WOMEN & CHILD LAWS

Convention on the
Elimination of All Forms of
Discrimination against
Women

TABLE OF CONTENTS
1. INTRODUCTION
2. HISTORY-CEDAW..
3. RESERVATIONS TO CEDAW
Impermissible Reservations...
Removing Reservations.
4. THE ROLE OF THE COMMITTEE..
5. WHAT ARE THE PRINCIPLES OF CEDAW?.............................................
Substantive equality
Non-discrimination
State obligation
6. THROUGH THE EYES OF WOMEN? JURISPRUDENCE OF THE
CEDAW COMMITTEE.
Considerations and Interpretations
Opportunities and Progress
Family Violence
Due Diligence.
The Balancing of Competing Rights
Reproductive Rights
Gender Stereotyping

7. CEDAW AND THE IMPACT ON VIOLENCE AGAINST WOMEN IN

INDIA
8. BIBLIOGRAPHY

INTRODUCTION
CEDAW, the Convention on the Elimination of All Forms of Discrimination against
Women,1 is one of the most widely ratified human rights treaties in history, 2 yet many view it
as a failure in terms of what it has achieved for women.3 In spite of the lack of a meaningful
enforcement mechanism4 and various other shortcomings,5 however, CEDAW has inspired
feminist activism around the world6and helped raise womens legal consciousness.7 Of
1

Convention on the Elimination of All Forms of Discrimination Against Women, opened for signature Mar. 1,
1980, 1249 U.N.T.S. 13 (entered into force Sept. 3, 1981) [hereinafter CEDAW].
2
See Short History of CEDAW Convention, U.N. DIVISION ADVANCEMENT WOMEN,
http://www.un.org/womenwatch/daw/cedaw/history.htm (last visited Jan. 3, 2012).
3
See, e.g., Sandra Coliver, United Nations Machineries on Womens Rights: How Might They Better Help
Women Whose Rights Are Being Violated?, in NEW DIRECTIONS IN HUMAN RIGHTS 25, 3844 (E.L. Lutz et al.
eds., 1989) *hereinafter Coliver+ (comparing the Womens Convention with the Human Rights Commission
(HRC) and criticizing the failure of CEDAW to agree on minimum standards); Anne F. Bayefsky, The CEDAW
Convention: Its Contribution Today, 94 AM. SOCY INTL L. PROC. 197, 200 (2000) (arguing that CEDAW fails to
define discrimination, and that instead of promoting equality, it promotes a radical feminist agenda and
refuses to recognize any legitimate distinction between men and women); Tracy E. Higgins et al., Gender
Equality and Customary Marriage: Bargaining in the Shadow of Post-Apartheid Legal Pluralism, 30 FORDHAM
INTL L.J. 1653, 1660 (2007) (quoting U.N. Comm. on the Elimination of Discrimination Against Women,
General Recommendation 21, Equality in Marriage and Family Relations, 13, U.N. Doc A/49/38 at art.
16(1)(a) and (b), comm. 15 (1994) *hereinafter General Recommendation 21+ (*A+lthough most countries
report that national constitutions comply with CEDAW, custom, tradition and *states+ failure to enforce these
laws in reality contravene the Convention.) (alteration in original); Nancy Kim, Toward a Feminist Theory of
Human Rights: Straddling the Fence Between Western Imperialism and Uncritical Absolutism, 25 COLUM.
HUM. RTS. L. REV. 49, 7982 (1993) (pointing out weak enforcement provisions of CEDAW and problems with
too many countries having entered substantive reservations to its provisions); Susan Smolens, Violence Against
Women: Consciousness and Law in Four Central European Emerging DemocraciesPoland, Hungary, Slovakia,
and the Czech Republic, 15/16 TUL. EUR. & CIV. L.F. 1, 8 (20002001) (arguing that CEDAW was a failure from
the beginning); Jennifer T. Sudduth, CEDAWs Flaws: A Critical Analysis of Why CEDAW Is Failing to Protect a
Womans Right to Education in Pakistan, 38 J.L. & EDUC. 563, 563 (2009) (arguing that CEDAW failed to protect
a womans right to education in Pakistan); Amanda Ulrich, Can the Worlds Poorest Women Be Saved?: A
Critical Third World Feminist Analysis of the CEDAWs Rural Womens Economic Rights and Alternative
Approaches to Womens Economic Empowerment, 45 ALBERTA L. REV. 477, 49293 (2007) (arguing that
CEDAW failed to take into account status and societal context of rural woman, making it unlikely to help rural
women reach their full economic potential without attention to local practices concerning power structures,
co-ops, and other self-help groups).
4
See MARILOU MCPHEDRAN ET AL., THE FIRST CEDAW IMPACT STUDY: FINAL REPORT 2526 (2000), available
at http://iwrp.org/projects/cedaw/; Jessica Neuwirth, Inequality Before the Law: Holding States Accountable
for Sex Discriminatory Laws Under the Convention on the Elimination of All Forms of Discrimination Against
Women and Through the Beijing Platform for Action, 18 HARV. HUM. RTS. J. 19, 40 (2005) (stating that lack of
public visibility of monitoring process only makes it more difficult to hold states accountable).
5
See, e.g., Johanna E. Bond, Gender, Discourse, and Customary Law in Africa, 83 S. CAL. L. REV. 509, 52528
(2010) (discussing several flaws of CEDAW, most notably that it treats culture as a uniformly negative
influence on womens lives).
6
See, e.g., Casey Truelove, UN Commission on the Status of Women Celebrates 15th Anniversary of the Beijing
Declaration and Platform for Action, 55 HUM. RTS. ADVOCS. 2, 3 (2010), available
at http://www.humanrightsadvocates.org/wp-content/uploads/2010/05/HRA_Vol55.pdf; Michele Grigolo, The
CEDAW Ordinance of San Francisco: Mainstreaming, Translating and Implementing Womens Human Rights at
the
City
Level,
(Nov.
2008)
(unpublished
manuscript),
available
at www.fondazionefeltrinelli.it/dm_0/FF/FeltrinelliCmsPortale/0389.pdf.

