LIBRARY STAFF FOR PROVIDING ME WITH RESOURCEFUL
BOOKS.
ACKNOWLEDGED BY :
NUPUR WALIA
38/10
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INTRODUCTION
BEYOND GENERAL HUMAN RIGHTS INSTRUMENTS, THERE ARE A FEW VERY IMPORTANT SPECIALIZED
TREATIES RELATING TO EQUALITY AND NON-DISCRIMINATION. THE TWO INSTRUMENTS THAT COME TO MIND
FOREMOST IN THIS REGARD ARE THE INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL FORMS OF
RACIAL DISCRIMINATION (ICERD, 1966) AND THE CONVENTION ON THE ELIMINATION OF ALL FORMS OF
DISCRIMINATION AGAINST WOMEN (CEDAW, 1979), ALSO KNOWN AS THE WOMEN'S CONVENTION. UDHR
ALSO STATES THAT ALL HUMAN BEINGS ARE BORN FREE AND EQUAL IN DIGNITY AND RIGHTS AND THAT
EVERYONE IS ENTITLED TO ALL THE RIGHTS AND FREEDOM SET FORTH THEREIN, WITHOUT DISTINCTION OF ANY
KIND, INCLUDING DISTINCTION BASED ON SEX.1
THIS PROJECT BASICALLY DEALS WITH CEDAW.2
CEDAW PROVIDES A BROAD DEFINITION OF DISCRIMINATION AGAINST WOMEN, ILLUSTRATING THE
POINT MADE THAT INTERNATIONAL LAW OFTEN PROVIDES BROADER PROTECTIONS THAN DOMESTIC LAW.
CEDAW EXPANDS THE NOTION OF EQUALITY FOR WOMEN BEYOND THAT CURRENTLY EMBRACED BY MOST
NATIONAL LAWS. UNDER CEDAW, THE TERM 'DISCRIMINATION AGAINST WOMEN' SHALL MEAN 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 MEN AND WOMEN, OF HUMAN RIGHTS AND FUNDAMENTAL
FREEDOMS IN THE POLITICAL, ECONOMIC, SOCIAL, CULTURAL, CIVIL OR ANY OTHER FIELD.3
THE TREATY
PROVIDES FOR WOMEN'S RIGHTS IN VARIOUS ARENAS SUCH AS GOVERNMENT AND POLITICAL LIFE, EDUCATION,
EMPLOYMENT HEALTH CARE, AND OTHER AREAS OF SOCIAL AND ECONOMIC LIFE. IT ALSO PROVIDES FOR
SPECIAL PROTECTIONS FOR WOMEN SUCH AS "TEMPORARY SPECIAL MEASURES" TO ADVANCE WOMEN AND TO
PROTECT MATERNITY. AT PRESENT, THERE ARE 186 MEMBER STATES AND 98 SIGNATORIES OF CEDAW. LIKE
ALL SPECIALIST TREATIES, THE CEDAW IS MONITORED BY AN EXPERT COMMITTEE NAMELY COMMITTEE ON
THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN (HEREINAFTER, THE ‘COMMITTEE'.)4
HOWEVER, THE MAIN AIM OF CEDAW, I.E., REVAMPING THE WEAK MECHANISM FOR PROTECTION OF
HUMAN RIGHTS OF WOMANKIND WOULD HAVE BEEN HARD TO ACHIEVE WITHOUT THE ELABORATION OF THE
OPTIONAL PROTOCOL TO THE CONVENTION. THE SHORTCOMINGS OF CEDAW COULD ONLY BE RECTIFIED
THROUGH THE ADOPTION OF THIS OPTIONAL PROTOCOL. SINCE 1997, THE COMMITTEE HAS MET TWICE A YEAR
(FOR A TOTAL OF FOUR WEEKS). AN OPTIONAL PROTOCOL WAS DRAFTED IN 1999 TO PROVIDE A COMPLAINT
PROCESS FOR INDIVIDUALS TO PETITION THE COMMITTEE REGARDING VIOLATIONS BY STATES PARTIES. THE
OPTIONAL PROTOCOL ENTERED INTO FORCE IN DECEMBER OF 2000. THE OPTIONAL PROTOCOL ALSO GIVES
THE COMMITTEE THE POWER TO EXAMINE GRAVE OR SYSTEMATIC VIOLATIONS BY A STATE PARTY, INCLUDING
A VISIT TO THE STATE. HOWEVER, THE COMMITTEE MUST ‘INVITE' THE COOPERATION OF THE STATE WITH THE
1
Brownlie Ian & Gill Guy S. Goodwin, Brownlie’s Documents on Human Rights, Oxford University Press,
6th
Ed., New York, 2010, Pg 429
2
Mishra Sujata, Women’s Health and Social Issues, Arise Publishers & Distributors, 1st
Ed., New Delhi,
2011, pg 42
3
Article 1 of the Convention defines Discrimination against women
4
HTTP://WWW.LAWTEACHER.NET/INTERNATIONAL-LAW/ESSAYS/AN-ANALYSIS-OF-THE-CEDAW.PHP (last visited
on 13th October, 2014 at 5:42 p.m.)
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INQUIRY AND THE STATE PARTY MUST CONSENT TO ANY VISIT. THE INQUIRY MUST ALSO BE CONDUCTED
CONFIDENTIALLY. ALTHOUGH NO RESERVATIONS ARE ALLOWED TO THE OPTIONAL PROTOCOL, STATES CAN
OPT OUT OF THIS INQUIRY PROCEDURE. CURRENTLY IT HAS 79 SIGNATORIES AND 98 PARTIES.5
HISTORY OF CEDAW6
EQUALITY OF RIGHTS FOR WOMEN IS A BASIC PRINCIPLE OF THE UNITED NATIONS. THE PREAMBLE TO
THE CHARTER OF THE UNITED NATIONS SETS AS ONE OF THE ORGANIZATION'S CENTRAL GOALS THE
REAFFIRMATION OF "FAITH IN FUNDAMENTAL HUMAN RIGHTS, IN THE DIGNITY AND WORTH OF THE HUMAN
PERSON, IN THE EQUAL RIGHTS OF MEN AND WOMEN". ARTICLE 1 PROCLAIMS THAT ONE OF THE PURPOSES OF
THE UNITED NATIONS IS TO ACHIEVE INTERNATIONAL COOPERATION IN PROMOTING AND ENCOURAGING
RESPECT FOR HUMAN RIGHTS AND FOR FUNDAMENTAL FREEDOMS FOR ALL WITHOUT DISTINCTION AS TO, INTER
ALIA, SEX. BY THE TERMS OF THE CHARTER, THE FIRST INTERNATIONAL INSTRUMENT TO REFER SPECIFICALLY
TO HUMAN RIGHTS AND TO THE EQUAL RIGHTS OF MEN AND WOMEN, ALL MEMBERS OF THE UNITED NATIONS
ARE LEGALLY BOUND TO STRIVE TOWARDS THE FULL REALIZATION OF ALL HUMAN RIGHTS AND FUNDAMENTAL
FREEDOMS. THE STATUS OF HUMAN RIGHTS, INCLUDING THE GOAL OF EQUALITY BETWEEN WOMEN AND MEN,
IS THEREBY ELEVATED: A MATTER OF ETHICS BECOMES A CONTRACTUAL OBLIGATION OF ALL GOVERNMENTS
AND OF THE UN.
