USING

CEDAW
IN THE
JORDANIAN
LEGAL
SYSTEM:
A HANDBOOK FOR
PRACTITIONERS
Dr. Mohammad Khalil Al-Moussa
Preface by Asma Khader
Mizan Law Group for Human Rights (Mizan)
Mizan was established by a team of lawyers as a non-profit and
independent organisation in 1998. Its goals include the protection of
human rights, the promotion of democracy, policy reform, and raising
awareness on human rights. The Organisation leads a number of initiatives
in Jordan including offering legal assistance and protection to vulnerable
groups such as children, women, prisoners, refugees, and elderly people.
In addition, Mizan works to increase the capacity of legal practitioners
enhancing their knowledge on international human rights instruments
and their use at the domestic level. Ultimately, Mizan strives to enhance
the legal protection of human rights and fundamental freedoms in Jordan
as they are laid out in international and national laws. The organisation
plays a central role in encouraging policy reform in line with international
standards, in particular promoting the dialogue between national
institutions and civil society. Mizan has an office in Amman as well as
north and south of the Hashemite Kingdom.

The Jordanian National Commission for Women

(JNCW)

The Jordanian National Commission for Women is a semi-governmental

organisation founded in 1992 under the chairmanship of Her Royal
Highness Princess Basma Bint Talal. It is a translation of the Royal vision of
enhancing the role of women and an expression of Jordan’s commitment
to the advancement of the status of women and to the implementation
of all provisions of conventions, treaties and action plans internationally
recognised. The Commission is composed of ministers, representatives
from the civil society and the private sector and a number of experts.
The Commission functions, entrusted to it by The Council of Ministers,
include: the revision of laws and legislations to ensure that they do not
discriminate against women; proposition of public policies aimed at
empowering women in various fields; working as a liaison between the
governmental and non-governmental organisations; implementation of
programs and projects, including capacity building, and the preparation
of periodic reports on the status of women; and finally, overseeing
the preparation and updating of the national strategy for women and
4 5
monitoring its implementation. To carry out these tasks, the Commission
continuously strives to strengthen networking and communication with
the various groups and organisations within the society.
Italian Consortium of Solidarity (ICS)
ICS is an International Non-Governmental Organisation founded in 1993
as a network of Italian associations and local groups operating on issues
related to human rights, peace and development sharing the same values
and working methodology. ICS is engaged in the protection of victims
of armed conflicts and international crisis as well as the promotion
and protection of human rights and fundamental freedoms. Through
partnerships with various organisations, ICS has been able to implement a
number of projects in the Middle East and it has been active in Jordan since
2008. The focus of these programs has increasingly been the protection
and promotion of human rights, often through capacity building programs
focused on the use of international legal instruments.
Note to Readers
The primary audience of this publication are Arabic speaking practitioners,
nevertheless the decision to produce a bilingual publication was guided
by the fact that this work can benefit not only those in Jordan but it can
also be used as a tool for advocates for the Convention of the Elimination
of Discrimination Against Women in other countries, allowing them to
create similar material; in addition to assisting the promotion of CEDAW, it
will also assist international experts to become better acquainted with the
Jordanian legal system, including the representatives of UN human rights
institutions.
Please note that the original publication was written in Arabic, and
translated into English. The English version differs slightly from the Arabic
version due to the translation and editing process.
Note on the Author
Professor Mohammed Khalil Al-Moussa obtained his PhD in international
law from the Faculty of Law at the University of Nantes, France, in 1999. He
has worked as an Assistant Professor in the Department of Legal Studies
at Al al-Bayt University, and as lecturer at both the Jordanian Diplomatic
Institute, and Hashemite University, he also taught at Al-Zaitouneh
University. Professor Al-Moussa is currently teaching International Human
Rights Law and International Humanitarian Law at the University of
Bahrain. He collaborates with a number of NGOs in Jordan.
He has published several research papers and books in Arabic, including:
the Juridical Function of International Organizations (Amman: Wael
Publications, 2003), the Interpretation of International Human Rights
Convention in the light of the Practice of Treaties Bodies (Journal of
Law, University of Kuwait, 2004), the Use of Force in the Contemporary
International Law (Amman: Wael Publications, 2004), International Law
of Human Rights (Amman: House of Culture and for Publishing and
Distribution, 2005), the Impact of Reservations Made by States (The Journal
of Law, University of Bahrain, 2006), Guide for the Application of the
United Nations Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (Amman: Adalah Centre for Human
Rights Studies, 2008).
