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To what extent has the Convention on the Elimination of All Forms of Discrimination against
Women been successful in achieving its aim of eliminating discrimination against women?
The Convention on the Elimination of All Forms of Discrimination against Women1 has been
seminal in bringing women’s rights to the forefront of international human rights discourse.
This is largely owing to the transformative and obligatory nature of the Convention, combined
with the fact that it addresses women’s rights within a range of fields which were previously
considered ‘private’, permeating to a certain extent the public/private dichotomy that has so
frequently precluded State intervention for the purpose of elimination of discrimination
against women.2 The Convention has however come under scrutiny for posing a hurdle to
proper implementation of its principles in the respective jurisdictions of its State Parties by
way of its acceptance of State Party reservations under Article 28.3 The purpose of this essay
is to argue that whilst the Convention has successfully combatted discrimination in many of
its signatories’ states, ultimately the State Party reservations to the Convention render it
largely unsuccessful in the achievement of its ultimate aim; the elimination of discrimination
against women.4
In order to come to the aforementioned conclusion, this essay will take the following course.
A brief background to the Convention will be provided. Part one will provide an outline of the
aims of Convention and the measures it employs to achieve such aims. Part two will provide
examples of successful incorporation of the principles of the Convention into national law.
Part three will explore the significant hurdle that reservations to the Convention pose to the
elimination of discrimination. Part four will explain the theoretical underpinnings of the
reservations to the Convention. Part five will discuss the importance of the role of non-
governmental organisations in reconciling the universal nature of the convention with the
differing circumstances of the women affected by it. This essay will draw to the conclusion
that whilst the Convention has succeeded in bringing women’s rights into the forefront of
human rights discourse, it has not succeeded in its key aim: the elimination of discrimination
against women.
1 Convention on the Elimination of All Forms of Discrimination Against Women (adopted 18 December 1979,
entered into force 3 September 1981), 1249 (UNTS) 13, [hereinafter the Convention].
2 Articles 1 and 3 of the Convention refer specifically to rights in political, economic, social and cultural fields.
3 Article 28, the Convention.
4 For the purposes ofthis essay the definition ‘discrimination against women’ is as defined Article 1 of the
Convention and the definition itself will not be disputed.
2
Background
Hilary Charlesworth has argued that there is a fundamental gender bias in which human rights
are primarily defined according to the criteria of “what men fear will happen to them”5 in
their relationship with the state, society, and other men.6 Her view is evidenced by the fact
that prior to the Convention, Human Rights instruments have not addressed the specific
disadvantages faced by women. This is shocking when one considers that worldwide, women
are subjected to discrimination, subordination and inequality as a result of their sex. The
Convention seeks to systematically address the areas in which discrimination manifests,
culminating in its elimination.
Part 1 – The Convention.
The Convention differs from other human rights instruments in that it does not just confer
additional rights upon those whom it seeks to protect. Instead, it aims to transform the system
in which women’s rights are violated by placing the positive obligation on its signatories to
‘take appropriate measures to eliminate discrimination’.7 The transformative nature of the
Convention is evident in its systematic address of all forms of discrimination that are
inherently pervasive within societies and in its recognition that ‘a change in the traditional
role of men as well as the role of women in society and in the family is needed to achieve full
equality between men and women’.8 Thus, the Convention seeks to address the problems
posed by the widespread existence of deep-rooted inherent discrimination against women.9
A reflection of the Convention’s address of inherent discrimination is evident in Article 2
which determines the positive measures to be undertaken by State Parties for the
counterbalancing of the subordinate position of women. It is recognised that existing
inequalities between men and women mean that laws, policies and programmes applying to
the respective sexes may have to differ in order to achieve equality of outcomes.10 Neutrality
is insufficient if it prevents women from exercising their rights on a basis of equality with
men.11 Article 2 sets out the positive steps to be taken by signatories to the Convention which
5 Hilary Charlesworth, What are women's international human rights? in Rebecca Cook, Human rights of
women: National and international perspectives,(University of Pennsylvania Press 1994).
6 See Niamh Reilly, “Cosmopolitan Feminism and Human Rights,” 22:4 Hypatia, 185.
7 The Convention, Articles 2-16.
8 The Convention, Preamble.
9 See Neil Englehart and Melissa Miller (2014) “The CEDAW Effect: International Law’s Impact
on Women’s Rights”, 13:21, Journal of Human Rights, 22-47.
10 Woman’s Human Rights Alliance, March 2006, “Taking CEDAW Seriously”A Conference to promote, apply
and enforce the UN CEDAW Convention, Conference Report 14.
http://lastradainternational.org/lsidocs/Taking%20CEDAW%20Seriously-Conference%20Report[1].pdf
11 See Woman’s Human Rights Alliance, March 2006, “Taking CEDAW Seriously” A Conference to promote,
apply and enforce the UN CEDAW Convention, Conference Report, 13-16.
3
include: the embodiment of the principle of equality through incorporation into national
legislation; the abolishment of existing discriminatory legislation; the repeal of constitutional
penal codes that amount to discrimination and; the adoption of measures, including
legislation, to prohibit discrimination.12 The effect of Article 2 is that State Parties take a
proactive approach in applying the principles of the Convention which, as shall be discussed
in Part 2 of this essay, has led to significant advances in the elimination of discrimination
against women in numerous signatory States.
In other countries however the obligatory nature of Article 2 has been undermined by the
reservations to the Convention which allow State Parties to opt out of its provisions, usually
on religious and cultural grounds, precluding the elimination of discrimination against
women.13 A further examination of these reservations will follow, in Part 3 of this essay.
Furthermore, it may be contended that the imposition of positive obligations upon State
Parties is insufficient insofar as the measure of equality that the measures are seeking to
promote is based on the male standard14 which our society is, arguably, built upon; in the eyes
of Catherine MacKinnon ‘man, has become the measure of all things.’15 From this
perspective, the notion of the concept of ‘equality’ within the Convention being based upon
the male standard could in itself be viewed as discriminatory leading to a paradox whereby
the Convention contributes towards the very discrimination it sets out to eliminate.
Articles 3 through to 16 of the Convention address the spheres in which discrimination
against women must be eliminated, recognising that discrimination is often most prevalent
and deeply rooted in areas of life such as culture, the family, and interpersonal relations, and
that if change does not take place at those fundamental levels, efforts to achieve gender
equality will be frustrated.16 Article 13 is particularly encouraging in that it specifically refers
to the private aspects of the economic and social sphere, stating that State Parties must take
‘all appropriate measures’17 to eliminate discrimination against women in order to give
women and men equal rights to: family benefits18, forms of financial credit19 and, to
http://lastradainternational.org/lsidocs/Taking%20CEDAW%20Seriously-Conference%20Report[1].pdf
12 The Convention, Article 2, paragraphs (a),(f), (g), and (b).
13 See Chapter 6, “Opting out of Women’s Human Rights: Reservations to Human Rights Treaties and the
Defence of Culture” in Siobhan Mullally, Gender, Culture and Human Rights:Reclaiming Universalism, (Hart
Publishing 2006), 89-115.
14 Hilary Charlesworth, Christine Chinkin and Shelley Wright, (1991) “Feminist Approaches To International
Law,” 85 American Journal of International Law at 632.
15 Catherine MacKinnon, Feminism Unmodified: Discourses On Life And Law, (Harvard University Press 1987).
16 See Lee Waldorf (2007) “CEDAW and the Human Rights Based Approach to Programming,” New
York: United NationsDevelopment Fund for Women, 7-8.