THE INTERNATIONAL BILL OF HUMAN RIGHTS STRENGTHENS AND EXTENDS THIS EMPHASIS ON THE
HUMAN RIGHTS OF WOMEN. THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS
AND THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS, BOTH OF 1966, WHICH TRANSLATE
THE PRINCIPLES OF THE DECLARATION INTO LEGALLY BINDING FORM, CLEARLY STATE THAT THE RIGHTS SET
FORTH ARE APPLICABLE TO ALL PERSONS WITHOUT DISTINCTION OF ANY KIND AND, AGAIN, PUT FORTH SEX AS
SUCH A GROUND OF IMPERMISSIBLE DISTINCTION. IN ADDITION, EACH COVENANT SPECIFICALLY BINDS
ACCEDING OR RATIFYING STATES TO UNDERTAKE TO ENSURE THAT WOMEN AND MEN HAVE EQUAL RIGHT TO
THE ENJOYMENT OF ALL THE RIGHTS THEY ESTABLISH.
THE INTERNATIONAL BILL OF HUMAN RIGHTS, COMBINED WITH RELATED HUMAN RIGHTS TREATIES,
THUS LAYS DOWN A COMPREHENSIVE SET OF RIGHTS TO WHICH ALL PERSONS, INCLUDING WOMEN, ARE
ENTITLED. HOWEVER, THE FACT OF WOMEN'S HUMANITY PROVED INSUFFICIENT TO GUARANTEE THEM THE
ENJOYMENT OF THEIR INTERNATIONALLY AGREED RIGHTS. SINCE ITS ESTABLISHMENT, THE COMMISSION ON
THE STATUS OF WOMEN (CSW) HAS SOUGHT TO DEFINE AND ELABORATE THE GENERAL GUARANTEES OF NON-
DISCRIMINATION IN THESE INSTRUMENTS FROM A GENDER PERSPECTIVE. THE WORK OF CSW HAS RESULTED IN
A NUMBER OF IMPORTANT DECLARATIONS AND CONVENTIONS THAT PROTECT AND PROMOTE THE HUMAN
RIGHTS OF WOMEN.
ORIGINALLY ESTABLISHED IN 1946 AS A SUB COMMISSION OF THE COMMISSION ON HUMAN RIGHTS,
BUT QUICKLY GRANTED THE STATUS OF FULL COMMISSION AS A RESULT OF THE PRESSURE EXERTED BY
5
Supra note 4
6
http://www.un.org/womenwatch/daw/cedaw/ (last visited on 20th
October 2014 at 6:06 p.m.)
6. INTERNATIONAL HUMAN RIGHTS || 9TH
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WOMEN'S ACTIVISTS, THE MANDATE OF THE CSW INCLUDED THE PREPARATION OF RECOMMENDATIONS
RELATING TO URGENT PROBLEMS REQUIRING IMMEDIATE ATTENTION IN THE FIELD OF WOMEN'S RIGHTS WITH
THE OBJECT OF IMPLEMENTING THE PRINCIPLE THAT MEN AND WOMEN SHOULD HAVE EQUAL RIGHTS, AND THE
DEVELOPMENT OF PROPOSALS TO GIVE EFFECT TO SUCH RECOMMENDATIONS. BETWEEN 1949 AND 1959, THE
COMMISSION ELABORATED THE CONVENTION ON THE POLITICAL RIGHTS OF WOMEN, ADOPTED BY THE
GENERAL ASSEMBLY ON 20 DECEMBER 1952, THE CONVENTION ON THE NATIONALITY OF MARRIED WOMEN,
ADOPTED BY THE ASSEMBLY ON 29 JANUARY 1957, THE CONVENTION ON CONSENT TO MARRIAGE, MINIMUM
AGE FOR MARRIAGE AND REGISTRATION OF MARRIAGES ADOPTED ON 7 NOVEMBER 1962, AND THE
RECOMMENDATION ON CONSENT TO MARRIAGE, MINIMUM AGE FOR MARRIAGE AND REGISTRATION OF
MARRIAGES ADOPTED ON 1 NOVEMBER 1965. EACH OF THESE TREATIES PROTECTED AND PROMOTED THE
RIGHTS OF WOMEN IN AREAS IN WHICH THE COMMISSION CONSIDERED SUCH RIGHTS TO BE PARTICULARLY
VULNERABLE. BUT IT WAS BELIEVED THAT, EXCEPT IN THOSE AREAS, WOMEN'S RIGHTS WERE BEST PROTECTED
AND PROMOTED BY THE GENERAL HUMAN RIGHTS TREATIES.
THE TEXT OF THE CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST
WOMEN WAS PREPARED BY WORKING GROUPS WITHIN THE COMMISSION DURING 1976 AND EXTENSIVE
DELIBERATIONS BY A WORKING GROUP OF THE THIRD COMMITTEE OF THE GENERAL ASSEMBLY FROM 1977 TO
1979. DRAFTING WORK WITHIN THE COMMISSION WAS ENCOURAGED BY THE WORLD PLAN OF ACTION FOR
THE IMPLEMENTATION OF THE OBJECTIVES OF THE INTERNATIONAL WOMEN'S YEAR, ADOPTED BY THE WORLD
CONFERENCE OF THE INTERNATIONAL WOMEN'S YEAR HELD IN MEXICO CITY IN 1975, WHICH CALLED FOR A
CONVENTION ON THE ELIMINATION OF DISCRIMINATION AGAINST WOMEN, WITH EFFECTIVE PROCEDURES FOR
ITS IMPLEMENTATION. WORK WAS ALSO ENCOURAGED BY THE GENERAL ASSEMBLY WHICH HAD URGED THE
COMMISSION ON THE STATUS OF WOMEN TO FINISH ITS WORK BY 1976, SO THAT THE CONVENTION WOULD BE
COMPLETED IN TIME FOR THE 1980 COPENHAGEN MID-DECADE REVIEW CONFERENCE (WORLD CONFERENCE ON
THE UNITED NATIONS DECADE FOR WOMEN: EQUALITY, DEVELOPMENT AND PEACE). ALTHOUGH
SUGGESTIONS WERE MADE TO DELAY COMPLETION OF THE TEXT FOR ANOTHER YEAR, THE CONVENTION ON
THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN WAS ADOPTED BY THE GENERAL
ASSEMBLY IN 1979 BY VOTES OF 130 TO NONE, WITH 10 ABSTENTIONS. IN RESOLUTION 34/180, IN WHICH THE
GENERAL ASSEMBLY ADOPTED THE CONVENTION, THE ASSEMBLY EXPRESSED THE HOPE THAT THE
CONVENTION WOULD COME INTO FORCE AT AN EARLY DATE AND REQUESTED THE SECRETARY-GENERAL TO
PRESENT THE TEXT OF THE CONVENTION TO THE MID-DECADE WORLD CONFERENCE OF THE UNITED NATIONS
DECADE FOR WOMEN.