6 7
Preface
Women are entitled to lead a life filled with dignity and equality in every
respect. This fact is internationally recognised through international
human rights treaties and norms. A respect for a woman’s inalienable right
to equality is shared throughout Jordanian social, political and religious
society, and is protected under Jordanian Law. However, statistical indices
and data demonstrate the unfortunate reality of the continuing disparity
between men and women across Jordan. Illiteracy, although low, continues
to be higher amongst women than men. Similarly, women are more likely
to be unemployed than men, with female unemployment standing at 24%,
in contrast to 10% for men.
The constitutional protection of citizen’s rights in Jordan is clear and
applies equally to women and men. The government is actively progressing
towards removing any legislation which is discriminatory in application.
Furthermore all religions in Jordan share the common value that a woman
deserves both respect and the protection of her rights. This is reflective
of the ethical values of Jordanian society that regards discrimination,
ill-treatment and injustice directed against women as being counter to
Jordanian culture.
Royal initiatives and government strategies, that seeks to promote the
level of involvement of women in all aspects of Jordanian public life, as
well as protecting women from violence, has positively affected the status
of women in Jordanian society and they are eroding the obstacles to their
advancement.
Despite these continuing efforts to overcome obstacles which hamper
the advancement of women within Jordanian society, including the
development of legal and institutional mechanisms aimed at the
protection of women, manifestations of discrimination and violence
against women, within the family, workplace and wider society, remain.
. Jordanian women continue to suffer from discrimination and a large
portion of them are still vulnerable to forms of violence and ill-treatment.
Moreover poor awareness of women’s rights and the means of enforcing
remains a critical issue.
The concern for the treatment of women in Jordanian society is one that
is shared by women all over the world. Despite strong national, regional
and international efforts to promote and protect human rights, globally
women continue to face discrimination; in many places they do not share
the same social, cultural, economic, political and economic rights as men.
Many women exist under the grave spectre of violence being directed
towards them.
The international community has worked tirelessly towards eliminating
discrimination against women through developing specialised conventions
and declarations as well as creating institutional mechanisms within the
United Nations framework.
It is within this framework that the international community, with
General Assembly Resolutions 34/180, adopted the Convention on the
Elimination of All Forms of Discrimination Against Women (CEDAW),
on 18 December 1979. This Convention reflects the collective will of the
society of States to eliminate all discrimination against women. The
Convention came into force on 3 September 1981. As of 7 September 2009
CEDAW has been ratified by 186 States, including 19 Arab States.
Jordan signed the Convention on 3 December 1980, ratifying it on 1 July
1992 and published in the Official Gazette on 1 August 2007. This is in
addition to other legal instruments ratified by Jordan that enshrine
the principle of equality and non-discrimination, including the two
international Covenants, on Civil and Political Rights and on Economic,
Social and Cultural Rights.
Despite initially signing CEDAW with some reservations, on 19 February
2009 the Jordanian government lifted its reservation to the fourth
paragraph of Article 15 concerning the right to freedom of movement and
choosing one’s place of residence. However, other reservations remain:
including to: Article 9, paragraph 2, concerning the right of women
married to foreigners to pass their nationality onto their children;
Article 16, paragraphs c, d, g concerning, respectively, the rights and
responsibilities during marriage and at its dissolution, towards children
regardless of the marital status, and equality between husband and wife.
The practical steps taken by the Hashemite Kingdom of Jordan to
implement CEDAW’s provisions are based on the constitutional and
political commitment to achieve equality and non-discrimination among
all Jordanians. It reflects the political will of Jordan towards the purpose
and the content of CEDAW.
 9

Table of Contents
It is essential to note that ratification is a sovereign act, and no state can be
forced to perform this act. When a state initiates ratification or accession Note to Readers 5
to an international agreement it triggers contractual, legal and political Note on the Author 5
responsibility. It imposes duties on all three branches of the State to take Preface 6
the necessary steps to enforce the provisions of the relevant convention
at the national level. These commitments include providing information Introduction 12
and specialised knowledge on how to enforce the Convention’s provisions
The Project 14
to judges, law enforcement officials and other legal professionals, as well
The Primary Objectives of the Handbook 15
as promote an understanding of its content and ethos amongst relevant
stakeholders, in the case of CEDAW this includes women themselves. How the Handbook is Structured and How to Use It 16