17 The Convention, Article 13.
18 Ibid. para (a).
4
participate in recreational activities, sports and all aspects of cultural life20. Article 16 furthers
the recognition of discrimination in the private sphere by addressing issues in marriage and
family matters.21
The attention that the Convention pays to the home and family realm is one of its novel
aspects. To an extent, the insistence that states take appropriate measures to remove
discrimination in the home results in a permeation of the public/private dichotomy which
often poses a significant hurdle to women being able to make use of their rights. In turn, this
leads to the breaking down of the common view that in international human rights discourse,
the protection of the citizen from abuses of power by the State is regarded as of utmost
importance, whereas obliging states to use economic resources and put social supports in
place in order to fulfil economic and social rights is regarded as secondary.22 Thus, one may
argue that Articles 13 and 16 are paramount to the success of the Convention in eliminating
discrimination against women owing to its crossover into the private sphere, in which
discriminatory trends are so deeply embedded and disturbingly prevalent. Whilst the
aforementioned direct intervention within the private sphere conveys the clear message that
discrimination on any level is unwelcome, it is not without its negative consequences.
Somewhat paradoxically, it has been the stimulus for many of the reservations which, as shall
be further elaborated in Part 3, have significantly hindered to success of the Convention in
achieving its core aim.
The Convention’s systematic address of the spheres in which discrimination against is
prevalent cannot however go without merit. It has answered the call for a gender sensitive
rights approach, resulting in significant advances for women, and small but significant steps
towards equality in its signatories’ jurisdictions, which shall now be considered.
Part 2: The Convention in action.
The successes of the Convention in achieving the elimination of discrimination against
women are apparent in the positive effects it has had for girls and women within the States of
its signatories. These effects include the protection of women and girls against violence and
trafficking; the prevention of discrimination against women in nationality, inheritance, and
property ownership; the promotion of the full participation of women in the economic and
political life of their countries; and the advancement of women’s human rights by promoting
19 Ibid. para (b).
20 Ibid. para (c).
21 The Convention, Article 16.
22 Supra note 10, at 4.
5
equality.23 One must deduce that the Convention has been a primary catalyst for great change
and reform. Unfortunately, these positive changes are undermined by evidence of continuing
discrimination in every single State Party to the Convention, despite ratification. This notion
shall now be evidenced by way an exploration of the direct impact the Convention has had on
discrimination against women in the States of two illustrative examples: India and Turkey.
India
The Convention has had small but significant impacts on the position of women in India, a
country in which has been labelled as the fourth most dangerous country in the world for
women.24 Violence against women is prominent in India, with women being subjected to
dowry related violence, ‘honour’ killings, sexual abuse and rape, and acid attacks.25
In the case of Vishaka v Rajasthan26 officials failed to investigate the case of a female victim,
a social worker, who was allegedly brutally gang raped when she was visiting a village to
investigate a child marriage. The officials claimed that the reason for their lack of
investigation was that there were no laws in existence for the protection of women from
sexual harassment in the workplace. When numerous women’s organizations became aware
of the issue, they filed a case for court enforcement of the rights of women in the workplace.
The Indian Supreme Court ruled in their favour, citing Article 11 of the Convention, which
obliges state parties to take appropriate measures to eliminate discrimination against women
in employment, as the fundamental reason for the crafting of guidelines regarding sexual
harassment in the workplace until the passing of legislation.27
Furthermore, in 2005 the government passed the Hindu Succession (Amendment) Act 200528
which amended the Hindu Succession Act of 195629 in order to establish equality in property
rights. The preferential treatment of a Son in the inheritance of property is discriminatory and
23 For an elaborate exploration of these positive effects see: International Centre for Research on Women (2010)
“The Global Impact Of The Convention Of The Elimination Of All Forms Of Discrimination Against Women,” 5-
15.
24 Lisa Anderson,(June 2011) “TrustLaw Poll: Afghanistan is most dangerous country for women,” Thomson
Reuters Foundation.
http://www.trust.org/item/?map=trustlaw-poll-afghanistan-is-most-dangerous-country-for-women/
25 See Sheela Saravanan, (March 2000), “Violence against Women in India A Literature review,” Institute of
Social Studies Trust.
http://www.isst-india.org/pdf/violence%20against%20women%20india.pdf
26 Vishaka and others v State of Rajasthan and others (1997) 6 SCC 241.
27 Vishaka is a prime example of the significance of the role of NGOs in ensuring State Parties properly
implement the Convention, which shall be discussed furtheron in this paper.
28 Parliament of India, Hindu Succession (Amendment) Act 2005.
29 Parliament of India, Hindu Succession Act 1956.
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contravened specifically Article 15(2) of the Convention. Under the 2005 Act, women,
including widows who have remarried, can inherit property on the same terms as men. 30
Despite these advances, in its 2014 concluding observations to India’s combined fourth and
fifth reports31 the Committee on the Elimination of Discrimination against Women32
expressed concern over India’s lack of implementation of the Convention and the resulting
continuance of discrimination against women.33 In its observations the Committee refers to
increase of violent crimes against women, ‘especially rape, kidnapping and abduction, and the
high number of cases of rape reported by the National Crime Records Bureau in 2012,
indicating an increase by 902.1% since 1971, and on-going impunity for such acts.’34 The
Committee also expressed concern that marital rape is still legal where the wife is over the
age of fifteen, that the number of acid attacks continues to rise, and that ‘honour’ related
crimes continue.35 From this grave information, it is impossible to deduce that the Convention
has led to the elimination of discrimination against women. Although there have been positive
reforms in property and employment rights for women, the persistence of atrocious crimes
against women reflects a clear image of oppression, discrimination and inequality in the
signatory State of India.
Turkey
In Turkey the reporting processes of the Convention have led to the formation of critical
political forums between women’s organisations, national and international. These forums
have been a significant force for change in Turkey, with 236 women’s organizations coming
together in the End Violence Platform.36 Women’s organizations have relied on the
Convention in their rallying for the reform civil and penal codes. Their efforts have led to a
new penal code37 which includes thirty amendments that offer wider definitions and higher
30 Hindu Succession (Amendment) Act 2005, Section 6.
31 Committee on the Elimination of Discrimination against women, (October 2013), “Consideration ofreports
submitted by Statesparties underarticle 18 of the Convention:Combined fourth and fifth periodic reports of
Statesparties, India,” CEDAW/C/IND/4-5.
32 [hereinafter the Committee]
33 Committee on the Elimination of Discrimination against Women, (July 2014), “Concluding observations on
the combined fourth and fifth periodic reports of India,” CEDAW/C/IND/CO/4-5.
34 Ibid. Para. 10(a).
35 Ibid. Para 10.
36 Women for Women’s Human Rights: New Ways,“National Advocacy.”
http://www.wwhr.org/national-advocacy/
37 Turkish Criminal Code 2004, Law Number 5237,, as last amended by Law Number 6217 of March 31, 2011.
7
sanctions for sexual crimes, the illegalisation of marital rape and prevention of sentence
reduction for those who have committed ‘honour’ crimes.38
Despite improvements in the protection of women against violence, in its 2010 shadow
report39 The Executive Committee for NGO Forum on CEDAW expressed concern that the
amendments were unsatisfactory.40 As in India, ‘honour’ killings in Turkey have continued, in
fact, they have been relabelled as ‘killings in the name of custom’ which has resulted in a
legal loophole through which certain types of ‘honour’ killings are not covered.41 The dire
epidemic of continuing discrimination and violence against women in Turkey has recently
received global attention, sparked by the brutal murder or a young woman, Ozgecan Aslan,
after she attempted to resist rape. The tragedy caused worldwide protest, with three million
people signing an online petition for severe punishment against her attackers. This is just one
example. Three hundred women were murdered in Turkey in 2014.42
The situation in Turkey is an example of deeply engrained cultural customs preventing the
Convention from achieving its aim of the elimination of the discrimination against women.
