PROTECTION OF WOMEN THROUGH CEDAW by Rishabh Singh at LexCliq

INTRODUCTION:

The United Nations adopted the Convention on the Elimination of All Forms of Discrimination against Women over thirty years ago. It has been an important tool used by national and international advocates for the equality of women. The Committee established under the Convention has played a significant role in encouraging the implementation of the treaty. This article provides an overview of the Convention’s impact resulting from its use by Governments and civil society. The article first provides an overview of the challenges involved in identifying and evaluating the impact of human rights treaties and sets out the indicators used to evaluate the Convention’s impact on domestic law and practice in the States chosen for this analysis.

Recalling that discrimination against women breaches the principles of equality of rights and respect for human dignity, it is an impediment to women participating in the political, social, economic, and cultural life of their nations on an equal footing with men, it stifles the progress of society and the family, and it makes the full development of the potentialities of women more difficult. For the welfare, and progress of the country maximum participation of women in political, economic and social matters on equal terms with men are very essential. CEDAW was formed to ensure this change required from the traditional times with the modern times way and aspects of work and progress. India signed CEDAW in July 1993, according to the United Nations, with two statements that the Netherlands deemed “incompatible with the object and purpose of the convention [on the elimination of all kinds of discrimination against women].” 2013 (United Nations). The Indian constitution specifies that the government would work to promote international law and treaty responsibilities. But due to the India’s Dualist approach, the implementation of even ratified international treaties and laws are not binding unless some extreme measure through statutes are made to internalise these foreign treaties. Discrimination against women is defined as any differentiation, exclusion, or limitation based on sex that has the effect or intent of impeding or nullifying the recognition, enjoyment, or exercise by women, irrespective of their marital status, of human rights and basic freedoms in the political, economic, social, cultural, civic, or any other sphere, on the basis of equality of men and women. CEDAW is referred to as one of the basis of the international bill of rights. It is one of the United Nations’ basic international human rights treaties, requiring Member States to commit to legal commitments to respect, defend, and fulfil human rights. It has been ratified or acceded to by 189 members. The Convention on the Elimination of Discrimination Against Women (CEDAW) is a convention dedicated only to gender equality. The treaty is overseen by the Group for the Elimination of Discrimination Against Women, a 23-member expert committee. The members are chosen by state parties and have a four-year term. CEDAW mandates that member nations not only have no discriminatory legal framework in place, but also that their laws and policies be not discriminatory in practise. It emphasises the distinction between formal and substantive equality for men and women. The CEDAW Convention establishes high criteria for women’s equality and non-discrimination. It also establishes key normative criteria for food, health, education, housing, legal capacity, non[1]discrimination, political participation, and egalitarian family connections, all of which are integral to the Agenda 2030 for sustainable development. SDG 5 focuses on achieving global gender equality by 2030.

 

MEMBER STATE RESPONSIBILITIES:

A country becomes a party to the Convention when it agrees to take all reasonable steps to eliminate discrimination against women and promote gender equality.

  • The member’s responsibility extends to both public and private life.
  • This is significant because one of the most significant barriers to attaining equality has been the belief that the government should not meddle with private property.
  • The Convention on the Elimination of Discrimination Against Women (CEDAW) requires states to guarantee that women are not discriminated against in the private spheres of marriage and family life.
  • CEDAW recognises that uneven power relations in the private sphere play a significant role in gender inequality in all aspects of women’s life, and it urges States to take steps to address this imbalance.

The Convention’s Article 1 declares the following to define what is meant as a discrimination against women. “For the purposes of the present Convention, the term “discrimination against women” shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.”

PRINCIPLES OF CEDAW:

 

1.Substantive Equality– Gender stereotypes forges a difference between men and women by showcasing men as the superior and women as the weak, emotional and in dire need of protection. But in reality, both men and women shares the same attributes and traits except for the reproductive system and parts. UN believes that the only difference between a female and male is their biological differences and nothing except that can differentiate between the two gender. Due to the patriarchal nature, only 17 % of the Parliament is been represented by women, one out of every three women are abused also usually by someone close to her, two[1]third of the world’s illiterate are women, 39% of times women has been treated violently and abusively by their husbands, 10 million more girls are out of school compared to boys. Some people argues the requirement for men to have more rights due to their input towards the family from economic level and provide them with the required resources as they are the only member of a family on whose shoulders lies the responsibility of taking care of the family.

But in reality, we can see married or unmarried, divorced or widowed, separated or abandoned, women are responsible enough to take care of themselves and earn a proper living to sustain their family, from both household and outdoor activities, resulting in an equal share of the liability of the upbringing of a family. In south East Asia many households are headed by women and are running successfully. 70% of world’s poor are basically women. The formal approach of equality for women, denies the fact that women and men are different in some biological aspects and follows the male standards disregarding women of their special needs. In the protectionist approach, women lose opportunities because they are perceived as vulnerable and prohibited from participating in certain activities. In corrective approach, priority is given to both the needs and requirements for men and women. Corrective approach leads to substantive equality. It recognises differences but affirms equality between men and women by pulling up women from places where they are facing gender based discriminations. It places an obligation to correct the environment, evens out the playing field and implements laws and policies to include gender perspective. Substantive equality ensures that women have opportunities and rights and opportunities to access these rights and opportunities with equality in getting results and benefits.

 

2.Non- Discrimination- Most countries have signed the CEDAW Convention which means they have given their commitment to respect, support, protect, promote and fulfil the rights of women in their respective countries. However, still the practice of discrimination continues to exist both directly and indirectly. Many countries practice Nationality Laws that directly discriminate against women and children. For example, fathers are allowed by law to transfer their citizenship to their children but mothers cannot.