AT THE SPECIAL CEREMONY THAT TOOK PLACE AT THE COPENHAGEN CONFERENCE ON 17 JULY 1980,
64 STATES SIGNED THE CONVENTION AND TWO STATES SUBMITTED THEIR INSTRUMENTS OF RATIFICATION. ON
3 SEPTEMBER 1981, 30 DAYS AFTER THE TWENTIETH MEMBER STATE HAD RATIFIED IT, THE CONVENTION
ENTERED INTO FORCE - FASTER THAN ANY PREVIOUS HUMAN RIGHTS CONVENTION HAD DONE - THUS BRINGING
TO A CLIMAX UNITED NATIONS EFFORTS TO CODIFY COMPREHENSIVELY INTERNATIONAL LEGAL STANDARDS
FOR WOMEN.
7. INTERNATIONAL HUMAN RIGHTS || 9TH
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OVERVIEW OF THE CONVENTION7
IN THE FIRST PART OF THE CEDAW CONVENTION, WHICH CONSISTS OF 16 ARTICLES, DISCRIMINATION
IS DEFINED, AND THERE IS A LIST OF SITUATIONS OR ENVIRONMENTS IN WHICH WOMEN MAY BE DISCRIMINATED
AGAINST, INCLUDING IN POLITICS, THE ECONOMY, LABOR, EDUCATION AND HEALTH.
THE CONVENTION'S CONTENT, MORE THAN SIMPLY DEFINING WOMEN'S HUMAN RIGHTS, STRESSES TWO
CONCEPTS: EQUALITY BETWEEN THE SEXES AS A BASIC OBJECTIVE, AND THE NECESSITY OF ELIMINATING
DISCRIMINATION AS AN ULTIMATE GOAL.
OVER TIME, THE CONCEPT OF EQUALITY HAS EVOLVED. FOR THE THEORISTS OF THE FRENCH
REVOLUTION, EQUALITY INVOLVED TWO MAIN IDEAS: A) EQUALITY OF ALL CITIZENS BEFORE THE LAW; AND B)
ABOLITION OF ALL PRIVILEGES GAINED FROM BIRTH, RELIGION, OR RACE. NOW IT IS CONCEIVED THAT
EQUALITY BEFORE THE LAW, OR FORMAL EQUALITY, IS A MEANS TO REACH EQUALITY OF RIGHTS,
OPPORTUNITIES AND RESPONSIBILITIES, OR REAL, DE FACTO, EQUALITY. THE OBJECTIVE IS TO GO BEYOND
MERE LEGAL EQUALITY, SEEKING SOCIAL CHANGE AND TRANSFORMATION OF CULTURAL AND SOCIAL NORMS.
THIS MEANS THAT LAW IS NOT EVERYTHING, BUT RATHER A MEANS TO REACH AN END. IT IS,
HOWEVER, A VERY IMPORTANT MEANS, BECAUSE IT LEGITIMIZES WOMEN'S ASPIRATIONS AND SERVES AS A
LEVER OR CATALYST FOR SOCIAL CHANGE.
THE CONVENTION DEMANDS THAT STATES ADOPT APPROPRIATE MEASURES TO ELIMINATE
DISCRIMINATION AGAINST WOMEN WITHIN ALL SPHERES OF LIFE, PUBLIC OR PRIVATE. FOLLOWING THE
CONVENTION, STATES MUST:
• ABOLISH DISCRIMINATORY NORMS.
• MODIFY LAWS THAT ARE NOT IN LINE WITH THE CONVENTION.
• DICTATE NEW LAWS AND TAKE CONCRETE ACTIONS THAT WILL PROMOTE EQUALITY.
ARTICLE 1 DEFINES WHAT IS UNDERSTOOD AS DISCRIMINATION. TWO TYPES OF DISCRIMINATION ARE
RECOGNIZED:
• ACTS THAT PURPOSELY DISCRIMINATE AGAINST WOMEN.
• ACTS THAT, ALTHOUGH THEY MAY NOT HAVE THAT INTENT, NONETHELESS RESULT IN SOME KIND OF
DISCRIMINATION.
ARTICLE 2 DEFINES MEASURES THAT STATES SHOULD TAKE TO ELIMINATE DISCRIMINATION AGAINST WOMEN,
INCLUDING REFORMS AT THE CONSTITUTIONAL, POLITICAL AND LEGAL LEVELS, AS WELL AS MONITORING AND
SANCTIONING TO ELIMINATE DISCRIMINATION AGAINST WOMEN BY ANY PERSON, ORGANIZATION OR
7
HTTP://WWW.PDHRE.ORG/CEDAW/OVERVIEW.HTML (last visited on 19th October, 2014 at 6:35 p.m.)
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ENTERPRISE. ALONG WITH LAWS AND REGULATIONS, STATES MUST MODIFY PRACTICES AND CUSTOMS THAT
PUT WOMEN IN DISCRIMINATORY POSITIONS. RATHER THAN JUST DICTATE LAWS, STATES NEED TO PROMOTE
EQUALITY PLANS, INITIATE CAMPAIGNS IN THE MEDIA, CHANGE EDUCATIONAL PROGRAMS, ETC.
ARTICLE 3 REQUIRES THAT GOVERNMENTS TAKE ALL NECESSARY MEASURES, INCLUDING LEGISLATIVE, TO
GUARANTEE THE DEVELOPMENT AND ADVANCEMENT OF WOMEN. STATES MUST REVOKE LAWS AND PRACTICES
THAT NEGATIVELY AFFECT WOMEN, EVEN IF THEY SEEM TO BE "GENDER NEUTRAL."
ARTICLE 4 ENCOURAGES STATES TO ADOPT "POSITIVE MEASURES," SPECIAL MEASURES OF A TEMPORARY
NATURE TO ACCELERATE DE FACTO EQUALITY BETWEEN WOMEN AND MEN. IT CLARIFIES THAT AFFIRMATIVE
ACTION MEASURES SHOULD NOT BE CONSIDERED DISCRIMINATORY.
ARTICLE 5 DEMANDS THAT STATES TAKE ALL APPROPRIATE MEASURES TO MODIFY CULTURAL MODELS, SOCIAL
AND CULTURAL PATTERNS OF CONDUCT OF MEN AND WOMEN, AND PRACTICES, PREJUDICES AND CUSTOMS
WHICH ARE BASED ON THE IDEA OF THE INFERIORITY OR THE SUPERIORITY OF EITHER OF THE SEXES. IT ALSO
DEMANDS THAT FAMILY EDUCATION MUST CLARIFY THE COMMON RESPONSIBILITY OF MEN AND WOMEN IN THE
UPBRINGING AND EDUCATION OF THEIR CHILDREN. THE CONVENTION DOESN'T SPECIFY WHAT BEHAVIORAL
PATTERNS IT IS REFERRING TO, NOR DOES IT EXPLAIN THE NECESSARY MEASURES TO ERADICATE THEM. GOOD
GUIDES TO CONSULT ARE THE NAIROBI "FORWARD LOOKING STRATEGIES" AND THE BEIJING PLATFORM FOR
ACTION.
ARTICLE 6 AIMS TO SUPPRESS ALL FORMS OF TRAFFIC IN WOMEN AND EXPLOITATION OF WOMEN IN
PROSTITUTION. ARTICLE 7 GUARANTEES EQUALITY OF POLITICAL PARTICIPATION OF WOMEN AND MEN.
