|
The United Nations Human Rights Treaties |
How To Complain About Human Rights Treaty ViolationsThe Committee on the Elimination of Discrimination Against Women - Description
1. Overview of the Committee on the Elimination of Discrimination Against Women (CEDAW) The Committee on the Elimination of Discrimination Against Women (CEDAW) is responsible for considering all communications submitted under the Optional Protocol to the Convention. CEDAW is composed of 23 experts, nominated and elected by states parties to the Convention. Members serve in their personal capacity. The Optional Protocol entered into force on 22 December 2000. Although the Committee has not yet considered a complaint, it has formally adopted Rules of Procedure to govern the consideration of individual communications when they are received.To help maintain impartiality in the complaint process, the Rules of Procedure of CEDAW provide that members shall not take part in the deliberation of a case in which they have a personal interest, or in which they have participated in the making of any decision in the case before it reached the Committee (Rule 60). When the Committee considers individual communications, the meetings are closed. (Rule 74) The Committee's Rules of Procedure allow it to make decisions on individual communications by majority. However, the practice of other Committees has been to attempt to reach consensus where possible, and it is likely CEDAW will do the same. In cases where no consensus can be reached, the individual members may express individual Views which are attached to the Committee's decision. (Rules 64, 70,72) a) Working Group The Committee has established a Working Group, composed of five of its members selected on a geographic basis, to assist with the individual communications process. Under the Rules of Procedure working groups can undertake the following functions on behalf of the Committee:
b) Rapporteurs The Committee is also entitled to designate rapporteurs to make recommendations to the Committee in connection with individual cases and to assist in its work under the Optional Protocol. See flow chart for CEDAW Complaints Procedure 2. Individual Complaints Procedure of CEDAW The basic process for submitting a complaint should be read together with the more specific information provided in relation to CEDAW. a) Registration of the Communication and Preliminary Procedures i) Submission of the Communication A communication should be submitted to the Secretariat of the Division for the Advancement of Women in writing, by letter, fax or email. Faxed or electronic communications must be confirmed by signed copies received by the Secretariat. Communications cannot be anonymous. The state that is the subject of the communication must be clearly identified. Although there is no mandatory format for communications, the Committee has created a model communication form for potential complainants. Use of the form can streamline the communication process and is advisable. Where the communication does not provide the necessary information for it to be registered, the Secretariat may request further information from the author. Since the Committee will be relying heavily on the facts in each particular case, it is especially important to set out all the relevant information at the outset. It is important to include, at minimum the following information:
Other important points: Languages The Committee's working languages are at present all six official UN languages, English, French, Spanish, Chinese, Arabic and Russian. Time Limitations There is no stipulated time limit within which to bring a claim, but very long delays in bringing the claim may be considered by CEDAW to lessen the credibility of the claim. Legal Aid The UN does not provide legal aid or financial assistance to authors, nor does CEDAW require that states parties provide legal aid where an individual wishes to submit a communication. Authors should determine whether or not their own domestic legal aid system provides for the possibility of legal aid. However, NGO's and other legal professionals are allowed to represent the victims (with their approval). There is no prohibition on victims seeking assistance from NGO's or appointing them as their representatives. Withdrawal of the Communication Complainants may subsequently withdraw their communications. Confidentiality Decisions concerning inadmissibility, discontinuation or merits (Views) will be made public. The Committee may decide that the identity of the complainant remain confidential. However, the communication must not be anonymous. In order for a communication to be considered, the identity of both the victim and the complainant (if different from the victim) must be revealed to the state party. The author and the state party may make public any submissions or information bearing on the proceedings', provided that the Committee does not expressly ask them to refrain from doing so. At all times the Committee may decide that certain elements of the case must remain confidential. ii) Registration of the Communication Communications will initially be reviewed by the UN secretariat servicing the Committee (the Division for the Advancement of Women) prior to their registration. The secretariat will report to the Working Group of the Committee on the numbers of submissions which on their face do not meet admissibility requirements and whose correspondents which have been so informed by the Secretariat. (CEDAW/C/2002/II/CRP.4) The Secretariat will also report to the Working Group on correspondence which they have redirected to alternative venues including the Office of the High Commissioner for Human Rights. The secretariat may ask the complainant for clarification regarding any or all of the following issues (Rule 58):