On the surface, the government applied the principles of the Convention through reformation
of its codes. In reality, women continue to be subordinated and subjected to violence at the
hands of men.
Part 3: Reservations to the Convention.
Under Article 28 of the Convention, State Parties may submit reservations to specific
Articles. The majority of reservations are to all or parts of Article 2,43 Article 5,44 Article 7,45
Article 9,46 Article 1547 and Article 1648 of the Convention. The rationale for such a
reservation is usually based upon religious grounds often stemming from a conflict with
38 Ibid.
39 The Executive Committee for NGO Forum on CEDAW, Turkey Women’s Platform on the Turkish Penal
Code “Shadow NGO Report on Turkey’s Sixth Periodic Report to the Committee on the Elimination of
Discrimination against Women,” (2010).
http://www2.ohchr.org/english/bodies/cedaw/docs/ngos/WPTPC_Turkey46.pdf
40 Ibid. at 5.
41 Ibid. at 7.
42 Christina Asquith,“Turkish men get away with murder,” (New York Times 2015)
http://www.nytimes.com/2015/02/24/opinion/ozgecan-aslan-and-violence-against-women-in-turkey.html?_r=0
43 Obligation to review and change constitutions,laws and policies.
44 Abolition of discriminatory customs and traditions and of genderstereotyping.
45 Participation in public life.
46 Nationality.
47 Legal capacity.
48 Equality in the family.
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religious law or a constitution that enshrines religious law.49 The main advantage of
reservations is that they provide room for flexibility to incorporate elements of the
Convention into a constitution whilst respecting the multitude of religious and cultural
differences that exist between and within State Parties. In turn, this encourages more countries
to ratify the Convention.
On the other hand, one might contend that reservations to international instruments such as
the Convention ‘limit…transformative potential and the scope of international human rights
standards’.50 This is particularly relevant in the case of broadly drafted reservations to specific
Articles, and in the case of general reservations. For example, the general reservation to the
Convention submitted by Saudi Arabia is that ‘In case of contradiction between any term of
the Convention and the norms of Islamic law, the Kingdom is not under obligation to observe
the contradictory terms of the Convention.’51 In the Committee’s 2008 concluding
observations it concluded that ‘Saudi Arabia is asserting full authority on the basis of religion
to discriminate against women in any of the areas specified in the treaty.’52 Not only does this
general reservation fail to refer to a specific Article of the Convention, it also provides no
explanation of the contents of its national law with which the Convention is ‘contradictory’.
The outcome is a reservation so broad, that it indicates Saudi Arabia has not accepted the
obligations of the Convention, completely undermining its purpose.
Although the Committee frequently calls upon States to withdraw reservations that are
incompatible with the aims of the Convention, there is no mechanism by which such
reservations can be severed or invalidated. In contrast, Article 20 of the International
Convention on the Elimination of All Forms of Racial Discrimination53 reads:
‘A reservation incompatible with the object and purpose of this Convention shall not be
permitted, … A reservation shall be considered incompatible or inhibitive if at least two
thirds of the States Parties to this Convention object to it.’54
49 Marsha Freeman, “Reservations to CEDAW: An analysis for UNICEF,” (December 2009, Policy and practice
discussion paper), ii.
http://www.unicef.org/gender/files/Reservations_to_CEDAW-an_Analysis_for_UNICEF.pdf
50 Siobhan Mullally, Gender, Culture and Human Rights: Reclaiming Universalism, (Hart Publishing 2006) 101.
51The Convention, “Declarations, Reservations and Objections to CEDAW”
http://www.un.org/womenwatch/daw/cedaw/reservations-country.htm
52 The Committee, (2008) “Concluding Observations of the CEDAW Committee”.
http://www.hrw.org/reports/2008/saudiarabia0408/5.htm
53 International Convention on the Elimination of All Forms of Racial Discrimination, 660 U.N.T.S. 195, entered
into force Jan. 4, 1969 at Article 20 (2).
54 Ibid. Article 20 (2).
9
One may argue that the Convention should include a similar Article; the continuance of broad
reservations which undermine the aims of the Convention clearly shows that the method of
the Committee calling upon States Parties to withdraw reservations is inadequate.
There have however been cases in which the Committee have successfully requested
withdrawal of a reservation, leading to its repeal by the State Party. Kuwait provides such
example. At ratification in 1994, it lodged a reservation against Article 7(a) of the
Convention, which requires that “all appropriate measures” be taken to provide women the
right to vote on an equal footing with men. The committee stated that the contradiction
between giving women and men equal rights in the public sphere while simultaneously
denying women the right to vote called for “urgent legal review.”55 By Kuwait’s second
submission in 2010, legislation giving women the right to vote had been passed.
Ultimately, the allowance of reservations limits obligations on State Parties. Additionally, it
gives the impression that the Convention does not have to be strictly implemented, which
could have a domino effect, resulting in other State Parties viewing the Convention as
something which can be ratified but not adhered to. Thus the credibility of the Convention is
undermined, and discrimination against women continues in the countries that have ratified it.
Part 4: Theoretical underpinnings - universalism vs cultural relativism.
As discussed, many of the reservations to the Convention are grounded in religion. To further
evaluate whether the religious and cultural considerations which underpin the State Party
reservations to the Convention ultimately prevent the elimination of discrimination against
women, it is necessary to regard the theoretical underpinnings of feminist critiques of the
human rights discourse.
Reservations to the Convention have demonstrated a contention between the principles of
non-discrimination and freedom to manifest religious and cultural beliefs. The Convention is
reflective of universalism; a core set of human rights norms which are to be applied
universally. On the contrary, those who favour the prevalence of freedom of belief over a
universal application of rights are known as cultural relativists, whose polemic against
universalism is that religious and cultural differences are key factors which supersede core
human rights norms.56 The basis of this belief is that there should be no objective standard by
55 Committee on the Elimination of Discrimination against Women, (January 2004) “Concluding comments of
the Committee on the Elimination of Discrimination against Women: Kuwait,” No. 38 (A/59/38).
56 See Vedna Jivan and Christine Forster, (2005) “What Would Gandhi Say - Reconciling Universalism, Cultural
Relativism and Feminism through Women's Use of CEDAW,” 9 Singapore Year Book of International Law 103
10
which society is ruled owing to entitlement of individuals to manifest the beliefs of their
religion and culture.
Siobhan Mullally notes that many feminists have ‘moved away from universalistic claims and
urged scepticism about the tools and methods of international human rights law’57 and that
‘much contemporary feminist theory urges a return to the local…Universalistic discourses
deny the significance of religious, cultural and other differences.’58
However, one may contend that the Convention does take steps to accommodate for, and
incorporate, the differences between the multifarious positions of women into its provisions.
For example, Article 14 of the Convention refers specifically to rural women who play a
special role in the ‘non-monetized sectors of the economy’59 illustrating a recognition of the
specific needs of a group who are at a particular disadvantage.