Within the Jordanian legal system, publishing the Convention in the I. Human Rights and the International Convention on the
Official Gazette means that its provisions have become mandatory. It also Elimination of All Forms of Discrimination against Women 18
means that it is the responsibility of the legislative branch to take the
Women's Rights and the Universality of Human Rights 20
necessary steps needed to amend any laws that are incompatible with
the Convention. The judiciary is compelled to use the provisions of the International Instruments on Women's Rights 22
Convention when dealing with relevant cases. Defining the Convention on the Elimination of All Forms
23
of Discrimination Against Women
This important, pioneering and specialised project, including the technical Ratification, Signature, and Accession to the Convention 24
and practical information included in this manual, will contribute to Basic Principles of CEDAW 25
the effective implementation of CEDAW and assist practitioners in the
State Parties’ Obligations under the Convention 26
application of its provisions. This will have a tangible impact on the lives of
Jordanian women. Reservations 28

The availability of legal remedies for the protection of rights envisaged II. Rights guaranteed in the Convention on the Elimination
under the law should be guaranteed to all. For women in particular, of All Forms of Discrimination against Women. 30
the right to dignity, justice and equality should be legally ensured and Definition of Discrimination Against Women 32
protected. Protecting from human rights violations is a key responsibility
of the State, but also it is one that should be shared across the whole Prohibition of Trafficking in Women and Exploitation
33
of Prostitution
Jordanian society. The responsibility falls on all of us!
Political Rights and Participation in Public Life 34
Right to Nationality 36
Asma Khader Right to Education 36
Employment Rights 38
Right to Health 39
Economic Rights 40
Equality in Civil Matters, Marriage and Family Life 40
Prohibition of Violence Against Women 42
10 11

III. Guarantees of Control and Supervision of the VI. Models of application of CEDAW in Different
Implementation of the Convention 46 Legal Systems 84

Committee on the Elimination of Discrimination Attorney General of Botswana v. Unity Dow

48 86
Against Women (Botswana Supreme Court, 1992)

Reports of States Parties 49 Ephrahim v. Pastory (High Court of Tanzania, 1990) 88

Models and Content of Initial and Periodic Reports 50 Njobeka v. Mkorogoro (High Court of Tanzania, 2001) 88
Examination of Reports 51
Dhungana v. Government of Nepal (High Court of Nepal, 1993) 89
Special Reports 53
General Recommendations 53 Vishaka v. State of Rajasthan (3 BHRC, 261) 90
The Optional Protocol 54 Municipal Corporation of Delhi v. Female Workers
91
Content of the Optional Protocol 55 (High Court of India)

Individual Communications 56
Conditions of Admissibility of Individual Communications 56
Annexes 92
Consideration of Individual Communications 59
Inquiry Procedure 60 Convention on the Elimination of All Forms of Discrimination
94
Against Women

Optional Protocol to the Convention on the Elimination

IV. The Convention on the Elimination of All Forms of of All Forms of Discrimination against Women
107
Discrimination Against Women in the Jordanian legal system 62
Useful websites 113
Jordan's Reservations to the Convention 64
Incorporation of CEDAW into the Jordanian Legal System 66
Contact Information 114
Status of the Convention in the Jordanian Legal System 68
The Importance of Jordan's Accession to the Optional Protocol 70

V. The role of judges, prosecutors and lawyers in

enforcing CEDAW 72
The Direct Applicability of CEDAW 74
The Direct Applicability of the Principle of Equality 77
The Interpretative Use of CEDAW 79
CEDAW in Lawyers’ Practice 80
Why Should Lawyers Invoke CEDAW in Domestic Courts? 82
12 Introduction