course, CEDAW is widely seen as a product of feminist activism, but this essay explores the
Conventions role as an expressive document, which has fosteredboth directly and
indirectlyfeminist activism in rural parts of both developed and developing countries.
The Convention on the Elimination of All Forms of Discrimination against Women
(CEDAW), adopted in 1979 by the UN General Assembly, is often described as an
international bill of rights for women. Consisting of a preamble and 30 articles, it defines
what constitutes discrimination against women and sets up an agenda for national action to
end such discrimination.
The Convention defines discrimination against women as "...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."
By accepting the Convention, States commit themselves to undertake a series of measures to
end discrimination against women in all forms, including:

to incorporate the principle of equality of men and women in their legal system,
abolish all discriminatory laws and adopt appropriate ones prohibiting discrimination
against women;

to establish tribunals and other public institutions to ensure the effective protection of
women against discrimination; and

to ensure elimination of all acts of discrimination against women by persons,

organizations or enterprises.

The Convention provides the basis for realizing equality between women and men through
ensuring women's equal access to, and equal opportunities in, political and public life -including the right to vote and to stand for election -- as well as education, health and
employment. States parties agree to take all appropriate measures, including legislation and
7

See generally SALLY ENGLE MERRY, HUMAN RIGHTS AND GENDER VIOLENCE: TRANSLATING INTERNATIONAL
LAW INTO LOCAL JUSTICE (2006) (analyzing in part the role CEDAW has played in promoting human rights and
curtailing violence against women in male dominated cultures); Sally Engle Merry, New Legal Realism and the
Ethnography of Transnational Law, 31 LAW & SOC. INQUIRY 975, 977 (2006) (discussing how human rights
ideas move from the realm of the transnational to the local, where they may be appropriated by social
movements and in some places become part of everyday legal consciousness).

temporary special measures, so that women can enjoy all their human rights and fundamental
freedoms.
The Convention is the only human rights treaty which affirms the reproductive rights of
women and targets culture and tradition as influential forces shaping gender roles and family
relations. It affirms women's rights to acquire, change or retain their nationality and the
nationality of their children. States parties also agree to take appropriate measures against all
forms of traffic in women and exploitation of women.
Countries that have ratified or acceded to the Convention are legally bound to put its
provisions into practice. They are also committed to submit national reports, at least every
four years, on measures they have taken to comply with their treaty obligations.8
HISTORY-CEDAW
Equality of rights for women is a basic principle of the United Nations. The Preamble to the
Charter of the United Nations sets as one of the Organization's central goals the reaffirmation
of "faith in fundamental human rights, in the dignity and worth of the human person, in the
equal rights of men and women". Article 1 proclaims that one of the purposes of the United
Nations is to achieve international cooperation in promoting and encouraging respect for
human rights and for fundamental freedoms for all without distinction as to, inter alia, sex.
By the terms of the Charter, the first international instrument to refer specifically to human
rights and to the equal rights of men and women, all members of the United Nations are
legally bound to strive towards the full realization of all human rights and fundamental
freedoms. The status of human rights, including the goal of equality between women and
men, is thereby elevated: a matter of ethics becomes a contractual obligation of all
Governments and of the UN.
The International Bill of Human Rights strengthens and extends this emphasis on the human
rights of women. The Universal Declaration of Human Rights proclaims the entitlement of
everyone to equality before the law and to the enjoyment of human rights and fundamental
freedoms without distinction of any kind and proceeds to include sex among the grounds of
such impermissible distinction. The International Covenant on Economic, Social and Cultural
Rights and the International Covenant on Civil and Political Rights, both of 1966, which
translate the principles of the Declaration into legally binding form, clearly state that the
8

http://www.un.org/womenwatch/daw/cedaw/

rights set forth are applicable to all persons without distinction of any kind and, again, put
forth sex as such a ground of impermissible distinction. In addition, each Covenant
specifically binds acceding or ratifying States to undertake to ensure that women and men
have equal right to the enjoyment of all the rights they establish.
The International Bill of Human Rights, combined with related human rights treaties, thus
lays down a comprehensive set of rights to which all persons, including women, are entitled.
However, the fact of women's humanity proved insufficient to guarantee them the enjoyment
of their internationally agreed rights. Since its establishment, the Commission on the Status
of Women (CSW) has sought to define and elaborate the general guarantees of nondiscrimination in these instruments from a gender perspective. The work of CSW has resulted
in a number of important declarations and conventions that protect and promote the human
rights of women.
Originally established in 1946 as a sub commission of the Commission on Human Rights, but
quickly granted the status of full commission as a result of the pressure exerted by women's
activists, the mandate of the CSW included the preparation of recommendations relating to
urgent problems requiring immediate attention in the field of women's rights with the object
of implementing the principle that men and women should have equal rights, and the
development of proposals to give effect to such recommendations. Between 1949 and 1959,
the Commission elaborated the Convention on the Political Rights of Women, adopted by the
General Assembly on 20 December 1952, the Convention on the Nationality of Married
Women, adopted by the Assembly on 29 January 1957, the Convention on Consent to
Marriage, Minimum Age for Marriage and Registration of Marriages adopted on 7 November
1962, and the Recommendation on Consent to Marriage, Minimum Age for Marriage and
Registration of Marriages adopted on 1 November 1965. Each of these treaties protected and
promoted the rights of women in areas in which the Commission considered such rights to be
particularly vulnerable. But it was believed that, except in those areas, women's rights were
best protected and promoted by the general human rights treaties.
Although these instruments reflected the growing sophistication of the UN system with
regard to the protection and promotion of women's human rights, the approach they reflected
was fragmentary, as they failed to deal with discrimination against women in a
comprehensive way. In addition, there was concern that the general human rights regime was
not, in fact, working as well as it might to protect and promote the rights of women. Thus, the