Universalism and postmodern feminism could be said to prevent collective action both
nationally and internationally. Arguably, to be successful in achieving its aim of combatting
discrimination against women internationally, the Convention must to a certain extent rely on
universalism. Thus while it is necessary, for the sake of the elimination of discrimination, to
be mindful of the differences between women it is argued by Marchand and Parpart that too
greater a focus on difference can:
…exacerbate differences among women and undermine possibilities for collective
action by women, thus reinforcing the power of patriarchy and reducing the chance
that women can challenge the gender hierarchies and ideologies that construct and
maintain their subordination.60
This notion is corroborated by Maria Nzomo’s assertion that ‘to remove the possibility for
appealing to universal ideals would seriously diminish the strategies available to women for
improving their position in society’61 in support of her wider argument that the postmodernist
approach is contrary to achieving a gender sensitive democratisation in Kenya. Nzomo refers
at 110; Jack Donnelly, (1984) “Cultural Relativism and Universal Human Rights,” 6 Human Rights Quarterly
400.
57 Supra note 41 at 90.
58 Ibid.
59 The Convention, Article 14, para. 1.
60 Op. cit. at 19.
61 Maria Nzomo, “Women and democratization struggles in Africa: What relevance to postmodernist
discourse?,” in Feminism/Postmodernism/Development, 134.
11
to the Convention as a method of convincing a patriarchal society that woman’s demands are
within the basic ideals of democracy.62
Whilst appreciating the need for recognition of the multitude of interlinking contexts within
which the Convention operates, the idea that the Convention has detrimental effects on the
women it seeks to protect seems somewhat unfounded. Without the Convention it is doubtful
that the advances in the protection of women’s human rights and the resulting promotion of
equality and combat against discrimination would have taken place.
Part 5: NGOs and implementation of the Convention.
NGOs have played a big part in the enforcement of the Convention within its signatory
States.63 It has been argued that feminist discussion regarding women’s human rights:
focuses largely on the discourse of the powerful, offers important insights into the
forces silencing women, but it has less to say about the way women actively construct
their own identities within the material and discursive constraints of their lives.’64
NGOs are able to directly connect with the women that are affected by the Convention and to
appreciate the complexity of the construct in which inequality exists. For example, when
Islamic Sharia law was introduced into Northern Nigeria, the international community
thought they could ‘help’ by opposing it. Contrary to this assumption, the women directly
affected by the potential inequalities of the introduction greatly opposed this ‘help’, for
various complicated reasons.65 The NGOs working closely with the women were able to
protect their interests and communicate them to the transnational community. One could
argue that this represents the striking of a positive balance between protections against
discrimination on the one hand and protection of religious and cultural beliefs on the other.
The Women’s Human Rights Alliance have recognised that importance of the role of NGOs
in ensuring that Governments apply the Convention, heralding the benefits of NGO shadow
reports, which enables them to make ‘strategic demands…followed up with specific
indicators of progress’66 instead of just demanding changes in Governmental perspective.
Additionally, NGOs are able to take international measures to a local level. The Convention
62 Ibid.
63 As discussed in Part 2.
64 Marianne Marchand and Jane Parpart, Feminism/Postmodernism/Development, (Routledge 1995), 18.
65 Aili Tripp, “Challenges in transnationalfeminist mobilization”, in Nalini Visvanathan et. al. The Women,
Gender and Development Reader, 2nd ed., (Fernwood Publishing 2011), 403.
66 Woman’s Human Rights Alliance, March 2006, “Taking CEDAW Seriously” A Conference to promote, apply
and enforce the UN CEDAW Convention, Conference Report 14.
http://lastradainternational.org/lsidocs/Taking%20CEDAW%20Seriously-Conference%20Report[1].pdf
12
doesn’t automatically confer rights. It is left down to NGOs to ensure that women are able to
utilise their rights. This does not preclude the success of the Convention itself in eliminating
discrimination against women. The Convention could not practically be expected to
successfully achieve its aims on an international level without aid of NGOs. To do so would
to be to operate in a vacuum, disregarding the vast array of contexts in which discrimination
against women operates and limiting the potential for the elimination of such discrimination.
Conclusion
The Convention has given rise to an international awareness of the discrimination faced by
women. State parties have
13
Bibliography
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March 31, 2011.
Case
Vishaka and others v State of Rajasthan and others (1997) 6 SCC 241.
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Quarterly 400.
Englehart, N and Miller, M. (2014) “The CEDAW Effect: International Law’s Impact on
Women’s Rights”, 13:1 Journal of Human Rights, 22 – 47.
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15
Reports
Committee on the Elimination of Discrimination against Women, (January 2004),
“Concluding comments of the Committee on the Elimination of Discrimination against
Women: Kuwait,” No. 38 (A/59/38).
Committee on the Elimination of Discrimination against women, (October 2013),
“Consideration of reports submitted by States parties under article 18 of the Convention,
Combined fourth and fifth periodic reports of States parties, India,” CEDAW/C/IND/4-5.
Committee on the Elimination of Discrimination against Women, (July 2014), “Concluding
observations on the combined fourth and fifth periodic reports of India,”
CEDAW/C/IND/CO/4-5.
Internet materials
Anderson, L. (June 2011) “TrustLaw Poll: Afghanistan is most dangerous country for
women,” Thomson Reuters Foundation.
http://www.trust.org/item/?map=trustlaw-poll-afghanistan-is-most-dangerous-country-for-
women/
Freeman, M. (2009) “Reservations to CEDAW: An analysis for UNICEF,” (Policy and
practice discussion paper).
http://www.unicef.org/gender/files/Reservations_to_CEDAW-an_Analysis_for_UNICEF.pdf
International Centre for Research on Women (2010) “The Global Impact Of The Convention
Of The Elimination Of All Forms Of Discrimination Against Women.”
http://www.icrw.org/files/publications/Recognizing-Rights-Promoting-Progress-CEDAW.pdf
Waldorf, L. (2007) “CEDAW and the Human Rights Based Approach to Programming,” New
York: United Nations Development Fund for Women.
Saravanan, S. (March 2000), “Violence against Women in India A Literature review,”
Institute of Social Studies Trust.
http://www.isst-india.org/pdf/violence%20against%20women%20india.pdf
Waldorf, L. (2007) “CEDAW and the Human Rights Based Approach to Programming,” New
York: United Nations Development Fund for Women.
http://www.unrol.org/files/CEDAW_HRBA_guide_pt1_eng[1].pdf

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Gender and law essay

  • 1. 1 To what extent has the Convention on the Elimination of All Forms of Discrimination against Women been successful in achieving its aim of eliminating discrimination against women? The Convention on the Elimination of All Forms of Discrimination against Women1 has been seminal in bringing women’s rights to the forefront of international human rights discourse. This is largely owing to the transformative and obligatory nature of the Convention, combined with the fact that it addresses women’s rights within a range of fields which were previously considered ‘private’, permeating to a certain extent the public/private dichotomy that has so frequently precluded State intervention for the purpose of elimination of discrimination against women.2 The Convention has however come under scrutiny for posing a hurdle to proper implementation of its principles in the respective jurisdictions of its State Parties by way of its acceptance of State Party reservations under Article 28.3 The purpose of this essay is to argue that whilst the Convention has successfully combatted discrimination in many of its signatories’ states, ultimately the State Party reservations to the Convention render it largely unsuccessful in the achievement of its ultimate aim; the elimination of discrimination against women.4 In order to come to the aforementioned conclusion, this essay will take the following course. A brief background to the Convention will be provided. Part one will provide an outline of the aims of Convention and the measures it employs to achieve such aims. Part two will provide examples of successful incorporation of the principles of the Convention into national law. Part three will explore the significant hurdle that reservations to the Convention pose to the elimination of discrimination. Part four will explain the theoretical underpinnings of the reservations to the Convention. Part five will discuss the importance of the role of non- governmental organisations in reconciling the universal nature of the convention with the differing circumstances of the women affected by it. This essay will draw to the conclusion that whilst the Convention has succeeded in bringing women’s rights into the forefront of human rights discourse, it has not succeeded in its key aim: the elimination of discrimination against women. 1 Convention on the Elimination of All Forms of Discrimination Against Women (adopted 18 December 1979, entered into force 3 September 1981), 1249 (UNTS) 13, [hereinafter the Convention]. 2 Articles 1 and 3 of the Convention refer specifically to rights in political, economic, social and cultural fields. 3 Article 28, the Convention. 4 For the purposes ofthis essay the definition ‘discrimination against women’ is as defined Article 1 of the Convention and the definition itself will not be disputed.