The project Strengthening Local Capacity

to Protect Women’s Rights in Jordan was
established in 2008 and is being implemented
by Mizan Law Group for Human Rights and
the Italian Consortium of Solidarity - in
cooperation with the Jordanian National
Commission for Women, and is funded by the
European Union. Its aim is enhancing the
protection of women’s rights, and therefore
contributing to the reduction of discrimination
and violence against women in Jordan.
This handbook explores the international
instruments that promote these principles,
particularly the Convention on the Elimination
of All Forms of Discrimination Against Women
(henceforth CEDAW or the Convention),
examining both its status and the potential for
its application in the Jordanian legal system.
The purpose of this handbook is to develop
the skills and competences of lawyers, public
Introduction attorneys, judges and other practitioners on
the use of CEDAW within the Jordanian legal
system.
14 Introduction
The Project
Strengthening Local Capacity to Protect Women’s Rights in
Jordan deals with judges, public attorneys, lawyers and other
actors involved in the Jordanian legal system. The idea of
enhancing the capacity of these groups in using international
instruments and the necessity of this publications derives from
Mizan’s desire to enhance the role of lawyers, and in particular
its own lawyers in the field of legal assistance and protection
of victims of human rights abuses. Mizan has a decennial
experience in this field, and throughout the years its lawyers
attempted in a number of occasions to use CEDAW to litigate
their cases in domestic tribunals. However, to date no Jordanian
court has based any of its decision on CEDAW. It is envisaged
that, after the completion of the project, the target groups will
be better able to effectively use the provisions of CEDAW in their
case work.
The main activities carried out within the project include: the
provisions of legal assistance to vulnerable women on civil
matters, criminal cases, labour rights and other areas of law
which relate to discrimination and other violations of women's
rights; seminars, workshops and training courses that focus
primarily on the procedural aspects relating to the application of
CEDAW in Jordanian courts; the organisation and coordination
of litigation surgeries or working groups to practically assist
lawyers in preparing and litigating cases before the Jordanian
courts, through the use of CEDAW.
This publication is a critical feature of the project. The handbook
is designed to be an innovative and practical guide to CEDAW
and its application in the Jordanian judicial system. It is a
comprehensive instrument to be used by legal practitioners in
their day to day work.
Introduction 15
The Primary Objectives of the Handbook
The primary objective of this handbook is to enhance the Goals and objectives of the
capacity of lawyers, public attorneys, judges, and legal aid and handbook:
advocacy organisations to understand the status of CEDAW 1. Promoting women’s rights in
within the Jordanian legal system, and how the rights set forth Jordan, through the provision
of procedural and practical
in the Convention can be used in domestic courts. guidance.
2. Raising awareness on the
This manual covers the procedural aspects of CEDAW and importance of applying
tackles the legal implications of its provisions. This is achieved CEDAW, particularly among
by examining the authoritative legal opinions provided by groups concerned with its
judicial application.
international human rights treaty bodies, in addition to
jurisprudence, related to CEDAW that has emerged from national 3. Highlighting national,
regional and international
and regional courts. examples of the application
of CEDAW, to encourage
It is anticipated that this handbook will contribute to the domestic application.
development of other projects that will continue the work of 4. Encouraging public
promoting the use of CEDAW in the Jordanian legal system. authorities to accede to the
Optional Protocol to CEDAW.
Ultimately the main goals and objectives of this handbook can
be summarised as follows:
1. Promoting women’s rights in Jordan, through the provision
of procedural and practical guidance on how to implement
CEDAW. This will allow actors operating in the Jordanian
judicial system to understand the mechanisms and the means
to prosecute cases based on CEDAW.
2. Raising awareness of the importance of CEDAW, particularly
among groups concerned with its judicial application. At the
present time there is a general lack of awareness among legal
practitioners on how, why and when the Convention should be
applied.
3. Highlighting national, regional and international examples of
the application of CEDAW, to encourage domestic application.
16 Introduction
4. Encouraging the public authorities to accede to the Optional
Protocol to CEDAW. In fact, it is anticipated that if the
judiciary in Jordan applies the Convention and ensures the
respect for the rights stipulated therein, this will encourage
public authorities to accede the Optional Protocol, thus
accepting the procedural guarantees that it contains, in
particular the individual communication mechanism. It has
been noted that States that provide effective legal remedies
for the victims of discrimination are also more willing to
accede to the Optional Protocol.
How the Handbook is Structured and How to
Use it
The handbook addresses the provisions listed in CEDAW and
explores their ethos. It does not exhaustively examine each
individual article or the entire scope of application of CEDAW,
but it operates as an insightful tool for those looking towards its
implementation.
CEDAW is the primary international tool that aims at promoting
and protecting women’s rights, though there are other
significant documents. Therefore this handbook is not limited to
CEDAW, as it also analyses pertinent international human rights
instruments that are significant to women’s rights.
The manual explores the history of CEDAW in Jordan, including
Jordan’s reservations to the Convention; it looks at the Optional
Protocol to CEDAW, and underlines the importance of ratifying
the Protocol, since it represents the stronger tool available to
guarantee the compliance of public authorities to the provisions
of the Convention.
The handbook analyses the status of CEDAW within the
Jordanian legal system, including the role of legal practitioners
in ensuring the application of the provisions of the Convention.
Introduction 17
In light of the structure of the Jordanian legal system, a number
of recommendations are made on how to ensure the effective
application of the provisions of CEDAW. The handbook does
this by exploring the application of the Convention in other
legal jurisdictions, including its application by other States.
Jurisprudence is critical to gathering a technical understanding
of the ways in which Jordanian legal practitioners could use
CEDAW more effectively. The suggestion is not that Jordan
should directly emulate other states’ practice but rather they
should be inspired by, and benefit from it.
It should be kept in mind that CEDAW is not the only valuable
instrument in protecting women’s rights; there are also other
means that should be used in any effective and comprehensive
action. Nevertheless, as the original and most comprehensive
instrument challenging for the rights of women, CEDAW
remains the strongest asset in the work of legal practitioners in
Jordan. Ultimately, the aim of this handbook is to encourage the
development of a strategy for legal practitioners to support the
application of the provisions of CEDAW within the Jordanian
judicial system and therefore to ensure that the human rights of
women are protected.