General Assembly, on 5 December 1963, adopted its resolution 1921 (XVIII), in which it
requested the Economic and Social Council to invite the CSW to prepare a draft declaration
that would combine in a single instrument international standards articulating the equal rights
of men and women. This process was supported throughout by women activists within and
outside the UN system. Drafting of the declaration, by a committee selected from within the
CSW, began in 1965, with the Declaration on the Elimination of Discrimination against
Women ultimately being adopted by the GA on 7 November 1967. Although the Declaration
amounted only to a statement of moral and political intent, without the contractual force of a
treaty, its drafting was none the less a difficult process. Article 6, concerning equality in
marriage and the family, and article 10, relating to employment, proved to be particularly
controversial, as did the question of whether the Declaration should call for the abolition of
the customs and laws perpetuating discrimination or for their modification or change.
The 1960s saw the emergence, in many parts of the world, of a new consciousness of the
patterns of discrimination against women and a rise in the number of organizations
committed to combating the effect of such discrimination. The adverse impact of some
development policies on women also became apparent. In 1972, five years after the adoption
of the Declaration and four years after the introduction of a voluntary reporting system on the
implementation of the Declaration by the Economic and Social Commission, the CSW
considered the possibility of preparing a binding treaty that would give normative force to the
provisions of the Declaration and decided to request the Secretary-General to call upon UN
Member States to transmit their views on such a proposal. The following year, a working
group was appointed to consider the elaboration of such a convention. In 1974, at its twentyfifth session and in the light of the report of this working group, the Commission decided, in
principle, to prepare a single, comprehensive and internationally binding instrument to
eliminate discrimination against women. This instrument was to be prepared without
prejudice to any future recommendations that might be made by the United Nations or its
specialized agencies with respect to the preparation of legal instruments to eliminate
discrimination in specific fields.
The text of the Convention on the Elimination of All Forms of Discrimination against
Women was prepared by working groups within the Commission during 1976 and extensive
deliberations by a working group of the Third Committee of the General Assembly from
1977 to 1979. Drafting work within the Commission was encouraged by the World Plan of

Action for the Implementation of the Objectives of the International Women's Year, adopted
by the World Conference of the International Women's Year held in Mexico City in 1975,
which called for a convention on the elimination of discrimination against women, with
effective procedures for its implementation. Work was also encouraged by the General
Assembly which had urged the Commission on the Status of Women to finish its work by
1976, so that the Convention would be completed in time for the 1980 Copenhagen middecade review conference (World Conference on the United Nations Decade for Women:
Equality, Development and Peace). Although suggestions were made to delay completion of
the text for another year, the Convention on the Elimination of All Forms of Discrimination
against Women was adopted by the General Assembly in 1979 by votes of 130 to none, with
10 abstentions. In resolution 34/180, in which the General Assembly adopted the Convention,
the Assembly expressed the hope that the Convention would come into force at an early date
and requested the Secretary-General to present the text of the Convention to the mid-decade
World Conference of the United Nations Decade for Women.
At the special ceremony that took place at the Copenhagen Conference on 17 July 1980, 64
States signed the Convention and two States submitted their instruments of ratification. On 3
September 1981, 30 days after the twentieth member State had ratified it, the Convention
entered into force - faster than any previous human rights convention had done - thus
bringing to a climax United Nations efforts to codify comprehensively international legal
standards for women.9
RESERVATIONS TO CEDAW
The Convention permits ratification subject to reservations, provided that the reservations are
not incompatible with the object and purpose of the Convention. Some States parties that
enter reservations to the Convention do not enter reservations to analogous provisions in
other human rights treaties. A number of States enter reservations to particular articles on the
ground that national law, tradition, religion or culture are not congruent with Convention
principles, and purport to justify the reservation on that basis. Some States enter a reservation
to article 2, although their national constitutions or laws prohibit discrimination. There is
therefore an inherent conflict between the provisions of the State's constitution and its

extracted from Progress achieved in the implementation of the Convention on the Elimination of All Forms of
Discrimination against Women: Report by the Committee on the Elimination of Discrimination against Women
(A/CONF.177/7).

reservation to the Convention. Some reservations are drawn so widely that their effect cannot
be limited to specific provisions in the Convention.
IMPERMISSIBLE RESERVATIONS
Article 28, paragraph 2, of the Convention adopts the impermissibility principle contained in
the Vienna Convention on the Law of Treaties. It states that a reservation incompatible with
the object and purpose of the present Convention shall not be permitted.
Although the Convention does not prohibit the entering of reservations, those which
challenge the central principles of the Convention are contrary to the provisions of the
Convention and to general international law. As such they may be challenged by other States
parties.
Articles 2 and 16 are considered by the Committee to be core provisions of the Convention.
Although some States parties have withdrawn reservations to those articles, the Committee is
particularly concerned at the number and extent of reservations entered to those articles.
The Committee holds the view that article 2 is central to the objects and purpose of the
Convention. States parties which ratify the Convention do so because they agree that
discrimination against women in all its forms should be condemned and that the strategies set
out in article 2, subparagraphs (a) to (g), should be implemented by States parties to eliminate
it.
Neither traditional, religious or cultural practice nor incompatible domestic laws and policies
can justify violations of the Convention. The Committee also remains convinced that
reservations to article 16, whether lodged for national, traditional, religious or cultural
reasons, are incompatible with the Convention and therefore impermissible and should be
reviewed and modified or withdrawn.
REMOVING RESERVATIONS
The Committee considers that those States parties which have entered reservations to the
Convention have certain options open to them. According to the Special Rapporteur
appointed by the International Law Commission to report on the law and practice relating to
reservations to treaties a State party may:
(a) After having examined the finding in good faith, maintain its reservation;