  • 2. 2 Background Hilary Charlesworth has argued that there is a fundamental gender bias in which human rights are primarily defined according to the criteria of “what men fear will happen to them”5 in their relationship with the state, society, and other men.6 Her view is evidenced by the fact that prior to the Convention, Human Rights instruments have not addressed the specific disadvantages faced by women. This is shocking when one considers that worldwide, women are subjected to discrimination, subordination and inequality as a result of their sex. The Convention seeks to systematically address the areas in which discrimination manifests, culminating in its elimination. Part 1 – The Convention. The Convention differs from other human rights instruments in that it does not just confer additional rights upon those whom it seeks to protect. Instead, it aims to transform the system in which women’s rights are violated by placing the positive obligation on its signatories to ‘take appropriate measures to eliminate discrimination’.7 The transformative nature of the Convention is evident in its systematic address of all forms of discrimination that are inherently pervasive within societies and in its recognition that ‘a change in the traditional role of men as well as the role of women in society and in the family is needed to achieve full equality between men and women’.8 Thus, the Convention seeks to address the problems posed by the widespread existence of deep-rooted inherent discrimination against women.9 A reflection of the Convention’s address of inherent discrimination is evident in Article 2 which determines the positive measures to be undertaken by State Parties for the counterbalancing of the subordinate position of women. It is recognised that existing inequalities between men and women mean that laws, policies and programmes applying to the respective sexes may have to differ in order to achieve equality of outcomes.10 Neutrality is insufficient if it prevents women from exercising their rights on a basis of equality with men.11 Article 2 sets out the positive steps to be taken by signatories to the Convention which 5 Hilary Charlesworth, What are women's international human rights? in Rebecca Cook, Human rights of women: National and international perspectives,(University of Pennsylvania Press 1994). 6 See Niamh Reilly, “Cosmopolitan Feminism and Human Rights,” 22:4 Hypatia, 185. 7 The Convention, Articles 2-16. 8 The Convention, Preamble. 9 See Neil Englehart and Melissa Miller (2014) “The CEDAW Effect: International Law’s Impact on Women’s Rights”, 13:21, Journal of Human Rights, 22-47. 10 Woman’s Human Rights Alliance, March 2006, “Taking CEDAW Seriously”A Conference to promote, apply and enforce the UN CEDAW Convention, Conference Report 14. http://lastradainternational.org/lsidocs/Taking%20CEDAW%20Seriously-Conference%20Report[1].pdf 11 See Woman’s Human Rights Alliance, March 2006, “Taking CEDAW Seriously” A Conference to promote, apply and enforce the UN CEDAW Convention, Conference Report, 13-16.
  • 3. 3 include: the embodiment of the principle of equality through incorporation into national legislation; the abolishment of existing discriminatory legislation; the repeal of constitutional penal codes that amount to discrimination and; the adoption of measures, including legislation, to prohibit discrimination.12 The effect of Article 2 is that State Parties take a proactive approach in applying the principles of the Convention which, as shall be discussed in Part 2 of this essay, has led to significant advances in the elimination of discrimination against women in numerous signatory States. In other countries however the obligatory nature of Article 2 has been undermined by the reservations to the Convention which allow State Parties to opt out of its provisions, usually on religious and cultural grounds, precluding the elimination of discrimination against women.13 A further examination of these reservations will follow, in Part 3 of this essay. Furthermore, it may be contended that the imposition of positive obligations upon State Parties is insufficient insofar as the measure of equality that the measures are seeking to promote is based on the male standard14 which our society is, arguably, built upon; in the eyes of Catherine MacKinnon ‘man, has become the measure of all things.’15 From this perspective, the notion of the concept of ‘equality’ within the Convention being based upon the male standard could in itself be viewed as discriminatory leading to a paradox whereby the Convention contributes towards the very discrimination it sets out to eliminate. Articles 3 through to 16 of the Convention address the spheres in which discrimination against women must be eliminated, recognising that discrimination is often most prevalent and deeply rooted in areas of life such as culture, the family, and interpersonal relations, and that if change does not take place at those fundamental levels, efforts to achieve gender equality will be frustrated.16 Article 13 is particularly encouraging in that it specifically refers to the private aspects of the economic and social sphere, stating that State Parties must take ‘all appropriate measures’17 to eliminate discrimination against women in order to give women and men equal rights to: family benefits18, forms of financial credit19 and, to http://lastradainternational.org/lsidocs/Taking%20CEDAW%20Seriously-Conference%20Report[1].pdf 12 The Convention, Article 2, paragraphs (a),(f), (g), and (b). 13 See Chapter 6, “Opting out of Women’s Human Rights: Reservations to Human Rights Treaties and the Defence of Culture” in Siobhan Mullally, Gender, Culture and Human Rights:Reclaiming Universalism, (Hart Publishing 2006), 89-115. 14 Hilary Charlesworth, Christine Chinkin and Shelley Wright, (1991) “Feminist Approaches To International Law,” 85 American Journal of International Law at 632. 15 Catherine MacKinnon, Feminism Unmodified: Discourses On Life And Law, (Harvard University Press 1987). 16 See Lee Waldorf (2007) “CEDAW and the Human Rights Based Approach to Programming,” New York: United NationsDevelopment Fund for Women, 7-8. 17 The Convention, Article 13. 18 Ibid. para (a).
  • 4. 4 participate in recreational activities, sports and all aspects of cultural life20. Article 16 furthers the recognition of discrimination in the private sphere by addressing issues in marriage and family matters.21 The attention that the Convention pays to the home and family realm is one of its novel aspects. To an extent, the insistence that states take appropriate measures to remove discrimination in the home results in a permeation of the public/private dichotomy which often poses a significant hurdle to women being able to make use of their rights. In turn, this leads to the breaking down of the common view that in international human rights discourse, the protection of the citizen from abuses of power by the State is regarded as of utmost importance, whereas obliging states to use economic resources and put social supports in place in order to fulfil economic and social rights is regarded as secondary.22 Thus, one may argue that Articles 13 and 16 are paramount to the success of the Convention in eliminating discrimination against women owing to its crossover into the private sphere, in which discriminatory trends are so deeply embedded and disturbingly prevalent. Whilst the aforementioned direct intervention within the private sphere conveys the clear message that discrimination on any level is unwelcome, it is not without its negative consequences. Somewhat paradoxically, it has been the stimulus for many of the reservations which, as shall be further elaborated in Part 3, have significantly hindered to success of the Convention in achieving its core aim. The Convention’s systematic address of the spheres in which discrimination against is prevalent cannot however go without merit. It has answered the call for a gender sensitive rights approach, resulting in significant advances for women, and small but significant steps towards equality in its signatories’ jurisdictions, which shall now be considered. Part 2: The Convention in action. The successes of the Convention in achieving the elimination of discrimination against women are apparent in the positive effects it has had for girls and women within the States of its signatories. These effects include the protection of women and girls against violence and trafficking; the prevention of discrimination against women in nationality, inheritance, and property ownership; the promotion of the full participation of women in the economic and political life of their countries; and the advancement of women’s human rights by promoting 19 Ibid. para (b). 20 Ibid. para (c). 21 The Convention, Article 16. 22 Supra note 10, at 4.