The secretariat will indicate a time limit for replying to such requests (Rule 58). Failure to provide adequate information necessary to register a case, may result in a communication not being registered. The Working Group of the Committee will register decisions on the basis of a majority of its members. iii) Transmittal to the State Party Once the secretariat is satisfied the communication contains sufficient information, the communication will be transmitted by the Committee to the state party for a response. iv) Interim Measures At any time after receipt of the communication, the Committee may request the state party to take interim measures to avoid possible irreparable damage to the claimant. Any such requests are not prejudicial to the Committee's final Views (Rule 63), nor are they an indication that the Committee has made any final decision as to the merits of the claim. b) Admissibility and Submissions from the Parties Once the communication has been transmitted to the state party, the state has six months in which to respond to the communication in writing ( Rule 69). According to its Rules of Procedure, the regular practice of the Committee will be to seek a response from the state party simultaneously on both the issue of the admissibility and the merits of the communication. The state party's response will then be transmitted to the author, who will be given an opportunity to comment, within a time frame fixed by the Committee. The Committee may request the state party or the author to submit additional written explanations or statements relevant to the issues of the admissibility or merits and, if it does so, will give the other party an opportunity to comment, again within a fixed time frame. The Committee is also entitled to obtain any documents that may assist in the disposal of the communication (for example, general country information held by NGOs or other United Nations bodies). If it does so, however, the Committee is obliged to offer both parties an opportunity to comment on the information before relying on it (Rule 72). If the Committee thinks it is warranted, the Committee may chose to depart from its ordinary procedure, and to request that the state party's initial written explanation or statement relate only to the admissibility of a communication. It is also possible for the state party to request that the Committee deal separately with the admissibility question. Within two months of receiving a request from the Committee for its response to a communication, the state party may submit a request in writing that the communication be rejected as inadmissible, together with reasons in support of that request. The Committee will then decide whether to accede to the request to deal separately with the admissibility question. However, unless the Committee grants the state party an extension, the state party is still obligated to respond on the merits within the six month time frame. Having given the author a chance to comment on the state party's submission on admissibility, CEDAW will review all the information submitted by the parties, and adopt an admissibility decision. If the Committee decides that the communication is inadmissible, the case is finished. Where a communication has been found to be inadmissible, the author may subsequently seek review of the decision if the circumstances that gave rise to the inadmissibility of the decision no longer exist (Rule 70). If the Committee decides that the communication is admissible, then it will move on to the merits stage. After considering the state party's submissions on the merits, the Committee is entitled to revoke its decision that the communication is admissible (Rule 71). Both parties will be informed of its decision. The Views of the Committee will not necessarily be unanimous. Any member of the Committee may request that his or her individual opinion be attached to the Views of the Committee. c) Follow-up The Committee's Rules of Procedure provide for follow-up of states parties' responses to the Committee's Views (Rule 73). Within six months of the Committee issuing its Views, the state party is directed to submit to the Committee a written response, including information on any action taken in light of the Committee's Views and recommendations. The Committee may subsequently invite the state party to submit further information about measures taken by it, and may request the state party to include relevant information in its subsequent state reports. Under its Rules of Procedure, the Committee is to designate a rapporteur or working group on follow-up. The individual or working group will ascertain the measures taken by states parties in response to the Committee's Views. The Committee is also to include information on follow-up in its Annual Reports to the General Assembly. Important points: Annual Report There is no sanction for failure to comply with the Committee's Views. The Committee will follow the practice adopted by other Committees of giving publicity to its Views and follow-up information through the Committee's Annual Reports to the General Assembly. Reservations Reservations to CEDAW may substantially limit the ability of an individual to successfully make a case against a particular state party. It is therefore necessary to check any reservations made by the state party. At the same time, some reservations may not be compatible with the object and purpose of the treaty. In these cases, it is possible that CEDAW will refuse to apply the reservation in a manner which would limit the application of the Convention in the context of a communication. CEDAW has stated that it considers a number of the reservations that have been made by states parties to be incompatible with the object and purpose of the Convention. The concluding observations of CEDAW which are made following their consideration of a state party's report should, therefore, be consulted for any possible comments concerning a state party's reservations. 