(b) Withdraw its reservation;

(c) "Regularize" its situation by replacing its impermissible reservation with a permissible
reservation;
(d) Renounce being a party to the Treaty.
To date, few reservations to article 2 have been withdrawn or modified by any State party and
that reservations to article 16 are rarely withdrawn.
THE ROLE OF THE COMMITTEE
The Committee has certain responsibilities as the body of experts charged with the
consideration of periodic reports submitted to it. The Committee, in its examination of States'
reports, enters into constructive dialogue with the State party and makes concluding
comments routinely expressing concern at the entry of reservations, in particular to articles 2
and

16,

or

the

failure

of

States

parties

to

withdraw

or

modify

them.

The Special Rapporteur considers that control of the permissibility of reservations is the
primary responsibility of the States parties. However, the Committee again wishes to draw to
the attention of States parties its grave concern at the number and extent of impermissible
reservations. It also expresses concern that, even when States object to such reservations
there appears to be a reluctance on the part of the States concerned to remove and modify
them

and

thereby

comply

with

general

principles

of

international

law.

The Committee in two of the general recommendations and its statement on reservations has
called on the States to re-examine their self-imposed limitations to full compliance with all
the principles in the Convention by the entry of reservations. Removal or modification of
reservations, particularly to articles 2 and 16, would indicate a State party's determination to
remove all barriers to women's full equality and its commitment to ensuring that women are
able to participate fully in all aspects of public and private life without fear of discrimination
or recrimination. States which remove reservations would be making a major contribution to
achieving the objectives of both formal and de facto or substantive compliance with the
Convention.

WHAT ARE THE PRINCIPLES OF CEDAW?

Under CEDAW the promotion and protection of womens human rights is based on three
principles

Substantive equality

Non-discrimination

State obligation

These principles serve as useful tools not only to recognise and understand gender
discrimination, but to develop actions and strategies to dismantle Longstanding
Prejudices and Barriers that has Prevented women from exercising their rights and freedoms.

THROUGH THE EYES OF WOMEN? THE JURISPRUDENCE OF THE CEDAW

COMMITTEE
The adoption of the Convention on the Elimination of All Forms of Discrimination against
Women (CEDAW) by the United Nations (UN) General Assembly in 1979 was a significant
achievement in enshrining womens human rights into international law. To date, CEDAW
continues to be the only international human rights instrument to specifically address the
human rights of women. These rights include, inter alia, the obligation to end discrimination
against women in any legislative or judicial form, public institutions, social or cultural
practices, public or political life, nationality, education, employment, health care, trafficking
and prostitution, rural life, legal capacity, and in marriage and family relations. In 1999, the
Convention was further strengthened by the adoption of the Optional Protocol to CEDAW
(OP CEDAW).
The adoption of the OP CEDAW was received with much enthusiasm as it enabled women,
for the first time, to submit a communication to the CEDAW Committee about a violation of
their CEDAW rights and to seek redress at an international level. Whilst some of this
enthusiasm has since been dampened by the significant number of communications that have
been declared inadmissible (e.g. Sullivan) and by criticisms about the progressiveness of the
Committees views (e.g. Murdoch), the CEDAW Committee has nonetheless issued a number
of important decisions on areas such as violence against women, reproductive health and
gender stereotyping.
The views issued by the CEDAW Committee have contributed to developing the
international law on womens human rights and to the understanding of what is required by
States to fulfil their CEDAW obligations. In this paper, the jurisprudence of the CEDAW
Committees views will be examined. The term jurisprudence in this paper will be used to
refer to the interpretations of the law given by a court (Ratnapala 3). Although the CEDAW
Committee may only be a quasi-judicial body, its interpretations of CEDAW have
nonetheless been regarded as authoritative.
Furthermore, the views of UN treaty bodies are commonly referred to as jurisprudence
within the study of international law (e.g. United Nations; Council of Europe; Byrnes and
Bath 518; Isa 320). In this paper, the question will be asked, have the views of the CEDAW
Committee been cautious or progressive? Consistent or inconsistent? Commendable or
regrettable? This paper will demonstrate that in cases involving severe human rights
violations, such as violence, rape or death, the CEDAW Committee has been strong in its

views and has incorporated a good analysis of how gender has contributed to these violations.
However, for matters in which the discrimination has not been as direct or the consequences
have not been as severe, the Committee has not undertaken the more nuanced analysis that is
needed to draw out the human rights violations that have occurred. Hence, whilst the
CEDAW Committee has commendably advanced the international law on womens human
rights in some areas, it has also been reluctant and slow to do so in others.