  • 5. 5 equality.23 One must deduce that the Convention has been a primary catalyst for great change and reform. Unfortunately, these positive changes are undermined by evidence of continuing discrimination in every single State Party to the Convention, despite ratification. This notion shall now be evidenced by way an exploration of the direct impact the Convention has had on discrimination against women in the States of two illustrative examples: India and Turkey. India The Convention has had small but significant impacts on the position of women in India, a country in which has been labelled as the fourth most dangerous country in the world for women.24 Violence against women is prominent in India, with women being subjected to dowry related violence, ‘honour’ killings, sexual abuse and rape, and acid attacks.25 In the case of Vishaka v Rajasthan26 officials failed to investigate the case of a female victim, a social worker, who was allegedly brutally gang raped when she was visiting a village to investigate a child marriage. The officials claimed that the reason for their lack of investigation was that there were no laws in existence for the protection of women from sexual harassment in the workplace. When numerous women’s organizations became aware of the issue, they filed a case for court enforcement of the rights of women in the workplace. The Indian Supreme Court ruled in their favour, citing Article 11 of the Convention, which obliges state parties to take appropriate measures to eliminate discrimination against women in employment, as the fundamental reason for the crafting of guidelines regarding sexual harassment in the workplace until the passing of legislation.27 Furthermore, in 2005 the government passed the Hindu Succession (Amendment) Act 200528 which amended the Hindu Succession Act of 195629 in order to establish equality in property rights. The preferential treatment of a Son in the inheritance of property is discriminatory and 23 For an elaborate exploration of these positive effects see: International Centre for Research on Women (2010) “The Global Impact Of The Convention Of The Elimination Of All Forms Of Discrimination Against Women,” 5- 15. 24 Lisa Anderson,(June 2011) “TrustLaw Poll: Afghanistan is most dangerous country for women,” Thomson Reuters Foundation. http://www.trust.org/item/?map=trustlaw-poll-afghanistan-is-most-dangerous-country-for-women/ 25 See Sheela Saravanan, (March 2000), “Violence against Women in India A Literature review,” Institute of Social Studies Trust. http://www.isst-india.org/pdf/violence%20against%20women%20india.pdf 26 Vishaka and others v State of Rajasthan and others (1997) 6 SCC 241. 27 Vishaka is a prime example of the significance of the role of NGOs in ensuring State Parties properly implement the Convention, which shall be discussed furtheron in this paper. 28 Parliament of India, Hindu Succession (Amendment) Act 2005. 29 Parliament of India, Hindu Succession Act 1956.
  • 6. 6 contravened specifically Article 15(2) of the Convention. Under the 2005 Act, women, including widows who have remarried, can inherit property on the same terms as men. 30 Despite these advances, in its 2014 concluding observations to India’s combined fourth and fifth reports31 the Committee on the Elimination of Discrimination against Women32 expressed concern over India’s lack of implementation of the Convention and the resulting continuance of discrimination against women.33 In its observations the Committee refers to increase of violent crimes against women, ‘especially rape, kidnapping and abduction, and the high number of cases of rape reported by the National Crime Records Bureau in 2012, indicating an increase by 902.1% since 1971, and on-going impunity for such acts.’34 The Committee also expressed concern that marital rape is still legal where the wife is over the age of fifteen, that the number of acid attacks continues to rise, and that ‘honour’ related crimes continue.35 From this grave information, it is impossible to deduce that the Convention has led to the elimination of discrimination against women. Although there have been positive reforms in property and employment rights for women, the persistence of atrocious crimes against women reflects a clear image of oppression, discrimination and inequality in the signatory State of India. Turkey In Turkey the reporting processes of the Convention have led to the formation of critical political forums between women’s organisations, national and international. These forums have been a significant force for change in Turkey, with 236 women’s organizations coming together in the End Violence Platform.36 Women’s organizations have relied on the Convention in their rallying for the reform civil and penal codes. Their efforts have led to a new penal code37 which includes thirty amendments that offer wider definitions and higher 30 Hindu Succession (Amendment) Act 2005, Section 6. 31 Committee on the Elimination of Discrimination against women, (October 2013), “Consideration ofreports submitted by Statesparties underarticle 18 of the Convention:Combined fourth and fifth periodic reports of Statesparties, India,” CEDAW/C/IND/4-5. 32 [hereinafter the Committee] 33 Committee on the Elimination of Discrimination against Women, (July 2014), “Concluding observations on the combined fourth and fifth periodic reports of India,” CEDAW/C/IND/CO/4-5. 34 Ibid. Para. 10(a). 35 Ibid. Para 10. 36 Women for Women’s Human Rights: New Ways,“National Advocacy.” http://www.wwhr.org/national-advocacy/ 37 Turkish Criminal Code 2004, Law Number 5237,, as last amended by Law Number 6217 of March 31, 2011.
  • 7. 7 sanctions for sexual crimes, the illegalisation of marital rape and prevention of sentence reduction for those who have committed ‘honour’ crimes.38 Despite improvements in the protection of women against violence, in its 2010 shadow report39 The Executive Committee for NGO Forum on CEDAW expressed concern that the amendments were unsatisfactory.40 As in India, ‘honour’ killings in Turkey have continued, in fact, they have been relabelled as ‘killings in the name of custom’ which has resulted in a legal loophole through which certain types of ‘honour’ killings are not covered.41 The dire epidemic of continuing discrimination and violence against women in Turkey has recently received global attention, sparked by the brutal murder or a young woman, Ozgecan Aslan, after she attempted to resist rape. The tragedy caused worldwide protest, with three million people signing an online petition for severe punishment against her attackers. This is just one example. Three hundred women were murdered in Turkey in 2014.42 The situation in Turkey is an example of deeply engrained cultural customs preventing the Convention from achieving its aim of the elimination of the discrimination against women. On the surface, the government applied the principles of the Convention through reformation of its codes. In reality, women continue to be subordinated and subjected to violence at the hands of men. Part 3: Reservations to the Convention. Under Article 28 of the Convention, State Parties may submit reservations to specific Articles. The majority of reservations are to all or parts of Article 2,43 Article 5,44 Article 7,45 Article 9,46 Article 1547 and Article 1648 of the Convention. The rationale for such a reservation is usually based upon religious grounds often stemming from a conflict with 38 Ibid. 39 The Executive Committee for NGO Forum on CEDAW, Turkey Women’s Platform on the Turkish Penal Code “Shadow NGO Report on Turkey’s Sixth Periodic Report to the Committee on the Elimination of Discrimination against Women,” (2010). http://www2.ohchr.org/english/bodies/cedaw/docs/ngos/WPTPC_Turkey46.pdf 40 Ibid. at 5. 41 Ibid. at 7. 42 Christina Asquith,“Turkish men get away with murder,” (New York Times 2015) http://www.nytimes.com/2015/02/24/opinion/ozgecan-aslan-and-violence-against-women-in-turkey.html?_r=0 43 Obligation to review and change constitutions,laws and policies. 44 Abolition of discriminatory customs and traditions and of genderstereotyping. 45 Participation in public life. 46 Nationality. 47 Legal capacity. 48 Equality in the family.