ARTICLE 8 DEMANDS WOMEN'S PARTICIPATION IN POSITIONS OF GOVERNMENT REPRESENTATION AT THE
INTERNATIONAL LEVEL. ARTICLE 9 GRANTS TO WOMEN EQUAL RIGHTS WITH MEN IN REGARD TO NATIONALITY.
IN PARTICULAR, IT CLARIFIES THAT A WOMAN'S NATIONALITY SHOULD NOT AUTOMATICALLY BE CHANGED BY
MARRIAGE OR A CHANGE IN HER HUSBAND'S NATIONALITY.
ECONOMIC, SOCIAL, AND CULTURAL RIGHTS ARE GUARANTEED IN ARTICLES 10 (EDUCATION), 11
(EMPLOYMENT), 12 (HEALTH AND FAMILY PLANNING), 13 (FAMILY BENEFITS, CREDIT, AND CULTURAL LIFE),
AND 14 (EQUALITY IN THE RURAL ENVIRONMENT).
ARTICLE 15 REAFFIRMS THE RECOGNITION OF EQUALITY BEFORE THE LAW BETWEEN WOMEN AND MEN,
ESPECIALLY IN THE FIELDS RELATED TO THE LEGAL CAPACITY OF WOMEN, FREEDOM OF MOVEMENT, AND
CHOICE OF RESIDENCE.
ARTICLE 16 OUTLINES THE NEED TO ELIMINATE DISCRIMINATION IN ALL MATTERS RELATING TO THE FAMILY
AND MARRIAGE. HUMAN RIGHTS PROTECTIONS, UNTIL THEN TIED TO THE PUBLIC ENVIRONMENT, ARE
INTRODUCED IN THE PRIVATE ENVIRONMENT. THIS IS VERY IMPORTANT BECAUSE IT PROVES THAT LAWS
WRITTEN TO GUARANTEE EQUALITY ARE INCOMPLETE IF THEY DON'T ADDRESS THE DISCRIMINATION WOMEN
FACE IN THEIR OWN HOMES. DIVISION OF TASKS AND RESPONSIBILITIES WITHIN THE HOME WHICH PUTS ON
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WOMEN'S SHOULDERS THE ALMOST EXCLUSIVE RESPONSIBILITIES OF CHILDREN'S UPBRINGING AND HOUSEWORK
OVERLOADS WOMEN SO THAT THEY ARE RESTRICTED FROM FULL AND FREE PARTICIPATION IN SOCIAL AND
POLITICAL LIFE. IF THIS PROBLEM IS NOT RESOLVED, DESPITE OTHER LEGAL REFORMS, IMPROVEMENTS IN
CONDITIONS FOR WOMEN WILL BE DELAYED INDEFINITELY.
THE SECOND PART OF THE CONVENTION EXPLAINS THE MECHANISMS CREATED TO MONITOR STATES PARTIES'
ADHERENCE TO THE CONVENTION. THESE INCLUDE REPORTS THAT EACH GOVERNMENT THAT SIGNED THE
CONVENTION MUST PRESENT TO THE COMMITTEE ON THE ELIMINATION OF DISCRIMINATION AGAINST WOMEN.
THE FIRST REPORT IS TO BE SUBMITTED A YEAR AFTER RATIFICATION OF THE CONVENTION. SUBSEQUENT
REPORTS ARE TO BE PRESENTED EVERY FOUR YEARS. IN EACH REPORT, STATES SHOULD SPECIFY WHAT KIND OF
MEASURES HAVE BEEN TAKEN TO ELIMINATE DISCRIMINATION AGAINST WOMEN, IN EACH AREA ADDRESSED IN
THE CONVENTION.
NON-GOVERNMENTAL ORGANIZATIONS MAY PRESENT THEIR OWN ALTERNATIVE REPORTS, CALLED SHADOW
REPORTS, IN WHICH THEY OUTLINE THEIR VIEWS ON THE SITUATION OF WOMEN AND ON MEASURES TAKEN --
OR NOT TAKEN -- BY THEIR GOVERNMENTS. THESE SHADOW REPORTS ARE SENT TO MEMBERS OF THE CEDAW
COMMITTEE, WHO TAKE THEM INTO ACCOUNT AND FORMULATE QUESTIONS FOR OR REQUEST EXPLANATIONS
FROM THE GOVERNMENT DELEGATIONS. UNFORTUNATELY THERE ARE NO SANCTIONS -- EXCEPT FOR POLITICAL
PRESSURE -- FOR COUNTRIES THAT FAIL TO PRESENT THEIR REPORTS.
THE CEDAW COMMITTEE IS MADE UP OF 23 EXPERTS FROM DIFFERENT COUNTRIES. EACH MEMBER SERVES
FOR FOUR YEARS. COMMITTEE MEMBERS ARE NOMINATED BY THEIR GOVERNMENTS AND ELECTED DURING A
SPECIAL MEETING CONVENED BY THE UN SECRETARY GENERAL EVERY TWO YEARS IN NEW YORK.
INDIA AND CEDAW
India has ratified the Convention on the Elimination of All Forms of Discrimination Against Women
(1979) on July 9, 1993. Ratification of the Convention obliges India to honour the obligations imposed by the
Convention. In Madhu Kishwar v. State of Bihar,8
it was held by the SC that the Convention on the
Elimination of All Forms of Discrimination Against Women is an integral scheme of the Fundamental Rights
and the Directive Principles. Article 2(e) of CEDAW enjoins the States Parties to breathe life into the dry bones
of the Constitution, International Conventions and the Protection of Human Rights Act, to prevent gender-
based discrimination and to effectuate right to life including empowerment of economic, social and cultural
rights. Article 2(f) read with Article 3, 14 and 15 of CEDAW embodies concomitant right to development as an
integral scheme of the Indian Constitution and the Human Rights Act. It is therefore desirable that the enabling
legislature is enacted to give legal effect to the Convention so that the discrimination against women which
exists due to legal, social and cultural traditions is eliminated. Rights provided therein will remain meaningless
to a large number of women due to their poverty, ignorance and illiteracy.9
8
A.I.R. 1996 SC 2178
9
Dr. Agarwal H.O., International Law and Human Rights, Central Law Publications, 19th
Ed., Allahabad,
2014, pg 854 & 855
10. INTERNATIONAL HUMAN RIGHTS || 9TH
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India while ratifying the Convention made two declarations and a reservation. The first declaration reads: with
regard to Article 5(a) and 16(1) of the CEDAW, the Government of the Republic of India declares that it shall
abide by and ensure those provisions with conformity with its policy of non-interference in the personal affairs
of any community without its initiative and consent. The second declaration states with regard to Article 16(2)
of CEDAW, the Government of the India declares that though in principle it fully supports the principle of
compulsory marriage, it is not practicable in a vast country like India with its variety of customs, religions and
the level of literacy. In additions to the above declarations, India made a reservation by stating that it does not
consider itself bound by paragraph 1 of Article 29 of the Convention which relates to the settlement of disputes
through arbitration.10
It is to be noted that the declaration relating to compulsory registration of marriage has become
meaningless in view of the declaration of the Supreme Court in Seema v. Ashwani Kumar,11
wherein the court