3. Examples of Potential Cases Relating to CEDAW The Committee has not yet received or considered any individual communications. The Committee's General Recommendations, provide some assistance to their approach to the interpretation of Convention rights and freedoms, together with their concluding observations on state reports. The following information taken from General Recommendations and concluding observations suggests subject matter for potential communications. At the same time, the application of these general principles and statements to specific circumstances will have to be further developed in the context of an individual case. Definition of "discrimination against women" (article 1) Gender-based violence - Although the Convention nowhere expressly mentions gender-based violence, the Committee considers that it is a form of discrimination that seriously inhibits women's ability to enjoy rights and freedoms on a basis of equality with men. The Committee defines gender-based violence as violence that is directed against a woman because she is a woman, or that affects women disproportionately. It can comprise acts that inflict physical, mental or sexual harm or suffering, threats of such acts, or coercion and other deprivations of liberty. Gender-based violence is "discrimination" in terms of article 1 of the Convention. Its effect on the physical and mental integrity of women is to impair or nullify their equal enjoyment of human rights and fundamental freedoms. These rights and freedoms include rights held under international law such as: the right to life; the right not to be subject to torture or to cruel, inhuman or degrading treatment or punishment; the right to equal protection according to humanitarian norms in time of international or internal armed conflict; the right to liberty and security of the person; the right to equal protection under the law; the right to equality in the family; the right to the highest standard attainable of physical and mental health; and the right to just and favourable conditions of work. Given that gender-based violence amounts to "discrimination" under the Convention, states parties are required under article 2 to condemn and eliminate it, whether perpetrated by public authorities or by private parties. By way of example, the Committee has criticized one state party for allowing in its penal code less than rigorous sanctions or penalties for "honour killings." Honour killings constitute a grave violation of the right to life and security, and therefore must be appropriately addressed under the law. In addition, the Committee considers that numerous other articles in the Convention are involved in gender-based violence, including articles 5, 10(c), 11, 12 and 16. These provisions cumulatively require states parties to act to protect women against violence of any kind occurring within the family, at the workplace or in any other area of social life. (See General Recommendations 12 and 19) Guidance with respect to particular vulnerable groups - The Committee recognizes that, because of the different life experiences of certain groups of women, gender-based discrimination may affect women in different ways. The Committee has emphasized states parties' obligations to eliminate discrimination against particularly vulnerable groups and to ensure their advancement. For example:
Condemnation and elimination of discrimination against women (article 2); and measures to ensure advancement (article 3) Articles 2 and 3, together, establish a comprehensive obligation to eliminate discrimination in all its forms, which is additional to - and wider than - the specific obligations contained under articles 5-16. The Committee has stressed on a number of occasions that it is not sufficient for states parties simply to guarantee rights in their laws. States parties must take measures to ensure that such rights are actually available and able to be exercised. This includes the condemnation and elimination of private discrimination. "Temporary Special Measures" (or affirmative action) (article 4) As embodied in the Convention, temporary special measures (sometimes referred to as affirmative action) means the establishment of law, policies and programmes that give greater advantage to women over men. Such programmes require undermining formal or legal equality for a certain period of time in order to achieve substantive equality in fact in the long term. The provision of maternity leave is not a temporary special measure requiring justification under article 4(1) of the Convention, but is guaranteed under article 4(2). Modification of social and cultural patterns (article 5) Article 5 has been read together with articles 2(f) and 10(c), which cumulatively condemn gender stereotyping. The Committee has drawn particular attention to the role of tradition, culture and gender stereotyping in justifying and perpetuating practices of violence and coercion against women (including family violence and abuse, forced marriage, dowry deaths, acid attacks and female circumcision). Suppression of trafficking in women (article 6) The Committee has drawn attention to new forms of sexual exploitation, such as:
The Committee considers such practices to be incompatible with the equal enjoyment of rights by women, and to put women at special risk of violence and abuse. The Committee has also observed that situations of war and armed conflict often lead to increased prostitution, trafficking in women and sexual assault of women, and that accordingly, specific protective and punitive measures are required in such circumstances. Participation in political and public life (article 7) The obligation of states parties under article 7 extends to all areas of public and political life. The political and public life of a country is a broad concept that refers to:
Rights to vote and be elected (article 7(a)) The enjoyment of the right to vote should not be subject to restrictions or conditions that do not apply to men or that have a disproportionate impact on women. For example, a requirement that voters have a specified level of education or are literate, or possess a minimum property qualification, would violate the Convention if it had a disproportionate impact on women. The rights to vote and to be eligible for election must be enjoyed both in law and in fact. Therefore, states parties must take measures to overcome social or customary impediments to the exercise of these rights. Such impediments might include:
Right to participate in the formulation of government policy (article 7(b)) State parties have responsibilities:
The right to hold public office and to perform public functions (article 7(b)) The Committee has expressed concern over the continued exclusion of women, in many countries, from top-ranking positions in cabinets, the civil service and public administration, and in the judicial and justice systems. The Committee considers that laws are discriminatory which exclude women from:
Participation in non-governmental organizations (article 7(c)) The Committee has expressed particular concern about women's participation in two kinds of organizations that are important vehicles to participation in public life: political parties and trade unions. The Committee considers that states parties are under an obligation to take all appropriate measures, including enactment of legislation, to ensure that such organisations do not discriminate against women. Such organisations should be under an obligation to demonstrate their commitment to the principle of gender equality in their constitutions, in the application of their rules and in the composition of their membership at all levels. With respect to under-representation of women in political parties, the Committee has said that Governments should encourage political parties to adopt effective measures to overcome obstacles to women's participation, including allowing for temporary special measures. (See General Recommendation 23) Representation at international level (article 8) The Committee has stressed that governments are obliged to ensure the presence of women at all levels and in all areas of international affairs, including in economic and military matters, in multilateral and bilateral diplomacy, and in official delegations to international and regional conferences. The Committee has expressed particular concern about the gross under-representation of women in diplomatic and foreign service, particularly at the highest ranks. Restrictions on access to the foreign service pertaining to marital status are discriminatory, as is inequality in the availability of spousal and family benefits. (See General Recommendation 23) Nationality (article 9) Citizenship or nationality is a fundamental right which men and women must be able to enjoy equally, and which is critical to women's full participation in society. Without status as nationals or citizens, women may be deprived of the right to vote or to stand for pubic office, and may be denied access to public benefits and choice of residence. The Committee has indicated that nationality should be capable of change by an adult woman and should not be arbitrarily removed because of marriage or dissolution of marriage, or because her husband or father changes his nationality. Education (article 10) The Committee has noted, for example, that the expulsion of girls from school because they have become pregnant violates the Convention. Employment (article 11) Dismissal on ground of pregnancy - The Committee has pointed out, for example, that the dismissal of unwed teachers who become pregnant is in violation of the Convention. Unpaid women working in family enterprises - The Committee has expressed particular concern about the high percentage of women working without payment, social security or social benefits in rural and urban family enterprises, usually owned by a male member of the family. The Committee considers that unpaid work of this kind constitutes a form of women's exploitation that is contrary to the Convention. Sexual harassment - The Committee considers that sexual harassment in the workplace is a form of gender- specific violence that seriously impairs women's equality in employment. Sexual harassment includes such unwelcome, sexually determined behaviour as:
Such conduct can be humiliating and may constitute a health and safety problem. It is discriminatory when a woman has reasonable grounds to believe that her objection would disadvantage her employment opportunities, including recruitment or promotion, or when it creates a hostile work environment. Equal remuneration for work of equal value - The Committee has stressed the need to ensure the application of the principle of equal remuneration for work of equal value in practice. This may require, for instance, the development and adoption of job evaluation systems based on gender-neutral criteria. Such criteria would facilitate the comparison of the value of jobs of a different nature in which women presently predominate, with jobs in which men presently predominate. Health care (article 12) States are required to eliminate discrimination against women in their access to health-care services throughout the life cycle, particularly in the areas of family planning, pregnancy and confinement, and during the post-natal period. The Committee has emphasized the interconnection between this provision and other articles in the Convention that have a bearing on women's health. (These include articles 5(b), 10, 10(h), 11, 14(2)(b), 14(2)(h), 16(1)(e) and 16(2).) States parties have a responsibility, through legislation, and executive action and policy, to "respect", "protect" and "fulfill" women's rights to health care. They must, in addition, ensure the availability of effective judicial action where rights have been violated. Obligation to "respect" women's rights to health care - The obligation to "respect" requires states parties to refrain from obstructing women's access to health services. Unacceptable restrictions on access to health services include:
Obligation to "protect" women's right to health care - The obligation to "protect" requires states parties, their agents and officials, to take action to prevent violations of rights by private persons and organizations and to impose sanctions for violations. If health service providers refuse to perform certain services based on conscientious objection, the state is obliged to introduce measures to ensure that women are referred to alternative health providers. The Committee has particularly stressed the protective obligation in the context of gender-based violence. In that context, the obligation includes:
The duty to "fulfill" women's right to health care - The duty to "fulfill" places an obligation on states parties to take appropriate legislative, judicial, administrative, budgetary, economic and other measures, to the maximum extent of their available resources, to ensure that women realize their rights to health care. Informed consent - Women have the right to be fully informed, by properly trained personnel, of their options in agreeing to treatment or research, including likely benefits and potential adverse effects of proposed procedures, and available alternatives. States parties are required to prohibit forms of coercion, such as non-consensual sterilization, mandatory testing for sexually transmitted diseases, mandatory pregnancy testing as a condition of employment, and forced gynaecological examinations of women in the investigation of allegations of sexual assault. Female-specific health concerns - Measures undertaken by states parties to eliminate discrimination will be regarded as insufficient if they do not include the provision of services to prevent, detect and treat illnesses specific to women. There are a number of biological, societal and cultural factors that lead to differences between women and men in health status. These include:
Sexual health and HIV / AIDS - The Committee has stressed the need for adolescent girls and women to be provided with adequate access to information, education and services necessary to ensure sexual health. Such information and services should be provided, without prejudice or discrimination, to all women and girls, including those who have been trafficked, and including women who are not legally resident in the country. The Committee has expressed particular concern about discrimination against women in national strategies for the prevention and control of acquired immunodeficiency syndrome (AIDS). Nutrition - The full realization of women's right to health can be achieved only when states parties fulfill their obligation to respect, protect and promote women's fundamental human right to nutritional well-being throughout their lifespan by means of a food supply that is safe, nutritious and adapted to local conditions. To this end, states parties should take steps to facilitate physical and economic access to productive resources, especially for rural women, and to otherwise ensure that the special nutritional needs of all women within their jurisdiction are met. Vulnerable sub-categories of women - The Committee recognizes that societal factors that determine health status can vary among women themselves and believes that the Convention requires that special attention should be given to the health needs of women belonging to vulnerable and disadvantaged groups. Such groups include migrant women, refugees and internally displaced women, women in prostitution, indigenous women, women with physical or mental disabilities, rural women and women trapped in situations of armed conflict. The Committee has also emphasized that appropriate health services need to be provided for women throughout the life cycle, including girl children, adolescents and older women. Privatization of health services - The Committee has indicated that states parties cannot absolve themselves of responsibility in these areas by delegating or transferring the state's health functions to private sectors agencies. Maternity - The Committee has pointed out that it is the duty of states parties to ensure women's right to safe motherhood, including emergency obstetric services. States parties should allocate support to these services to the maximum extent of available resources. (see General Recommendation 24) Equality before the law (article 15) Unequal application of laws - An example of a breach of this article arising from unequal application of laws is the existence of gender-specific laws on adultery. Ability to enter contracts - Impermissible restrictions on this right would include a requirement of the concurrence or guarantee of a male husband or relative before a woman was entitled to enter a contract or have access to financial credit. Ability to bring litigation - Impermissible restrictions on this right include restrictions, resulting from either law or custom, on a woman's:
Domicile - This is a concept used in common law countries to refer to the country in which a person intends to reside and to which jurisdiction she will submit. Domicile is originally acquired by a child through its parents but, in adulthood, denotes the country in which a person normally resides and in which she intends to reside permanently. Domicile, like nationality, should be capable of change at will by an adult woman, regardless of her marital status. Migrant women who live and work temporarily in another country should be permitted the same rights as men to have their spouses, partners and children join them. Marriage and family relations (article 16) The various forms of family - The Committee recognises that the form and concept of the family can vary from state to state and even between regions within a state. Whatever form it takes and whatever the legal system, religion, custom or tradition within the country, the treatment of women in the family, both at law and in private, must accord with the principles of equality and justice for all people. Polygamous marriage - Laws that permit polygamous marriage violate the equality rights of women. Rights to enter marriage and choose a spouse (articles 16(1)(a) and (b)) A woman's right to choose when, if, and whom she will marry must be protected and enforced at law, subject to reasonable restrictions based, for example, on a woman's youth or close familial relationship with her partner. This right can be violated not only by laws but also by custom, tradition and failure of enforcement. Practices of concern to the Committee include:
Equal rights and responsibilities during marriage and at its dissolution (article (16(1)(c))) Common law principles, religious or customary law that restrict women's rights to equal status and responsibility within marriage (for example, by according the husband the status of head of household and primary decision-maker) will contravene the Convention. A failure by the state to give legal protection to women living in unions other than marriage contravenes the Convention. Women living in such relationships should have equality of status with men both in family life and in sharing of income and assets protected by law, and should share equal rights and responsibilities with men for the care and raising of dependent children or family members. Parental responsibilities (article 16(1)(d) and (f)) States parties should ensure that by their laws both parents, regardless of their marital status and whether they live with their children or not, share equal rights and responsibilities for their children. Of particular concern to the Committee is:
Control over reproduction (article 16(1)(e)) The rationale for this protection is that the bearing and raising of children places inequitable burdens of work on women, affects their right of access to education, employment and other activities relating to their personal development, and their physical and mental health. Decisions whether to have children or not, while preferably made in consultation with a spouse or partner, must not be limited by spouse, parent, partner or Government. Coercive practices such as forced pregnancies, abortions or sterilization breach this provision. Equality of personal rights between husband and wife (article 16(1)(g)) The same rights, on a basis of equality of men and women, to choose a profession or employment that is best suited to one's abilities, qualification and aspiration. The same rights, on a basis of equality of men and women, to choose one's name, thereby preserving individuality and identity in the community. A woman is denied these rights when, by law or custom, she is obliged to change her name on marriage or at its dissolution. Equality of property rights between husband and wife (article 16(1)(h)) The right to own, manage, enjoy and dispose of property is central to a woman's right to enjoy financial independence and in many countries will be critical to her ability to earn a livelihood and to provide adequate housing and nutrition for herself and her family. The Committee considers that any law or custom that grants men a right to a greater share of property either during or on dissolution of a marriage or other form of union (de facto relationship), or on the death of a relative, is discriminatory. Property accumulated during a de facto relationship or union should be treated on the same basis as property acquired during marriage. The Committee has expressed the view that on dissolution of marriage, financial and non-financial contributions to property acquired during marriage should be given the same weight. This is because non-financial contributions such as raising children, caring for elderly relatives and discharging household duties may have freed the other partner to earn an income and increase the assets. Regimes that require property owned by a woman during marriage or on divorce to be managed by a man are discriminatory. Such regimes are particularly of concern to the Committee where there is no legal requirement that a woman be consulted when property owned by the parties during marriage or de facto relationship or union is sold or otherwise disposed of. In countries undergoing a programme of agrarian reform or redistribution of land among groups of different ethnic origins, the Committee has said that the right of women, regardless of marital status, to share such redistributed land on equal terms with men should be carefully observed. Discrimination against women in the law and practice concerning inheritance contravenes the Convention. Examples are:
Child marriage (article 16(2)) The Committee considers that the minimum age for marriage should be 18 years for both men and women. Marriage of girls before they have attained full maturity and capacity to act may have adverse affects on health and education and thereby restrict economic autonomy. The Committee is of the view that stipulations of different ages for marriage for men and women should be abolished. Betrothal of girls, or undertakings by family members on their behalf, contravene the Convention and a women's right to freely choose her partner. These substantive examples or illustrations of the substance of possible future cases, which are suggested from CEDAW's General Recommendations and concluding observations on state reports, are not exhaustive. Individuals are entitled to make many more kinds of claims on the basis of the rights in the Women's Discrimination Convention. |