  • 8. 8 religious law or a constitution that enshrines religious law.49 The main advantage of reservations is that they provide room for flexibility to incorporate elements of the Convention into a constitution whilst respecting the multitude of religious and cultural differences that exist between and within State Parties. In turn, this encourages more countries to ratify the Convention. On the other hand, one might contend that reservations to international instruments such as the Convention ‘limit…transformative potential and the scope of international human rights standards’.50 This is particularly relevant in the case of broadly drafted reservations to specific Articles, and in the case of general reservations. For example, the general reservation to the Convention submitted by Saudi Arabia is that ‘In case of contradiction between any term of the Convention and the norms of Islamic law, the Kingdom is not under obligation to observe the contradictory terms of the Convention.’51 In the Committee’s 2008 concluding observations it concluded that ‘Saudi Arabia is asserting full authority on the basis of religion to discriminate against women in any of the areas specified in the treaty.’52 Not only does this general reservation fail to refer to a specific Article of the Convention, it also provides no explanation of the contents of its national law with which the Convention is ‘contradictory’. The outcome is a reservation so broad, that it indicates Saudi Arabia has not accepted the obligations of the Convention, completely undermining its purpose. Although the Committee frequently calls upon States to withdraw reservations that are incompatible with the aims of the Convention, there is no mechanism by which such reservations can be severed or invalidated. In contrast, Article 20 of the International Convention on the Elimination of All Forms of Racial Discrimination53 reads: ‘A reservation incompatible with the object and purpose of this Convention shall not be permitted, … A reservation shall be considered incompatible or inhibitive if at least two thirds of the States Parties to this Convention object to it.’54 49 Marsha Freeman, “Reservations to CEDAW: An analysis for UNICEF,” (December 2009, Policy and practice discussion paper), ii. http://www.unicef.org/gender/files/Reservations_to_CEDAW-an_Analysis_for_UNICEF.pdf 50 Siobhan Mullally, Gender, Culture and Human Rights: Reclaiming Universalism, (Hart Publishing 2006) 101. 51The Convention, “Declarations, Reservations and Objections to CEDAW” http://www.un.org/womenwatch/daw/cedaw/reservations-country.htm 52 The Committee, (2008) “Concluding Observations of the CEDAW Committee”. http://www.hrw.org/reports/2008/saudiarabia0408/5.htm 53 International Convention on the Elimination of All Forms of Racial Discrimination, 660 U.N.T.S. 195, entered into force Jan. 4, 1969 at Article 20 (2). 54 Ibid. Article 20 (2).
  • 9. 9 One may argue that the Convention should include a similar Article; the continuance of broad reservations which undermine the aims of the Convention clearly shows that the method of the Committee calling upon States Parties to withdraw reservations is inadequate. There have however been cases in which the Committee have successfully requested withdrawal of a reservation, leading to its repeal by the State Party. Kuwait provides such example. At ratification in 1994, it lodged a reservation against Article 7(a) of the Convention, which requires that “all appropriate measures” be taken to provide women the right to vote on an equal footing with men. The committee stated that the contradiction between giving women and men equal rights in the public sphere while simultaneously denying women the right to vote called for “urgent legal review.”55 By Kuwait’s second submission in 2010, legislation giving women the right to vote had been passed. Ultimately, the allowance of reservations limits obligations on State Parties. Additionally, it gives the impression that the Convention does not have to be strictly implemented, which could have a domino effect, resulting in other State Parties viewing the Convention as something which can be ratified but not adhered to. Thus the credibility of the Convention is undermined, and discrimination against women continues in the countries that have ratified it. Part 4: Theoretical underpinnings - universalism vs cultural relativism. As discussed, many of the reservations to the Convention are grounded in religion. To further evaluate whether the religious and cultural considerations which underpin the State Party reservations to the Convention ultimately prevent the elimination of discrimination against women, it is necessary to regard the theoretical underpinnings of feminist critiques of the human rights discourse. Reservations to the Convention have demonstrated a contention between the principles of non-discrimination and freedom to manifest religious and cultural beliefs. The Convention is reflective of universalism; a core set of human rights norms which are to be applied universally. On the contrary, those who favour the prevalence of freedom of belief over a universal application of rights are known as cultural relativists, whose polemic against universalism is that religious and cultural differences are key factors which supersede core human rights norms.56 The basis of this belief is that there should be no objective standard by 55 Committee on the Elimination of Discrimination against Women, (January 2004) “Concluding comments of the Committee on the Elimination of Discrimination against Women: Kuwait,” No. 38 (A/59/38). 56 See Vedna Jivan and Christine Forster, (2005) “What Would Gandhi Say - Reconciling Universalism, Cultural Relativism and Feminism through Women's Use of CEDAW,” 9 Singapore Year Book of International Law 103
  • 10. 10 which society is ruled owing to entitlement of individuals to manifest the beliefs of their religion and culture. Siobhan Mullally notes that many feminists have ‘moved away from universalistic claims and urged scepticism about the tools and methods of international human rights law’57 and that ‘much contemporary feminist theory urges a return to the local…Universalistic discourses deny the significance of religious, cultural and other differences.’58 However, one may contend that the Convention does take steps to accommodate for, and incorporate, the differences between the multifarious positions of women into its provisions. For example, Article 14 of the Convention refers specifically to rural women who play a special role in the ‘non-monetized sectors of the economy’59 illustrating a recognition of the specific needs of a group who are at a particular disadvantage. Universalism and postmodern feminism could be said to prevent collective action both nationally and internationally. Arguably, to be successful in achieving its aim of combatting discrimination against women internationally, the Convention must to a certain extent rely on universalism. Thus while it is necessary, for the sake of the elimination of discrimination, to be mindful of the differences between women it is argued by Marchand and Parpart that too greater a focus on difference can: …exacerbate differences among women and undermine possibilities for collective action by women, thus reinforcing the power of patriarchy and reducing the chance that women can challenge the gender hierarchies and ideologies that construct and maintain their subordination.60 This notion is corroborated by Maria Nzomo’s assertion that ‘to remove the possibility for appealing to universal ideals would seriously diminish the strategies available to women for improving their position in society’61 in support of her wider argument that the postmodernist approach is contrary to achieving a gender sensitive democratisation in Kenya. Nzomo refers at 110; Jack Donnelly, (1984) “Cultural Relativism and Universal Human Rights,” 6 Human Rights Quarterly 400. 57 Supra note 41 at 90. 58 Ibid. 59 The Convention, Article 14, para. 1. 60 Op. cit. at 19. 61 Maria Nzomo, “Women and democratization struggles in Africa: What relevance to postmodernist discourse?,” in Feminism/Postmodernism/Development, 134.