1 Human Rights and the
International Convention on
the Elimination of All Forms of
Discrimination against Women
1 See http://www.un.org/en/
documents/udhr
2 See http://www2.ohchr.org/
english/law/ccpr.htm
3 See http://www2.ohchr.org/
english/law/cescr.htm
A significant question usually arises when
addressing women’s rights. It concerns the
importance and the need to have a separate
convention which deals exclusively with
women’s rights. All other international human
rights instruments in fact, explicitly clarify that
the rights they guarantee are to be enjoyed
equally by both men and women. Furthermore,
the Charter of the United Nations (1945)
clearly addresses the issue of equality and
stresses the principle of equality based on sex
in more than one of its provisions, particularly in
the section dedicated to fundamental rights. The
concept of equality is common across the three
major international human rights instruments,
the Universal Declaration of Human Rights
(UDHR - 1948)1, and the two International
Covenants on Civil and Political Rights (ICCPR -
1966) 2 and Economic Social and Cultural Rights
(ICESCR – 1966) 3.
20 Human Rights and the International Convention on the
Elimination of All Forms of Discrimination against Women
4 Human Rights Committee,
General Comment 28, Equality of
rights between men and women
(Article 3), U.N. Doc. CCPR/C/21/
Rev.1/Add.10 (2000).
Women’s Rights and the Universality of
Human Rights
The universality of human rights is recognised in all
international human rights instruments. Critical to the
protection of women’s rights, these international legal
instruments affirm the incompatibility of sex based
discrimination with the universal nature of human rights.
Article 2 of UDHR states that “everyone is entitled to all the
rights and freedoms set forth in this Declaration, without
distinction of any kind, such as […] sex”.
This principle is further enshrined under the ICCPR and the
ICESCR. Article 2(1) of ICCPR affirms the principle of equality
among all individuals, with Article 26 specifically prohibiting
discrimination based on sex. Article 2(2) of ICESCR emphasises
the prohibition of discriminating in the application of those
rights it sets forth on the basis of sex. Furthermore Article 3 of
both Covenants states “State Parties to the present Covenant
undertake to ensure the equal right of men and women to the
enjoyment of all […] rights set forth in the present Covenant”.
Numerous state obligations arise from the aforementioned
provisions. The Human Rights Committee confirms in General
Comment (GC) No. 28 (2000) 4 that “the State Party must not only
adopt measures of protection but also positive measures in all
areas so as to achieve the effective and equal empowerment of
women”. Referring to Articles 2 and 3 of ICCPR, in paragraph
4 the Human Rights Committee asserts that these articles
“mandate States Parties to take all steps necessary, including the
prohibition of discrimination on the ground of sex, to put an
end to discriminatory actions, both in the public and the private
sector, which impair the equal enjoyment of rights”.
One of the most important opinions expressed by the Human
Rights Committee, in paragraph 5 of GC 28, is that State Parties
to the Covenant “should ensure that traditional, historical,
religious or cultural attitudes are not used to justify violations of
women’s right to equality before the law and to equal enjoyment
of all Covenant rights”.
Human Rights and the International Convention on the 21
Elimination of All Forms of Discrimination against Women
Paragraph 31 of the same GC also asserts that Article 26 of
ICCPR “requires States to act against discrimination by public
and private agencies in all fields”. To explain this point, the
Committee utilised examples from cases that were submitted
to the Committee itself, such as the Aumeeruddy- Cziffa et al
v. Mauritius case. This case is about a woman from Mauritius
that lost her citizenship because she married a foreigner. As this
would not happen to a male Mauritian who married a foreign
female, the committee concluded that Mauritanian legislation
directly discriminated on the ground of sex, and found it to be in
breach of Article 26 of the Covenant.
It is clear that while discrimination against women can be open
and blatant, such as in the above case, often it is much more
subtle. In many instances discrimination is not codified, but it
is in practice that discrimination exists. Paragraph 31 continues,
pointing to the fact that there are many areas where women
are discriminated against, without any legal protection, with
the example that “a large proportion of women are employed
in areas which are not protected by labour laws, that prevailing
customs and traditions discriminate against women, particularly 5 See http://www2.ohchr.org/