held that marriages of all persons who are citizens of India belonging to various religions should be made
compulsorily registrable in their States, where the marriage is solemnized. The Court asked the States to notify
the registration within three months. An official shall be appointed under the rules to register marriages. As and
when the Central Government enacts a comprehensive statute, the same shall be placed before the Supreme
Court for scrutiny. Counsel for the States shall ensure that the directions are carried out immediately. Later the
SC on October 25, 2007 held for the compulsory registration of marriages in respect of all persons who are
citizens of India even if they belong to various religions.12
It is to be noted that equality of status has been guaranteed to women by the Constitution under Article 14, 15
and 16. The Constitution has also cast the duty on every citizen to renounce practices derogatory to the dignity
of women.13
It being a part of Directive Principles of State Policy, is not enforceable in a court of law but if the
States makes any law to prohibit any act or conduct in violation of this duty, the Court would uphold the law as
a reasonable restriction of the fundamental rights. But it can be considered a myth to millions of women as they
are victims of various kind of violence within houses, at work places and in the educational system. They are
still subject to suppression. Tall promises for improving the plight of women was made during 2001 which was
declared as ‘Women’s Empowerment Year’ but they were far from being fulfilled. National Policy for the
Empowerment of Women was placed before a group of ministers but the policy has not been adopted. Seminars
were organized on number of issues affecting the conditions of women, no improvement has been made. They
are being discriminated as compared to brothers at home and their male colleagues at work.14
Jana Matson Everett identified five specific factors responsible for low status of women in India both in the
family and in society: the Hindu religion, the caste system, the joint family system, Islamic rule and British
colonialism. The values of Hinduism held the male superior to female, and ‘tradition’ holds the key to many of
the problems relating to women and their development. This is because the role women play in society and the
images we have of them have not developed simply from exigencies of biology and social situations but are
rather deeply rooted in the myths, legends, religion and culture. It is here that one finds, the underlying causes
10
Ibid, at 855
11
AIR 2006 SC 1158
12
Agarwal, Supra note 9 at 855
13
Article 51-a(e)
14
Agarwal, Supra note 9 at 855
11. INTERNATIONAL HUMAN RIGHTS || 9TH
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that kept the Indian women in subservience and devoid of any identity. This tradition has gain such significance
and come to be accepted as the unwritten law of the land, so that any effort to modify this accepted status of
women sounds not only alien but even repugnant to women themselves. It is this that makes the task of social
change particularly difficult in India. Hence it is not surprising, as S. Ruth observed, that women have lost the
power of naming, of explaining and defining for themselves the realities of their own experience.15
There is no doubt that women in our society are undergoing changes in their aspirations, perceptions,
expectations and values. Even though women’s problems generally command a high priority in contemporary
Indian society, rural women are still to liberate themselves from centuries of psychological, economic and
social discrimination. The reason why a large number of rural women are not aware of their customary and
legal rights are fourfold: illiteracy, excessive involvement in domestic chores, household constrains and
economic dependence on males. Since the rural ethos predominates and governs the social life of a large part of
India, one can discern not only the degree of backwardness of women but also that changes are marginal.16
INITIATIVE BY INDIAN JUDICIARY
THOUGH CEDAW HAS NOT BEEN INCORPORATED, THE JUDICIARY AND ITS PROACTIVE ROLE HAVE
PAVED THE WAY TO USE THE PRINCIPLES OF THE TREATY IN MANY JUDGMENTS. THE SUPREME COURT IN
VISHAKA’S CASE17
HAS HELD THAT ANY INTERNATIONAL CONVENTION, NOT INCONSISTENT WITH THE
FUNDAMENTAL RIGHTS AND IN HARMONY WITH ITS SPIRIT MUST BE READ INTO THESE PROVISIONS TO ENLARGE
THE MEANING AND CONTENT TO PROMOTE THE OBJECT OF THE CONSTITUTIONAL GUARANTEE. THIS DECISION
THUS ENABLED WOMEN TO INVOKE THE PROVISIONS OF THE INTERNATIONAL TREATIES AND ITS ENFORCEMENT.
IN THIS CASE, THE SUPREME COURT HAS LAID DOWN THE GUIDELINES FOR COMBATING SEXUAL HARASSMENT
AND WHILE DOING SO IT HAS ADOPTED THE DEFINITION OF SEXUAL HARASSMENT FROM GENERAL
RECOMMENDATION 19 OF THE CONVENTION. IN GITA HARIHARAN CASE18
DEALING WITH THE RIGHTS OF
WOMAN TO BE A GUARDIAN FOR THE MINOR CHILD, THE PRINCIPLES OF THE CONVENTION HAVE BEEN APPLIED
TO HOLD THE PROVISIONS OF THE HINDU GUARDIANSHIP AND MINORITY ACT, 1956, AS BEING
DISCRIMINATORY. IN BANDHUA MUKTI MORCHA V. UNION OF INDIA19
, THE SUPREME COURT DEALING WITH
CHILD LABOUR HELD THUS “NO DOUBT, THE GOVERNMENT, WHILE RATIFYING THE CONVENTION WITH A
RESERVATION OF PROGRESSIVE IMPLEMENTATION OF THE GOVERNANCE, REMINDED ITSELF OF THE
OBLIGATIONS UNDERTAKEN THERE UNDER, BUT THEY DO NOT ABSOLVE THE STATE IN ITS FUNDAMENTAL
GOVERNANCE OF THE IMPERATIVES OF DIRECTIVE PRINCIPLES OF THE CONSTITUTION, PARTICULARLY,
ARTICLES 45, 39(E) AND (F), 46 READ WITH THE PREAMBLE, ARTICLES 21, 23 AND 24 OF THE CONSTITUTION