CONSIDERATIONS AND INTERPRETATIONS

The communications procedure established by the OP CEDAW provides an opportunity for
women to lodge a complaint to the CEDAW Committee if they believe that their rights under
CEDAW have been violated. Whilst the communication procedure is accessible to all
women, complaints may only be lodged against a State that is a party to the OP CEDAW.
Currently, 104 States are a party to the OP CEDAW. If the communication fulfils the
admissibility criteria, such as the exhaustion of domestic remedies and that the violation
occurred or continued after the OP CEDAW came into force, then the merits of the
communication will be considered.
Through a series of written communications with the author1 of the complaint and the
accused State, the CEDAW Committee will determine whether or not the State has failed to
fulfil its obligations under CEDAW. If a violation is found, the CEDAW Committee will
provide recommendations to the State of actions that it may take to remedy the situation. This
may include both remedies for the individual victim as well as structural or systemic changes
that the State may implement to prevent there occurrence of this violation in the future. The
views issued by the CEDAW Committee also contribute to building the jurisprudence on
womens human rights in international law by expanding on or explaining what is required of
States to fulfil their obligations under CEDAW.
A decade has passed since the adoption of the OP CEDAW. To date, 41 communications
have been registered and 24 views have been issued. Of these, 11 communications have been
declared inadmissible and 13 communications have been considered on their merits. Of the
communications considered on their merits, the Committee has found breaches of CEDAW
in 12 communications. In considering the communications that have been submitted to it, the
decision-making process of the CEDAW Committee has involved not only the examination
of the merits of the case but also the interpretation and application of the articles within
CEDAW. The interpretation of treaties has been a subject of much scholarly debate and is
beyond the scope of this paper. However, progressive writers in the area have characterised

the interpretation of treaties as an active process of constructing a meaning rather than

finding the meaning which lies latent within the text (Tobin 5). Hence, if the interpretation
of treaties involves, at least to some extent, a construction of its meaning, then it is important
that these constructions of meaning are principled, practical, coherent in their reasoning, and
sensitive to the socio-political context (Tobin 14).
In regard to the interpretation of CEDAW, the general and far-reaching language of its
provisions has provided the Committee with the opportunity to be creative and progressive in
their interpretation and application of the Convention (Murdoch 33). At times, the CEDAW
Committee has taken advantage of this opportunity and has progressively interpreted the
Convention to further womens human rights. This has been particularly the case in
communications involving family violence, reproductive rights and gender stereotyping. At
other times, the CEDAW Committee has missed opportunities to protect womens human
rights and has issued views that have not taken the bolder gender analysis required to make
the finding that a human rights violation has occurred, such as in the case of indirect
discrimination or intersectional discrimination. This paper will begin by examining the areas
in which the CEDAW Committee has taken the opportunity to progress womens human
rights, before discussing the areas in which the Committee has missed these opportunities.

OPPORTUNITIES AND PROGRESS

FAMILY VIOLENCE
DUE DILIGENCE
The most extensive jurisprudence developed by the CEDAW Committee has been in the area
of family violence and due diligence. This involves the obligation on States to 'protect,
respect and remedy' human rights, which is: to protect human rights by preventing human
rights violations; to respect human rights by not undertaking actions that breach human
rights; and to provide remedy for human rights violations. The concept of due diligence has
been essential to advancing the protection of women from family violence within a human
rights framework.
The obligation on States to exercise due diligence has been articulated in article 4(c) of the
Declaration on the Elimination of Violence Against Women (DEVAW) and repeated in article
125(b) of the Beijing Platform for Action. These non-binding yet authoritative agreements
call on governments to exercise due diligence to prevent, investigate and, in accordance with
national legislation, punish acts of violence against women, whether those acts are

perpetrated by the State or by private persons. The concept of due diligence has also been
developed in regional and international case law.

The concept of due diligence was first established in the landmark decision of the InterAmerican Court of Human Rights, Velsquez Rodrguez v. Honduras ((Ser. C) No. 4 (1988)),
which held that an illegal act which violates human rights... [by] a private person... can lead
to international responsibility of the State, not because of the act itself, but because of the
lack of due diligence to prevent the violation or to respond to it as required by the
Convention. The case law, as well as state practice and opinio juris (the belief that a
particular act is a legal obligation), has supported the assertion by the UN Special Rapporteur
on Violence Against Women that there now exists a rule of customary international law that
obligates States to act with due diligence to address violence against women (Ertrk 29).

Most of the communications to the CEDAW Committee on family violence have been
successful. As violence against women is not expressly prohibited in CEDAW, the
Committees decisions have relied upon General Recommendation No. 19 which defines
discrimination as including gender-based violence.

The Recommendation also reiterates that States may be held accountable for private acts if
they fail to exercise due diligence. In AT v. Hungary, a matter in which the author suffered
seven years of family violence, the Committee affirmed for the first time within an
international quasi-judicial setting that the provisions within articles 2(a), (b) and (e) (the
obligation to embody the principle of equality between men and women in the law and to
take all measures to eliminate discrimination) extend to include the prevention of violence
against women and that a failure to do so constitutes a human rights violation.

Referring to General Recommendation No. 21, the Committee also recognised that
traditional attitudes by which women are regarded as subordinate to men contribute to
violence against them and found violations of article 5(a) (the obligation to modify gender
stereotyped roles) and article 16 (equality in family life).

The second communication before the Committee on family violence was Goekce v. Austria
and was a matter that involved the murder of a woman by her partner. In Goekce, it was
further clarified that the prosecution of perpetrators alone is not sufficient to fulfil State

obligations. Hence, it may be argued that General Recommendation No. 19 should be read as
due diligence entailing both the prevention of violations and the punishment of perpetrators
(and not or as written). In Goekce, the Committee also elaborated on the phrase practical
realization contained in article 2(a) (embodying the principle of equality between men and
women in the law) and found that a comprehensive legal system must be accompanied by a
commitment to action. In addition, the Committee found violations of article 1 (legal
protection of womens rights), article 2(c)(discrimination against women), and article 3
(measures to ensure the advancement of women). In contrast to AT v. Hungary, however, the
Committee held that article 5(a)(gender stereotypes) need not be considered. Hence, this
created an inconsistency with the Committees previous decision in AT v. Hungar
The view rendered in Goekce v. Austria also started to define the elements of due diligence.
The first was a mental element in which the police knew or should have known of the
seriousness of the situation on account of the long record of earlier disturbances and
battering. The second was a physical element which consisted of a lack of timely response.
In this case, the omission involved the failure of the police to respond to an emergency phone
call made by Goekce on the night of her death. No patrol car was sent to investigate the
phone call until the perpetrator surrendered him to the police two-and-a-half hours after her
death. These elements of due diligence were elaborated slightly in Yildirim v. Austria to
include the Austrian authorities and the Public Prosecutor among those who knew or should
have known. The abuse and death of women at the hands of their intimate partners has
clearly been established as a violation of the rights enshrined in CEDAW.