english/law/crc.htm
with regard to access to better paid employment and to equal pay
for work of equal value”. 6 See http://www2.ohchr.org/
english/law/cat.htm
In addition to the UDHR and the two International Covenants, 7 See http://www.unesco.org/
there are many other international and regional human rights education/pdf/DISCRI_E.PDF
conventions which contain provisions that seek to protect the
8 See www.un.org/icc
rights of women such as: the Convention on the Rights of the
Child (1989) 5 , the Convention Against Torture and Other Cruel, 9 See http://www.icrc.org/
web/eng/siteeng0.nsf/htmlall/
Inhuman or Degrading Treatment (1985) 6, the Convention
genevaconventions
Against Discrimination in Education (1960) 7, and the Rome
Statute of the International Criminal Court (2003) 8, the Geneva 10 See http://www.hri.org/docs/
ECHR50.html
Conventions (1949) and its Additional Protocols (1977) 9 . Regional
instruments include the European Convention for Human 11 See http://www.hrcr.org/docs/
Rights10, the African Charter on Human and Peoples’ Rights wBanjul/afrhr.html
and its Additional Protocol II11, and the Arab Charter on Human 12 See http://www.diplomacy.edu/
Rights12. arabcharter/hypertext.asp
22 Human Rights and the International Convention on the
Elimination of All Forms of Discrimination against Women
Equality between women
and men in the enjoyment
of human right has
long been included in
international human rights
and humanitarian law.
Nevertheless the necessity
to protect women’s rights
through specific instruments
continues to exist.
In conclusion, equality between women and men in the
enjoyment of human right has long been included in
international human rights and humanitarian law. Nevertheless
the necessity to protect women’s rights through specific
instruments continues to exist.
International Instruments on Women’s
Rights
The protection of women’s rights does not stop with the formal
recognition of equality included in the various international
human rights instruments. The United Nations, in fact, have
adopted a number of additional international conventions and
declarations related specifically to women:
1. Convention on the Political Rights of Women: adopted by the
General Assembly in 1952 and entered into force in 1954.
This Convention emphasises the equality of women and men
in their eligibility to stand for elections to public office and
leadership positions.
2. Convention on the Nationality of Married Women: adopted by
the General Assembly in 1957, decreed the inadmissibility of
an automatic change in the nationality of women upon, or
subsequent to, entering a marriage contract.
3. Convention on Consent to Marriage, Minmum Age for
Marriage and Registration of Marriages: approved by the
General Assembly in 1962.
4. Declaration on the Elimination of Discrimination Against
Women: adopted by the General Assembly in 1967, which
paved the way for CEDAW. The declaration states that
discrimination against women is an affront to human dignity
and stresses the equality of women and men in political
rights, in the acquisition of nationality, and in marriage.
Human Rights and the International Convention on the 23
Elimination of All Forms of Discrimination against Women
5. Declaration on the Elimination of Violence Against Women: CEDAW is defined as
adopted by the General Assembly in 1993. The Declaration is a “an international bill of
women’s rights”. It is a
qualitative addition to the previous international instruments
comprehensive international
because it is the first international instrument directly convention which addresses
dealing with violence against women. areas specifically relating
to women. It compiles
previously recognised
rights, while adding new and
Defining the Convention on the Elimination of innovative provisions.
All Forms of Discrimination Against Women
The General Assembly of the United Nations adopted the
Convention on the Elimination of All Forms of Discrimination
Against Women (CEDAW) on 18 September 1979. The Convention
has since then been almost universally accepted, with 185 State
ratifications13; notable exceptions include the United States, Iran
and the United Arab Emirates.
The idea of the Convention was first proposed by the United
Nations Commission on the Status of Women. The Declaration
on the Elimination of Discrimination Against Women (1967) had
paved the way for the Convention. The General Assembly decision
to make the decade 1976-1985 the United Nations Decade for
Women created the right momentum for the preparation of the
Convention. Finally CEDAW entered into force on 3 September
1981. CEDAW served to enshrine the moral obligations already
contained in the Declaration into legally binding obligations.
In the preamble of CEDAW, the Convention is defined as “an
international bill of women’s rights”. It is a comprehensive