RENDERING SOCIO-ECONOMIC JUSTICE TO THE CHILD AND THEIR EMPOWERMENT, FULL GROWTH OF THEIR
PERSONALITY — SOCIALLY, EDUCATIONALLY AND CULTURALLY — WITH A RIGHT TO LEISURE AND
OPPORTUNITY FOR DEVELOPMENT OF THE SPIRIT OF REFORM, INQUIRY, HUMANISM AND SCIENTIFIC TEMPER TO
15
Nirmal Chiranjivi J., Human Rights in India Historical, Social and Political Perspectives, Oxford India
Paperbacks, 2nd
Ed., New Delhi, 2003, pg 103
16
Ibid, at 103 & 104
17
AIR 1997 SC 3011
18
AIR 1999 SC 1149
19
(1997) 10 SCC 549
12. INTERNATIONAL HUMAN RIGHTS || 9TH
SEMESTER PAGE 12
IMPROVE EXCELLENCE — INDIVIDUALLY AND COLLECTIVELY" SO ALSO IN M.C..MEHTA V. STATE OF TAMIL
NADU20
THE SUPREME COURT HAS GIVEN DIRECTIONS TO THE GOVERNMENT TO MONITOR AND PREVENT CHILD
LABOUR IN THE SHIVAKASI CRACKER MANUFACTURING ESTABLISHMENTS. IN MUNICIPAL CORPORATION OF
DELHI V. FEMALE WORKERS (MUSTER ROLL)21
THE SUPREME COURT DEALING WITH THE DAILY WAGE WOMEN
EMPLOYEES’ RIGHT TO CLAIM MATERNITY BENEFIT HAS RECOGNIZED THE CHILD BEARING ROLE OF WOMEN AS
A SOCIAL FUNCTION, AS STIPULATED UNDER ARTICLE 5(B) OF CEDAW.22
SHORTCOMINGS OF THE CONVENTION
WEAK ENFORCEMENT MECHANISM:23
STATE PARTIES THAT HAVE RATIFIED THE WOMEN'S CONVENTION ARE BOUND BY ITS TERMS. PRIOR TO THE
ADOPTION OF THE OPTIONAL PROTOCOL, THE CONVENTION PROVIDED TWO PROCEDURES BY WHICH TO
MONITOR STATE PARTIES' COMPLIANCE WITH THE TERMS OF THE CONVENTION. THESE INCLUDED THE
INTERSTATE PROCEDURE AND THE REPORTING PROCEDURE, WHICH TOGETHER REPRESENTED THE ONLY MEANS
OF ENFORCING THE OBLIGATIONS OF THE CONVENTION UPON STATE PARTIES. THE INTERSTATE PROCEDURE,
SET FORTH IN ARTICLE 29, ADDRESSES THE CONFLICTING INTERPRETATIONS AND APPLICATIONS OF THE
CONVENTION BETWEEN STATE PARTIES. DISPUTES THAT ARISE OUT OF SUCH DIFFERING INTERPRETATIONS ARE
FIRST PUT TO ARBITRATION TO NEGOTIATE A SOLUTION TO THE DISPUTED INTERPRETATION. BARRING A
RESOLUTION WITHIN SIX MONTHS, THE DISPUTE CAN ULTIMATELY BE SENT TO THE INTERNATIONAL COURT OF
JUSTICE (ICJ) FOR A FINAL DECISION. THE VALUE OF THIS PROCEDURE IS SUBSTANTIAL, AS THE RULING OF THE
ICJ HAS BINDING EFFECT UPON STATE PARTIES UNDER INTERNATIONAL LAW. YET THERE ARE SEVERAL
OBSTACLES TO THE EFFECTIVE DEPLOYMENT OF THIS MECHANISM OF CONVENTION ENFORCEMENT. FIRST,
MOST STATE PARTIES HAVE LITTLE INCENTIVE TO INITIATE THE INTERSTATE PROCEDURE. THE UNDERLYING
PRINCIPLE OF NON-INTERVENTION IN THE INTERNAL AFFAIRS OF STATES IS AN INTERNATIONAL NORM THAT IS
STRONGLY SUPPORTED BY MOST STATES. IN THIS REGARD, STATES TEND TO BE CONCERNED WITH THE
RETALIATORY EFFECT OF ANY SUCH INTERVENTION INTO ANOTHER STATE'S DOMESTIC APPLICATION OF THE
CONVENTION, PARTICULARLY AS NEARLY EVERY STATE IS VULNERABLE TO CRITICISM OF ITS DOMESTIC
POLICIES TOWARDS WOMEN. SECOND, THE EFFECTIVENESS OF THE INTERSTATE PROCEDURE IS GREATLY
HAMPERED BY THE FACT THAT ANY STATE CAN REFUSE TO BE HELD TO THE PROCEDURE. ARTICLE 29(2) OF
THE CONVENTION ALLOWS STATE PARTIES TO DECLARE UPON RATIFICATION OF THE CONVENTION THAT THEY
ARE NOT BOUND BY THIS INTERSTATE PROCEDURE. FINALLY, THE PRACTICAL FORCE OF THE INTERSTATE
PROCEDURE HAS NOT BEEN TESTED, AS NO STATE PARTY HAS EVER INVOKED THE INTERSTATE PROCEDURE.
THE STATE REPORTING MECHANISM, SET FORTH IN ARTICLE 18, PREVIOUSLY REPRESENTED THE ONLY
EFFECTIVE MEANS OF MONITORING STATE PARTIES' ADHERENCE TO THE CONVENTION. THE REPORTING
MECHANISM OPERATES LIKE THOSE OF MANY OTHER HUMAN RIGHTS TREATIES. IT OBLIGES STATE PARTIES TO
SUBMIT AN INITIAL REPORT WITHIN ONE YEAR OF RATIFICATION OF THE CONVENTION, FOLLOWED BY PERIODIC
20
(1996) 6 SCC 756
21
AIR 2000 SC 1274
22
HTTP://WCD.NIC.IN/CEDAWREP2005.PDF (last visited on 19th October 2014 at 11:50 p.m.)
23
Supra note 4
13. INTERNATIONAL HUMAN RIGHTS || 9TH
SEMESTER PAGE 13
REPORTS AT LEAST ONCE EVERY FOUR YEARS. IN GENERAL, THE REPORTS MUST INCLUDE THE STEPS THE STATE
PARTY HAS TAKEN TO INTEGRATE THE CONVENTION OBLIGATIONS INTO DOMESTIC LAWS AND POLICIES AS
WELL AS IDENTIFY DIFFICULTIES THE STATE HAS FACED IN UPHOLDING THE CONVENTION. THESE REPORTS ARE
SUBMITTED TO CEDAW, WHICH EXAMINES THE REPORT IN THE PRESENCE OF THE RELEVANT STATE PARTY
REPRESENTATIVES AND OTHER INTERESTED PARTIES. ARTICLE 17 OF THE CONVENTION GIVES SPECIFIC
AUTHORITY TO CEDAW TO REVIEW STATE PARTIES' REPORTS AND SCRUTINIZE THEIR IMPLEMENTATION AND
ADHERENCE TO THE CONVENTION BEFORE THE INTERNATIONAL COMMUNITY. FURTHER, CEDAW MAY ISSUE
GENERAL RECOMMENDATIONS REGARDING THE NATURE AND EXTENT OF STATE PARTIES' COMPLIANCE WITH
THE CONVENTION BASED ON THEIR REPORTS. WITHIN THE CONTEXT OF ITS ROLE IN THE REPORTING
PROCEDURE, CEDAW IS UNABLE TO PLACE SANCTIONS UPON STATES FOR THEIR NON-COMPLIANCE WITH THE
CONVENTION. NOR CAN CEDAW ENGAGE IN ANY FORM OF ARBITRATION BETWEEN STATE PARTIES, OR AN
INDIVIDUAL AND A STATE PARTY, REGARDING THE INTERPRETATION OR APPLICATION OF THE CONVENTION
OBLIGATIONS. THE REPORTING PROCESS WAS STRUCTURED TO ALLOW FOR CONSTRUCTIVE DIALOGUE BETWEEN
STATE PARTIES AND CEDAW REGARDING IMPLEMENTATION OF THE CONVENTION. THIS DIALOGUE WAS
AIMED AT ACHIEVING PROGRESSIVE IMPLEMENTATION OF THE TERMS OF THE CONVENTION BASED ON EACH
STATE PARTY'S SPECIFIC RESTRAINTS AND CAPABILITIES. THE PROCESS BY WHICH REPORTS ARE REVIEWED BY
CEDAW, IN ADDITION TO THE STRONG AND GROWING PRESENCE OF NON-GOVERNMENTAL ORGANIZATIONS
(NGOS) IN THE DELIBERATIVE DIALOGUE BETWEEN STATE PARTIES AND CEDAW, IS SAID TO REPRESENT A
COMPREHENSIVE APPROACH TO ENFORCING STATE PARTY COMPLIANCE WITH THE CONVENTION. AS HAS
BECOME CLEAR OVER TIME, HOWEVER, NEITHER OF THE CONVENTION'S ORIGINAL ENFORCEMENT MECHANISMS
HAS SUFFICED TO ACHIEVE AN EFFECTIVE VIGILANCE OVER VIOLATIONS OF THE CONVENTION.