Without citizenship, the child is excluded from facilities of health care, education and other services offered to citizens. Indirect discrimination comes from gender neutral laws and policies which seems to give equal opportunities and access to both men and women but in practice, women are disadvantaged due to historical discrimination caused by the patriarchal system. Patriarchy is a social system in which the role of the men as the primary authority figure is the central of the organisation which results in fathers holding authority over women, children and property. It implies the institution of male rule and privilege and is dependent on female subordination. In the patriarchal system, male traits are more valued than female traits as we can refer to instances where men are ordered not to behave like girls. This happens because patriarchy perceives women as weak and is thus valued less as compared to men. In many countries, women faces many obstacles and restrictions due to cultural and religious practices resulting in women suffering historical discrimination like female genital mutilation. It is very important to note that non discrimination against women should occur from both types that is de facto(in respect to the law) and de jure(in respect to reality).

 

3.Principle of State Obligation- The CEDAW Convention is one of the most widely ratified and recognized UN Treaties worldwide. 188 countries as of May 2014 has signed the CEDAW Convention. Countries that have signed CEDAW Convention makes the government of those countries a state party to the CEDAW and has agreed to take measure to improve women status in their country. Therefore, these countries try that the three parts of government that is legislative, executive and judiciary work hand in hand as that is very essential to ensure safety and protection of women and their rights. When the countries signed the CEDAW Convention, it became a legally binding document and the State is obligated to subscribe to the Articles of the Convention and effectively implement it as soon as possible. The State has to respect the rights of women and cannot do anything that violates their rights and cannot enact discriminatory laws, cannot engage in discriminatory practices and has to repeal all discriminatory laws.

Every 4 years, the States have to report to the CEDAW Committee on the measures taken to ensure and protect and fulfil the rights of women. State has to protect the rights of the women, ensure complaints and redress mechanisms, regulates institutions and individuals, prohibit discrimination and impose sanctions against discriminatory acts. The State has to promote the rights of women and it must raise awareness of women’s rights in the country. The State has to fulfil the rights of women, take positive steps and provide enabling conditions, develop capacity of its institutions, build women’s ability to ensure equality and remove hurdles that women face to ensure both de jure and de facto equality. This also makes it a compulsory for the State to implement temporary special measures taken to temporary advantages to women in order to excel the women’s qualities and address the historical discriminations. State party to the CEDAW Convention must act with due diligence making the State accountable to any discrimination against women, whether she is in private or public sphere.

CASE LAW:

In Mohammad Yunis Vs. Malooki Widow of Nabi Khan and Ors,2003 and Prem Chand Vs. Ram Nath Deceased Through and Lrs., 2014, it was declared that due to the provisions of Article 2 (f) and other related Articles under CEDAW, the liability lies on the State to ensure the provisions to eradicate the discrimination against women through appropriate measures, laws etc. But unfortunately, India fails to implement the provisions under CEDAW and the result of which, even after ratifying the Convention, there is no change or rather in the gender based discrimination against women.

 

CONCLUSION:

CEDAW is significant since it makes it a member state’s duty to adopt nondiscriminatory laws and practices. It also discusses substantive equality, not just formal equality, as previously stated. Even in the twenty-first century, many women endure prejudice in a variety of areas, including healthcare, education, respectable job, free marriage, equal pay for equal effort, and so on. They are also subjected to violence by family members and partners. When it comes to sexual and reproductive decisions, they frequently have little say. It is critical that governments in power pass laws that promote gender equality in the broadest sense, as well as encourage women to live full lives to the best of their skills and potential. This is not only a basic human right, but it is also a requirement for society’s actual economic and social growth.

There is a prologue to CEDAW, as well as 30 articles. Discrimination, direct or indirect forms of VAW, and girls are addressed in every article of the Convention. The Committee’s responsibilities include monitoring, eliminating, and tracking VAW and girls. Although there is no explicit condemnation of VAW in the Convention, implicative language is used throughout. Individual governments are responsible for enacting CEDAW. Within a sovereign state, neither the United Nations nor any other entity has the jurisdiction to enforce the Convention. States must accept responsibility for their faults and act positively to advice. The purpose of CEDAW is to protect the rights of women and girls in all countries that have signed the Convention. This is accomplished through a variety of measures, including increased state accountability and their responsibility in ensuring the Convention’s implementation, the Constructive Dialogue process, the issue of Concluding Observations, individual/group complaints, follow-up enquiries, and General Recommendations.

REFERENCES:

  • Rana, B., & Perrie, V. (2019). 70 YEARS OF DEVELOPMENT: THE WAY FORWARD (pp. 111-130, Rep.) (Aneel S., Haroon U., & Niazi I., Eds.). Sustainable Development Policy Institute. Retrieved May 21, 2021, from http://www.jstor.org/stable/resrep24393.12
  • Freeman, M. (1997). The Human Rights of Women under the CEDAW Convention: Complexities and Opportunities of Compliance. Proceedings of the Annual Meeting (American Society of International Law), 91, 378-383. Retrieved May 21, 2021, from http://www.jstor.org/stable/25659151
  • Ross, S. (2008). CEDAW in Practice. In Women’s Human Rights: The International and Comparative Law Casebook (pp. 326-368). University of Pennsylvania Press. Retrieved May 21, 2021, from http://www.jstor.org/stable/j.ctt4cghpn.14

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