international convention which addresses areas specifically
relating to women. CEDAW compiles previously recognised
rights, including the prohibition of discrimination in the
enjoyment of rights, while at the same time adding new and
innovative provisions, such as: equality in public and private
13 See http://www.un.org/
life, challenging socio-cultural practices of discrimination, and womenwatch/daw/cedaw/states.
addressing in particular the situation of rural women. htm
24 Human Rights and the International Convention on the
Elimination of All Forms of Discrimination against Women
The primary goal of CEDAW is to bind all State Parties to the
commitment to eliminate all forms of discrimination against
women: most notably in the workplace, education, public life,
health and family. CEDAW is significantly different from its
predecessors in that it emphasises both the protection of rights
as well as non-discrimination.
Like other human rights conventions, CEDAW only identifies
the general principles and framework of the rights it sets forth.
It leaves State Parties to choose the methods of implementation,
to determine how best to integrate CEDAW within their legal
systems, and to establish suitable means for its enforcement.
Individual States’ autonomy to decide how to integrate CEDAW
into both their legal and social systems has resulted in a diverse
range of implementation mechanisms adopted by States. For
instance some States apply CEDAW’s provisions directly, others
integrate them into domestic legislation, while some have
enshrined the principles of CEDAW within their Constitution.
Ratification, Signature, and Accession to the
Convention
Signing CEDAW, as any other convention, represents the first
stage in the formal adoption of the document by the State.
At this point the State is not legally bound to adhere to the
provisions of the Treaty. However, Article 18 of the Vienna
Convention on the Law of Treaties requires States to avoid any
conduct that undermines the Convention in question or disrupts
its object and purpose.
Ratification signifies the clear consent to the State Party to
adhere to the Convention. A distinction must be made though
between international ratification and national ratification.
National ratification does not render the State internationally
bound to the provisions of the Convention. For this to occur,
the State Party must submit the convention to the depository,
defined within the Convention. In the case of CEDAW, the
depository is the Secretary-General of the United Nations.
Human Rights and the International Convention on the 25
Elimination of All Forms of Discrimination against Women
Accession to a treaty is similar to ratification in terms of action
and legal effect. According to articles 1, 2, 5 and 11 of the Vienna
Convention on the Law of Treaties, accession is the “international
act so named whereby a State establishes on the international
plane its consent to be bound by a treaty”. Accession differs from
ratification in the sense that it is not preceded by signature, in
other words it allows for any non-signatory State to become a
party to the Convention
Basic Principles of CEDAW
CEDAW was developed to resolve the gaps in previous
instruments that address women’s rights. In particular, CEDAW
presents five innovative features that are missing from these:
1. The comprehensive and complete elimination of all forms
of discrimination against women: the Convention seeks the
elimination of all forms of discrimination against women
whether in the public or private sphere. In other words, it
aims at eliminating discrimination not only in the vertical
relationships between state and citizen but also in the
horizontal relationships within the community. Therefore it
aims not only at eliminating discrimination based on sex in
public policies and governmental practices, but it also seeks to
eradicate societal discrimination including within individual
relationships, the family and the community.
2. Changing the structural, social and cultural patterns of
society: one of the essential characteristics of CEDAW is
that it compels State Parties to eliminate and change all the
structural, social and cultural patterns and practices that
reinforce traditional gender stereotypes, which leave women
vulnerable to discrimination.
3. Interim positive measures (positive discrimination): the
fourth article of the Convention urges State Parties to take
positive measures to accelerate de facto equality between men
and women. These interim measures are described as positive
26 Human Rights and the International Convention on the
Elimination of All Forms of Discrimination against Women
14 Vienna Convention on the Law
of Treaties, Vienna, 23/05/1969,
Art. 2(a).
discrimination. This form of discrimination is not prohibited