RESERVATIONS:24
ANOTHER HINDRANCE TO THE WOMEN'S CONVENTION IS THE EXPANSIVE NUMBER OF RESERVATIONS THAT
STATE PARTIES HAVE MADE TO THEIR OBLIGATIONS. THE CONVENTION IS AMONG THE MOST RESERVED OF
U.N. HUMAN RIGHTS INSTRUMENTS. RESERVATIONS ARE ALLOWED BY THE CONVENTION UNDER ARTICLE 28,
WHICH PERMITS RATIFICATION SUBJECT TO RESERVATIONS, PROVIDED THAT THEY ARE NOT ‘INCOMPATIBLE
WITH THE OBJECT AND PURPOSE OF THE PRESENT CONVENTION. YET THE CONVENTION PROVIDES NO
MECHANISM TO DETERMINE WHETHER A STATE PARTY VIOLATES THE ARTICLE COMPATIBILITY REQUIREMENT.
NOR DOES CEDAW HAVE THE AUTHORITY TO EVALUATE OR LIMIT RESERVATIONS THAT VIOLATE THE TERMS
OF ARTICLE 28. FURTHER, UNLIKE OTHER SIMILAR U.N. HUMAN RIGHTS INSTRUMENTS, INCLUDING THE
CONVENTION ON THE ELIMINATION OF RACIAL DISCRIMINATION, THERE ARE NO PROCEDURAL LIMITATIONS ON
MAKING RESERVATIONS. THE DEBATES SURROUNDING RESERVATIONS TO THE CONVENTION ARE CLOSELY
RELATED TO THE FUNDAMENTAL NORMATIVE CONTROVERSIES THAT CHALLENGE THE UNIVERSAL COMMITMENT
TO INTERNATIONAL WOMEN'S RIGHTS. WHILE STATE PARTIES MAY ACCEPT THE "OBJECT AND PURPOSE" OF THE
CONVENTION, THEY OFTEN DIFFER ON HOW THE "OBJECT AND PURPOSE" OF THE CONVENTION SHOULD BE
ACHIEVED. DIFFERING CULTURAL AND RELIGIOUS PRACTICES ARE OFTEN AT THE HEART OF THIS LACK OF
CONSENSUS. FOR EXAMPLE, MANY RESERVATIONS DEAL WITH THE CONFLICT BETWEEN FULL EQUALITY RIGHTS
AND SOME INTERPRETATIONS OF ISLAM THAT QUALIFY THE DEFINITION OF SEXUAL EQUALITY TO SOMETHING
24
Supra note 4
14. INTERNATIONAL HUMAN RIGHTS || 9TH
SEMESTER PAGE 14
SIGNIFICANTLY LESS THAN THE EXPANSIVE NOTION OF SEXUAL EQUALITY EMBODIED IN THE CONVENTION.
OTHER PROMINENT RESERVATIONS DEAL WITH NATIONAL RELIGIOUS OR CUSTOMARY LAWS THAT RESTRICT
WOMEN'S INHERITANCE AND PROPERTY RIGHTS; NATIONALITY LAWS THAT DO NOT ACCORD WOMEN THE SAME
RIGHTS AS MEN TO ACQUIRE, CHANGE OR RETAIN THEIR NATIONALITY UPON MARRIAGE AND LAWS LIMITING
WOMEN'S ECONOMIC OPPORTUNITIES, FREEDOM OF MOVEMENT AND CHOICE OF RESIDENCE. MANY OF THESE
RESERVATIONS HAVE BEEN QUESTIONED IN TERMS OF THEIR COMPATIBILITY WITH THE "OBJECT AND PURPOSE"
OF THE CONVENTION.
THE ISSUE OF THE DEBILITATING EFFECTS OF THE NUMEROUS RESERVATIONS TO THE CONVENTION
WAS RAISED BY STATE PARTIES AND PUT BEFORE THE U.N. GENERAL SECRETARY IN 1986. BUT BECAUSE OF
THE HIGHLY DIVISIVE VIEWS ON THE SUBJECT AMONGST STATE PARTIES, THE ISSUE HAS NEVER BEEN
DECISIVELY RESOLVED. DRAFTERS OF THE WOMEN'S CONVENTION JUSTIFIED THE LIBERAL POLICY TOWARD
RESERVATIONS AS A MEANS TO MAXIMIZE PARTICIPATION BY STATES, AS THEY ANTICIPATED THE CONFLICTING
NORMATIVE DILEMMAS THAT LATER DID ARISE REGARDING SPECIFIC PROVISIONS OF THE CONVENTION.
THEY ENDORSED THE RESERVATIONS PROVISION AS A MEANS OF HIGHLIGHTING THOSE DOMESTIC
PRACTICES THAT DO NOT COMPLY WITH THE CONVENTION AND ENCOURAGED STATE PARTIES TO EXPLORE
HOW SUCH PRACTICES CAN BE RECONCILED WITH THE OBJECT AND PURPOSE OF THE CONVENTION. IN THIS
REGARD, CEDAW REQUIRES STATE PARTIES TO ADDRESS THE SUBJECT OF THEIR RESERVATIONS TO THE
CONVENTION IN EVERY REPORT TO THE COMMITTEE. BUT WITH LITTLE OTHER INCENTIVE TO REFRAIN FROM
RESERVING, STATE PARTIES CONTINUE TO USE THE RESERVATIONS PROVISION AS A WAY TO PRESERVE THE
STATUS QUO RATHER THAN WORK TOWARDS THE ADVANCEMENT OF THE GOALS OF THE CONVENTION.
CONCLUSION
BOTH THE WEAK ENFORCEMENT MECHANISMS AND THE GENERAL ACCEPTANCE OF THE NUMEROUS
RESERVATIONS TO THE FUNDAMENTAL OBLIGATIONS OF THE CEDAW INDICATE THE LARGER LACK OF
COMMITMENT TO THE BASIC NORMS AND VALUES THAT INFORM THE INTERNATIONAL WOMEN'S RIGHTS REGIME.