  • 11. 11 to the Convention as a method of convincing a patriarchal society that woman’s demands are within the basic ideals of democracy.62 Whilst appreciating the need for recognition of the multitude of interlinking contexts within which the Convention operates, the idea that the Convention has detrimental effects on the women it seeks to protect seems somewhat unfounded. Without the Convention it is doubtful that the advances in the protection of women’s human rights and the resulting promotion of equality and combat against discrimination would have taken place. Part 5: NGOs and implementation of the Convention. NGOs have played a big part in the enforcement of the Convention within its signatory States.63 It has been argued that feminist discussion regarding women’s human rights: focuses largely on the discourse of the powerful, offers important insights into the forces silencing women, but it has less to say about the way women actively construct their own identities within the material and discursive constraints of their lives.’64 NGOs are able to directly connect with the women that are affected by the Convention and to appreciate the complexity of the construct in which inequality exists. For example, when Islamic Sharia law was introduced into Northern Nigeria, the international community thought they could ‘help’ by opposing it. Contrary to this assumption, the women directly affected by the potential inequalities of the introduction greatly opposed this ‘help’, for various complicated reasons.65 The NGOs working closely with the women were able to protect their interests and communicate them to the transnational community. One could argue that this represents the striking of a positive balance between protections against discrimination on the one hand and protection of religious and cultural beliefs on the other. The Women’s Human Rights Alliance have recognised that importance of the role of NGOs in ensuring that Governments apply the Convention, heralding the benefits of NGO shadow reports, which enables them to make ‘strategic demands…followed up with specific indicators of progress’66 instead of just demanding changes in Governmental perspective. Additionally, NGOs are able to take international measures to a local level. The Convention 62 Ibid. 63 As discussed in Part 2. 64 Marianne Marchand and Jane Parpart, Feminism/Postmodernism/Development, (Routledge 1995), 18. 65 Aili Tripp, “Challenges in transnationalfeminist mobilization”, in Nalini Visvanathan et. al. The Women, Gender and Development Reader, 2nd ed., (Fernwood Publishing 2011), 403. 66 Woman’s Human Rights Alliance, March 2006, “Taking CEDAW Seriously” A Conference to promote, apply and enforce the UN CEDAW Convention, Conference Report 14. http://lastradainternational.org/lsidocs/Taking%20CEDAW%20Seriously-Conference%20Report[1].pdf
  • 12. 12 doesn’t automatically confer rights. It is left down to NGOs to ensure that women are able to utilise their rights. This does not preclude the success of the Convention itself in eliminating discrimination against women. The Convention could not practically be expected to successfully achieve its aims on an international level without aid of NGOs. To do so would to be to operate in a vacuum, disregarding the vast array of contexts in which discrimination against women operates and limiting the potential for the elimination of such discrimination. Conclusion The Convention has given rise to an international awareness of the discrimination faced by women. State parties have
  • 13. 13 Bibliography Primary Sources Statutes/Treaties Parliament of India, Hindu Succession (Amendment) Act 2005. Parliament of India, Hindu Succession Act 1956. Convention on the Elimination of All Forms of Discrimination Against Women (adopted 18 December 1979, entered into force 3 September 1981), 1249 (UNTS) 13. Turkey: Criminal Code 2004, Law Number 5237, as last amended by Law Number 6217 of March 31, 2011. Case Vishaka and others v State of Rajasthan and others (1997) 6 SCC 241. Secondary Sources Books Buss, D and Manji, A. International Law: Modern Feminist Approaches, (Hart Publishing 2005). Cook, J. Human rights of women: National and international perspectives, (University of Pennsylvania Press 2004). Hoskyns, C. Integrating Gender: Women, Law and Politics in the European Union, (Verso 1996). Knop, K. Gender and Human Rights, (Oxford University Press 2004). Marchand, M. and Parpart, J. Feminism/Postmodernism/Development, (Routledge 1995). Mullally, S. Gender, Culture and Human Rights: Reclaiming Universalism, (Hart Publishing 2006). Peters, J. and Wolpers, A. Women's rights, human rights : international feminist perspective, (Routledge 1995).
  • 14. 14 Visvanathan, N. et al. The Women, Gender and Development Reader, 2nd ed., (Fernwood Publishing 2011). Journal Articles Afsharipour, A. (1999) “Empowering Ourselves: The Role Of Women's NGOs In The Enforcement Of The Women's Convention,” 99 Columbia Law Revue 129. Brandt, M. and Kaplan, J. (1995) “The Tension between Women's Rights and Religious Rights: Reservations to CEDAW by Egypt, Bangladesh and Tunisia,” 12 Journal of Law and Religion 105. Buenger, M. “Human Rights Conventions And Reservations: An Examination Of A Critical Deficit In The CEDAW,” 20 Buffalo Human Rights Law Revue 67. Charlesworth, H. et al. (1991) “Feminist Approaches To International Law,” 85 American Journal of International Law 613. Clark, B. (1991) “The Vienna Convention Reservations Regime and the Convention on Discrimination Against Women,” 85:2 American Journal of International Law 281. Cohn, M. (2004) “Resisting Equality: Why the U.S. Refuses to Ratify the Women's Convention,” 27 Thomas Jefferson Law Revue 15. Donnelly, J. (1984) “Cultural Relativism and Universal Human Rights,” 6 Human Rights Quarterly 400. Englehart, N and Miller, M. (2014) “The CEDAW Effect: International Law’s Impact on Women’s Rights”, 13:1 Journal of Human Rights, 22 – 47. Hevener, N. (1986) “An analysis of Gender Based Treaty Law: Contemporary Developments in Historical Perspective,” 8 Human Rights Quarterly 70. Jivan, V. and Forster, C. (2005) “What Would Gandhi Say - Reconciling Universalism, Cultural Relativism and Feminism through Women's Use of CEDAW,” 9 Singapore Year Book of International Law 103. Keller, L. (2005) “The Convention On The Elimination Of Discrimination Against Women: Evolution And (Non)Implementation Worldwide,” 27 Thomas Jefferson Law Revue 35. Reilly, N. (2007) “Cosmopolitan Feminism and Human Rights,” 22:4 Hypatia 180.
  • 15. 15 Reports Committee on the Elimination of Discrimination against Women, (January 2004), “Concluding comments of the Committee on the Elimination of Discrimination against Women: Kuwait,” No. 38 (A/59/38). Committee on the Elimination of Discrimination against women, (October 2013), “Consideration of reports submitted by States parties under article 18 of the Convention, Combined fourth and fifth periodic reports of States parties, India,” CEDAW/C/IND/4-5. Committee on the Elimination of Discrimination against Women, (July 2014), “Concluding observations on the combined fourth and fifth periodic reports of India,” CEDAW/C/IND/CO/4-5. Internet materials Anderson, L. (June 2011) “TrustLaw Poll: Afghanistan is most dangerous country for women,” Thomson Reuters Foundation. http://www.trust.org/item/?map=trustlaw-poll-afghanistan-is-most-dangerous-country-for- women/ Freeman, M. (2009) “Reservations to CEDAW: An analysis for UNICEF,” (Policy and practice discussion paper). http://www.unicef.org/gender/files/Reservations_to_CEDAW-an_Analysis_for_UNICEF.pdf International Centre for Research on Women (2010) “The Global Impact Of The Convention Of The Elimination Of All Forms Of Discrimination Against Women.” http://www.icrw.org/files/publications/Recognizing-Rights-Promoting-Progress-CEDAW.pdf Waldorf, L. (2007) “CEDAW and the Human Rights Based Approach to Programming,” New York: United Nations Development Fund for Women. Saravanan, S. (March 2000), “Violence against Women in India A Literature review,” Institute of Social Studies Trust. http://www.isst-india.org/pdf/violence%20against%20women%20india.pdf Waldorf, L. (2007) “CEDAW and the Human Rights Based Approach to Programming,” New York: United Nations Development Fund for Women. http://www.unrol.org/files/CEDAW_HRBA_guide_pt1_eng[1].pdf