The precise article in CEDAW that is violated, however, continues to be difficult to predict
(Murdoch 39). For example, the Committee has found violations of different sections of
article 2 among similar cases, and has found violations of article 1, 3 and 5 in some cases but
not others. Part of the issue may be that no provision in CEDAW specifically addresses
family violence. Instead, the Committee has had to interpret the general provisions in
CEDAW as applying to family violence. Despite this challenge, it is important that the views
issued contain some coherent reasoning (Tobin 5) and criticism has been made that it is
difficult to discern any rationale for the contrasting approaches in communications in which
the material facts are not dissimilar (Murdoch 39).

Regardless of these criticisms, the Committees views have contributed to the understanding
of due diligence and State obligations in regard to family violence. The views rendered have
been useful for addressing one of the main limitations of due diligence which has been the
lack of clarity concerning its scope and content (Ertrk 15). This has included the
contribution of the CEDAW Committee to clarifying both the knowledge that the State
should have had about the threat that the family violence posed and the actions that the State
should have taken.
The Balancing of Competing Rights
In the communications on family violence, the CEDAW Committee has also been with faced
the challenge of balancing competing human rights. Despite the Vienna Declaration and
Programme of Action reasserting that all human rights must be treated in a fair and equal
manner, on the same footing, and with the same emphasis, there has been a long history of
viewing human rights in a hierarchical manner(Shelton). For example, tensions have long
been present between civil and political rights and economic and social rights (e.g. Sen).
Other hierarchies have been constructed based on which human rights are most respected by
States and enjoy the fewest reservations; which human rights do or do not also constitute
international crimes if violated; and which human rights are considered absolute and
nonderogable(rights that cannot be suspended or limited)(e.g. Shelton 310-313; Meron 20).
On the other hand, feminist legal scholars have analysed how the development of human
rights has been influenced by an implicit male actor as the subject and bearer of human
rights (e.g. Charlesworth; Bunch).

Feminist legal scholars have demonstrated how this has produced an international human
rights regime which has prioritised the activities of the public sphere (which has traditionally
been the domain of men) and has been concerned violations committed by the State (which
has traditionally been the source of authority which men fear)(Bunch 13). For example, the
right to life has traditionally been interpreted as freedom from the arbitrary deprivation of life
in the public sphere by State actors, such as through the death penalty (Bateup). For women,
however, the main incidences of the arbitrary deprivation of life occur within the private
sphere at the hands of men with whom they are familiar. The World Health Organisation has
reported that up to 70%of female murder victims are killed by their male partners and
Amnesty International (In Our Hands, 30) has documented that thousands of women are
murdered by male relatives through honour killings every year. In addition, sex-selective

abortions and female infanticides have resulted in more than an estimated 60million women
missing from the world today (Radford & Russell).In its deliberations, the Committee has
had to manage claims of competing rights between the victim and the perpetrator. In Goekce
v. Austria, for example, the State Party argued that although the death of the victim was
extremely tragic, the detention [of the man] must be weighed against an alleged
perpetrators right to personal freedom and a fair trial. The State Party argued that that the
deprivation of freedom would reverse the burden of proof and be in strong contradiction
with the principles of the presumption of innocence and the right to a fair hearing. Despite
these arguments, the Committee held that womens right
to life is not to be superseded by the perpetrators right to freedom of movement or right to
a fair trial. This was subsequently affirmed in Yildirim v. Austria. In AT v. Hungary, the
Committee also found that[w]omens human rights to life and to physical and mental
integrity cannot be superseded by other rights, including the right to property and the right to
privacy. It must be noted that the Committee did not find that detention is necessary in all
cases of family violence but that preventive detention is not disproportionate in situations of
high levels of violence which have persisted over long periods of time (Byrnes and Bath
524).
Whilst the Committees view on detention has been criticised (Murdoch 43), the Committee
is in the unique position of being able to prioritise human rights from womens perspective.
In determining the conflict between womens rights to life and freedom from violence, and
mens rights to freedom of movement, privacy, property or a fair trial, the Committee has
made the correct decision in rebalancing these rights and has made an important statement
on the value that should be accorded to the human rights of women.

Reproductive Rights
The CEDAW Committee has also issued strong views on cases involving violations of
womens reproductive rights. For example, in AS v. Hungary, a Hungarian Roma woman was
admitted to hospital to have a caesarean to remove a dead foetus. Whilst on the operating
table, the author was asked to sign a handwritten note by the doctor consenting to her
sterilisation. The author claims to have been bleeding heavily at the time, to have been in a
state of dizziness and shock, and to have not understood the Latin term for sterilisation that
was used on the form. The Committee made a finding in favour of the author and held that
the State Party had violated article 10(h) (right to health information), article 12 (access to
health services) and article 16 (right to family planning).