SOME HAVE CRITICIZED THE CONVENTION AS ACTING ONLY AS A SYMBOLIC COMMITMENT TO THESE NORMS
AND VALUES. WHETHER OR NOT ONE ACCEPTS THESE CRITIQUES, IT IS UNDENIABLE THAT THE CHALLENGES TO
ACHIEVING THE CONVENTION'S GOAL OF EQUALITY AND NON-DISCRIMINATION GO BEYOND THE LIMITED
EFFECTIVENESS OF ITS ORIGINAL PROCEDURES EVEN IF THESE PROCEDURES WERE TO WORK PERFECTLY. EVEN
IF IT IS AGREED THAT THE PRINCIPLES AND VALUES THAT INFORM THE CONVENTION ARE FUNDAMENTALLY
SOUND, SOMETHING MORE IS CLEARLY NEEDED TO LINK THESE PRINCIPLES WITH THE ELIMINATION OF THE
CONCRETE FORMS OF DISCRIMINATION STILL FACED BY WOMEN. PROMOTING THESE PRINCIPLES IN VARIOUS
REAL-LIFE CONTEXTS WILL BE CRUCIAL TO THE CONVENTION'S LONG-TERM ABILITY TO IMPROVE THE STATUS
OF WOMEN IN SOCIETY. PRIOR TO THE ADOPTION OF THE OPTIONAL PROTOCOL, THE CONVENTION OFFERED NO
DIRECT MECHANISM OR INCENTIVE FOR STATES TO RECONCILE THEIR COMMITMENT TO THE NORMS AND
PRINCIPLES OF THE CONVENTION WITH THE CONFLICTING NORMS ROOTED IN DOMESTIC LAWS AND PRACTICES.
YET THE RECENT PROCEDURAL INNOVATIONS TO THE CONVENTION EMBODIED IN THE OPTIONAL PROTOCOL
15. INTERNATIONAL HUMAN RIGHTS || 9TH
SEMESTER PAGE 15
WHICH HAVE BEEN DISCUSSED IN DETAIL EARLIER HAVE THE POTENTIAL TO SURMOUNT THIS FUNDAMENTAL
CHALLENGE, AND IT IS ABSOLUTELY NECESSARY IN THE CONTEXT OF INTERNATIONALLY PROTECTED WOMEN'S
RIGHTS THAT IT CAN DO SO.25
THOUGH MANY COUNTRIES HAVE RATIFIED THE CONVENTION BUT STILL THE CONVENTION IS NOT
IMPLEMENTED LIKE IN THE STATE OF AFGHANISTAN. REALITY STRUCK HOME FOR AFGHANISTAN OVER THE
CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN (CEDAW).
RATIFIED BY AFGHANISTAN IN 2003 DURING THE EARLY HEADY POST-TALIBAN DAYS WHEN IT SEEMED LIKE A
BRIGHT FUTURE FOR WOMEN WAS INEVITABLE, CEDAW IS A TREATY THAT REQUIRES/DEMANDS GENDER
EQUALITY IN ACCESS TO EDUCATION, HEALTH CARE, AND POLITICAL PARTICIPATION. IT IS THE BASIS FOR
GLOBAL EFFORTS TO END VIOLENCE AGAINST WOMEN. THE AFGHAN GOVERNMENT IS FAILING IN MANY WAYS
TO LIVE UP TO THE COMMITMENT IT MADE BY SIGNING ON TO CEDAW. WHEN YOU RATIFY A CONVENTION
YOU DON’T JUST GET A PAT ON THE BACK AND THEN A PASS ON YOUR OBLIGATIONS.26
IN THE GUJARAT RIOTS OF 2002 INDIA ALSO FAILED TO PROTECT THE DIGNITY AND RIGHTS OF WOMEN AND
THE INVESTIGATION CONDUCTED BY GUJARAT POLICE WAS ALSO QUESTIONED. USA HAS STILL NOT RATIFIED
THE CONVENTION. RATIFICATION OF CEDAW REQUIRES 67 SENATORS TO STAND TOGETHER FOR WOMEN AND
GIRLS.27
THUS IT CAN BE STATED THAT CEDAW COULD NOT ACHIEVE THE DESIRE EFFECT IN VIEW OF THE FACT THAT
WOMEN’S HUMAN RIGHT ARE STILL DISREGARDED AND VIOLATED WORLD WIDE, IN DIFFERENT WAYS AND IN
VARYING DEGREES MAINLY BECAUSE INEQUALITIES BETWEEN MEN AND WOMEN HAVE ROOTS IN SOCIETAL
NORMS AND VALUES. THEY CANNOT CHANGE OVERNIGHT AS A RESULT OF INTERNATIONAL AGREEMENTS OR
EVEN BY LEGISLATION. CEDAW COMMITTEE IN 2004 STATED THAT EVEN 25 YEARS AFTER THE ADOPTION OF
THE CONVENTION, NO COUNTRY IN THE WORLD HAS ACHIEVE TOTAL EQUALITY BETWEEN THE SEXES BOTH IN
LAW AND IN PRACTICE. THE COMMITTEE ALSO STATED THAT DISCRIMINATORY LAWS REMAIN IN 178 STATES
THAT ARE PARTIES TO THE CONVENTION. IN OTHER COUNTRIES LAWS MIGHT PROMOTE EQUALITY BUT
INFORMAL DISCRIMINATION REMAINS.28
IN SPITE OF THE LACK OF A MEANINGFUL ENFORCEMENT MECHANISM AND VARIOUS OTHER SHORTCOMINGS,
HOWEVER, CEDAW HAS INSPIRED FEMINIST ACTIVISM AROUND THE WORLD AND HELPED RAISE WOMEN’S
LEGAL CONSCIOUSNESS.29
25
Supra note 4
26
HTTP://WWW.HRW.ORG/NEWS/2014/07/11/AFGHANISTAN-FAILING-COMMITMENTS-PROTECT-WOMENS-RIGHTS
(last visited on 13th October at 12:27 a.m.)
27
HTTP://WWW.CEDAW2011.ORG/INDEX.PHP/WHATS-IN-IT-FOR-US (last visited on 13th October 2014 at 12:49
a.m.)
28
Gupta U.N., Human Rights Convention and Indian Law, Atlantic Publishers and Distributers, 4th
Ed., New
Delhi, 2011, pg 236
29
HTTP://PAPERS.SSRN.COM/SOL3/PAPERS.CFM?ABSTRACT_ID=1983565 (last visited on 13th October 2014 at
12:49 a.m.)
16. INTERNATIONAL HUMAN RIGHTS || 9TH
SEMESTER PAGE 16
BIBLIOGRAPHY
BOOKS
1. Gupta U.N., Human Rights Convention and Indian Law, Atlantic
Publishers and Distributers, 4th
Ed., New Delhi, 2011, pg 236
2. Dr. Agarwal H.O., International Law and Human Rights, Central Law
Publications, 19th
Ed., Allahabad, 2014, pg 854 & 855
3. Brownlie Ian & Gill Guy S. Goodwin, Brownlie’s Documents on Human
Rights, Oxford University Press, 6th
Ed., New York, 2010, Pg 429
4. Mishra Sujata, Women’s Health and Social Issues, Arise Publishers &
Distributors, 1st
Ed., New Delhi, 2011, pg 42
5. Nirmal Chiranjivi J., Human Rights in India Historical, Social and Political
Perspectives, Oxford India Paperbacks, 2nd Ed., New Delhi, 2003, pg 103
WEB LINKS
1. HTTP://WWW.HRW.ORG/NEWS/2013/07/11/AFGHANISTAN-FAILING-COMMITMENTS-PROTECT-WOMENS-
RIGHTS
2. HTTP://WWW.CEDAW2011.ORG/INDEX.PHP/WHATS-IN-IT-FOR-US
3. HTTP://WWW.UN.ORG/WOMENWATCH/DAW/CEDAW/
4. HTTP://WWW.LAWTEACHER.NET/INTERNATIONAL-LAW/ESSAYS/AN-ANALYSIS-OF-THE-CEDAW.PHP