The case of AS is not an isolated incident but is one example of the broader human rights
violations and cycle of discrimination, poverty and exclusion faced by Romani communities
in Europe (Amnesty International, Europe). The forced sterilisation of Roma women has
been reported across Eastern Europe with the estimated numbers varying from several
hundred to several thousand (Tomasovic 767). Dozens of domestic proceedings have been
lodged but few have been resolved in favour of the victim (Tomasovic768). Whilst laws
against forced sterilisation exist, it is barriers such as discrimination and disempowerment
that have prevented women from obtaining justice at a domestic level. Hence, the
communication procedure of the OP CEDAW has been seen as one of the best option[s] for
obtaining individual compensation for Roma women (Tomasovic 769).
In AS v. Hungary, the Committee developed the jurisprudence on the right to health and, in
particular, the right to information and consent. The Committee found a violation by the State
Party, through the hospital personnel, of article 10(h) which provides for access to specific
educational information to help to ensure the health and well being of families, including
information and advice on family planning. The Committees view extended the right in
article 10(h) to include not only the provision of information but that the information must
also be provided under appropriate conditions in which women can understand the
information.
The Committees views also elaborated on the elements that need to be met to achieve
informed consent. Informed consent has been defined in the literature as the principle that
every competent individual of legal age has a right to determine her medical treatment and
what is done to her body (Costello 993, referring to American Jurisprudence 2d 2002 (61),
157). The Committee developed four elements of informed consent which were: the
provision of information and counselling; the provision of information on alternatives, risks
and benefits; the ability to consider the information; and the obtaining of consent that was
voluntary.
In AS v. Hungary, the Committee found that the authors informed consent had not been
obtained and that the State Party had violated article 12 (right to access health services). In
addition, the Committee also found violations of article 16 (the right to decide the number
and spacing of children) due to the consequences of the forced sterilisation. The positive
decision rendered by the CEDAW Committee in AS v.Hungary has inspired optimism among
womens rights activists and has upheld expectations of the OPCEDAW as being the most

promising option for redress for women who have been denied justice at a domestic level
(Tomasovic 809).

The CEDAW Committee has also made a progressive ruling in the case of LC v. Peru. In this
matter, a 13year old girl was repeatedly raped by a 34 year old man and when she became
pregnant she attempted to commit suicide by jumping off a building. However, she survived
the fall and required emergency surgery. Upon discovering that she was pregnant, the doctor
refused to perform the surgery due to the risk of harming the foetus. An abortion was
requested but it was also refused. LC later miscarried and was finally allowed to undergo the
surgery three and a half months after the emergency surgery was recommended.LC is now
paralysed from the neck down. In its determination, the Committee recalled its General
Recommendation No. 24 which provides that it is discriminatory for a State party to refuse
to legally provide for the performance of certain reproductive health services for women. In
addition, the Recommendation provides that States have the responsibility to ensure that
legislative and executive action is taken to uphold womens right to health care.
The Committee raised concern about the legal vacuum that surrounded the issue of
therapeutic abortion in Peru and stated that since the State party has legalized therapeutic
abortion, it must establish an appropriate legal framework that allows women to exercise their
right to it under conditions that guarantee the necessary legal security It is essential for this
legal framework to include a mechanism for rapid decision-making, with a view to limiting to
the extent possible risks to the health of the pregnant mother, that her opinion be taken into
account, that the decision be well-founded and that there is a right to appeal. The Committee
found that LC did not have access to any proper processes to allow her to establish her need
for these medical services and that, therefore, her right to health (article 12) had been
violated.
In addition, the Committee also found a violation of article 5 which enshrines the obligation
of States to eliminate prejudices based on gender stereotyped roles. The Committee found
that the decision to postpone the surgery due to the pregnancy was influenced by the
stereotype that protection of the foetus should prevail over the health of the mother. The
States actions implied that womens role as child bearers was of greater value than womens
ability to perform any other role in society, as the postponement of the surgery, which
resulted in LCs near complete paralysis, has meant that value and potential of LCslife in
any other way except for bringing a foetus to term has been severely restricted. Therefore, in

this matter the CEDAW Committee has been able to move beyond the more obvious
violation of the right to health to also recognise the effect of gender-stereotyping on womens
human rights.
Gender Stereotyping
Another area in which the CEDAW Committee has issued progressive views is in respect to
the role of gender stereotyping. As discussed, the role of gender stereotyping has been
considered by the Committee in LC v. Peru. The CEDAW Committee has also made a
number of other findings in which gender stereotyping resulted in the violation of womens
human rights. For example, in Vertido v. The Philippines, the Committee considered the case
of a woman who was raped by her employer and the ensuing unsuccessful court battles which
lasted for eight years. The authors complaint to the Committee concerned the gender
stereotypes and rape myths that had been invoked in the courtroom which she alleged
resulted in an unfair trial.
These myths included that: a victims failure to make an attempt to escape renders
questionable that the act was rape; women who were not timid or easily cowed were less
likely to be raped; a direct threat must exist for rape to occur (in this case, whether there was
or was not a gun present); a sex act is less likely to be coercive if the victim and perpetrator
were familiar with each other; and a perpetrator who did not ejaculate during the act and was
aged in his sixties cannot have committed rape.
Gender stereotypes about womens sexuality and rape have long pervaded rape trials
(Goldenberg-Ambrose). These rape myths have been defined as attitudes and generally false
beliefs about rape that are widely and persistently held, and that served to deny and justify
male sexual aggression against women (Lonsway & Fitzgerald 133). Such beliefs have been
demonstrated to influence the judicial process by affecting the instructions given to the jury,
the opinions and decision-making of jury members, and the attitude of judges (Torrey 10451057). As such, rape myths and gender stereotypes may affect the right of women to a fair
trial and serve to undermine the integrity of the legal system (Torrey 1057).

In this case, the Committee took issue with a number of beliefs that had influenced the
decision-making process in the courtroom. These beliefs included that: accusations of rape
are easily made by women; the ideal victim responds in a particular way including through
physical resistance and making every possible attempt to escape; any type of relationship

between the author and the accused decreases the probability that the act was non-consensual;
and stereotypes about male and female sexuality. The Committee stressed that a lack of
physical resistance was not an indication of consent and that, in the authors case, the
gravitation between resistance and submission should not affect the credibility of the authors
testimony. The Committee held that stereotyping affects womens right to a fair and just
trial and found violations of articles 2(c)(the legal protection of womens rights), article
2(f)(measures to abolish existing laws that discriminate against women) and article 5(a)(the
obligation to modify gender stereotyped roles).
The myths surrounding women and rape have been a form of discrimination that the womens
movement has long battled. The Committee should be commended for boldly addressing this
issue and setting a standard of what is and is not acceptable in the trial of rape cases. This
decision at an international level not only fares well for future communications that may be
submitted to the Committee but will hopefully also be drawn upon by other human rights
treaty bodies and judicial bodies in their determination of cases in which gender stereotypes
may affect womens rights to a fair trial.
Although the CEDAW Committee has made significant progress in protecting womens
human rights, the Committee has also missed a number of opportunities that have been
presented to it. The Committee has particularly struggled to make a positive finding of sexbased discrimination in communications which have involved multiple and overlapping
forms of discrimination. From its views, it appears that the Committee has found it
challenging to disentangle the causes and effects of intersectional discrimination, in which
the discrimination experienced may have been based on multiple attributes (e.g. sex, age,
class, race). One example is in Kayhan v. Turkey in which the author was dismissed from her
teaching appointment at a state high school for wearing a headscarf. The CEDAW Committee
declared this matter to be inadmissible as the author had failed to raise sex-based
discrimination in the domestic proceedings that she had undertaken before submitting her
complaint to the CEDAW Committee. Instead, her domestic proceedings had raised the right
to freedom of work, religion and thought; the prohibition against discrimination; and the right
to physical and spiritual well-being.
In this case, the Committee has been criticised for being particularly harsh for dismissing
the communication (Murdoch 34). Many women who face double discrimination may find it
difficult to determine the precise origin of the unfavourable treatment (i.e. gender or religion)

and the author herself may have been unsure of the exact cause (Facio 42). In addition, those
that perpetrate discriminatory acts may not have based their actions simply on gender or
religion. Instead, the treatment was likely based on the authors overall status as a Muslim
woman. Therefore, the Committee should have been more sensitive to the difficulties of
disentangling the effects of double discrimination rather than being strict in their application
of article 4(1)(exhaustion of domestic remedies).

In another communication, Zheng v. The Netherlands, the author was a victim of child
trafficking and had been held in sexual and domestic slavery in the Netherlands. The
Committee found that the author had not raised article 6 (traffic in women) in her domestic
proceedings which she was now raising in her communication. Hence, the communication
was declared inadmissible. In addition, the State Party argued that her asylum request could
not be substantiated as she was unable to provide much information on her identity, her
family, her journey to the Netherlands or where she resided upon arrival.

In this case, the author may have been subject to multiple forms of discrimination based on
different attributions such as sex, the age of minority, and severe socio-economic deprivation
including illiteracy. In addition, the reality of many trafficking victims is that they may not
know the details of their journey, the location of their captivity, or the identity of their
traffickers (Farr). Having also been orphaned as a child, it should have been expected that the
author was unable to provide details about her family or background. In the dissenting
opinion, three members reminded the rest of the Committee that the purpose of the
OPCEDAW is to enable women to obtain the benefit of the law as intended and to take
remedial action when domestic procedures have failed them. A more gender-sensitive
approach by the majority would have taken into account that sex trafficking is a gendered
crime which largely targets women and children (Fergus 8-9).
The jurisprudence on womens human rights in international law and have further clarified
the human rights protections to which women are entitled. In regard to international law,
however, the OP CEDAW is still a relatively new treaty. Hence, the full potential of the OP
CEDAW has yet to be realised. The communications considered by the Committee have yet
to cover the breadth or depth of human rights violations faced by women and only a few
communications have gone to the very heart of key fundamental equalities(Murdoch 41).
Thirteen communications are still pending which, when considered, may significantly expand

the jurisprudence developed by the CEDAW Committee. In addition, the communications

pending will also subject some State Parties to the CEDAW communication procedure for the
first time, such as Spain, Bulgaria, Denmark, the Philippines, and the UK.
When the views issued by the CEDAW Committee are considered in a chronological order, it
is evident that the Committees views have become more and more progressive over time.
The Committees strongest views, however, have been confined to safe issues which have
already been addressed extensively by the womens movement, such as family violence,
sexual violence and reproductive rights. It appears that in matters in which the human rights
violations have not been as severe that the Committee has, at times, struggled to identify the
discrimination that has been experienced.
This has been seen, for example, in cases involving indirect discrimination or intersectional
discrimination. However, the intention of CEDAW is to eliminate all forms of discrimination
against women, including both direct and indirect discrimination as well as the myriad of
ways in which discrimination based on gender can intersect with discrimination based on
race, culture, age, religion, sexual orientation, or other characteristics. In these regards, the
work of the CEDAW Committee may be enhanced by drawing upon the extensive feminist
legal scholarship that exists on womens human rights and which provides thorough and
critical analyses of the influence of gender on the realisation of human rights for women (e.g.
Peters & Wolper; Cook; Knop).
By drawing on the feminist legal scholarship that already exists, some of the issues
experienced in the Committees previous views, such as the difficulty of identifying indirect
discrimination, may be less likely to arise. Thus, the CEDAW Committee needs to be
encouraged to continue to become more progressive in its interpretation and application of
the Convention and in the views that it issues in its communications procedure. Nonetheless,
the views issued by the CEDAW Committee have been invaluable for advancing womens
human rights and much potential exists in the future for the CEDAW Committee to further
build upon the jurisprudence that it has already developed.

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