under international human rights law. These measures will
be ended whenever the desired goal of equality is reached.
Examples of such temporary measures include establishing
quota systems which promote the prioritisation of women.
This includes establishing a minimum number of women to
be enrolled in universities, to hold parliamentary seats or to
be senior staff in organisations.
4. The situation of rural women: another important feature
of CEDAW is that it is the first international convention to
address the situation of rural women specifically. Article
14 of the Convention obliges states to take into account
the particular problems facing rural women and the vital
role undertaken by them. State Parties are required to take
appropriate measures to ensure that rural women also fully
enjoy the rights set out in the Convention.
5. The role of women in production and development: the
Convention seeks to integrate women into the process of
production and development in various fields. Key areas
include the work place, political participation, family life and
education.
These areas will be addressed in more details in Chapter 3, which
specifically explores the rights protected under the Convention.
State Parties’ Obligations under the
Convention
It is essential to take into consideration that human rights
are codified in treaties, which are defined as “international
agreement[s] concluded between States”14 that create rights
for individuals under the jurisdiction of these States. Treaties,
including CEDAW, create both positive and negative obligations
for State Parties. States have the negative obligation to refrain
Human Rights and the International Convention on the 27
Elimination of All Forms of Discrimination against Women
from violating the rights set forth in CEDAW (obligation to
respect), while at the same time they bear the duty to protect
and fulfil these rights through the adoption and implementation
of appropriate legislations and policies throughout all the
spheres of state sovereignty. Human rights, are in other words,
state obligations. This means that only State Parties can breach
the provisions of CEDAW and other human rights treaties. In
practice this also means that the Convention can be used in
domestic courts only when the relevant case involves a failure
by a state body of the obligation to respect, protect and fulfill
individual rights as foreseen by CEDAW. Consequentially,
physical and legal persons acting in their private capacity
normally cannot violate human rights, and it will not be possible
to hold them accountable for human rights violations. It is
necessary for the state to be involved to make CEDAW applicable.
CEDAW has created a number of fundamental obligations
relating to the elimination of all forms of discrimination
against women. Article 2 of the Convention identifies the most
important commitments:
1. Include the principle of equality between men and women
in national legislation and, where applicable, in the
Constitution;
2. Prohibit discrimination against women and determine
appropriate penalties should this prohibition be violated;
3. Eliminate all discriminatory legislation and refrain from any
other direct and indirect discriminatory practice;
4. Ensure effective remedies through competent courts and other
public bodies in response to acts of discrimination;
5. Ensure the elimination of discriminatory acts against
women, whether carried out by individuals, organisations or
institutions;
28 Human Rights and the International Convention on the
Elimination of All Forms of Discrimination against Women
Article 28 of CEDAW
allows State Parties to
make reservations to its
provisions, provided that
these reservations do not
contravene the object and
purpose of the Convention.
15 Among the Arab countries that
placed reservations on this article
are: Kuwait, Algeria, Bahrain,
Tunisia, Egypt, Lebanon, Iraq and
Yemen.
Moreover in terms of obligations, under Article 17, State Parties
must submit periodic reports, including an initial report, to
the Committee on the Elimination of Discrimination Against
Women in a timely manner describing the progress made in
implementing the Convention.
Reservations
Article 28 of CEDAW allows State Parties to make reservations to
its provisions, provided that these reservations do not contravene
the object and purpose of the Convention. This means that the
Convention considers the criteria of inadmissibility as set forth
in the Vienna Convention on the Law of Treaties.
During the ratification stage, many State Parties have made
reservations to the provisions of CEDAW. Some of these
reservations are procedural and do not affect the subject and
purpose of the Convention. For example, Article 29(1) asserts
that “any dispute between two or more States Parties concerning
the interpretation or application of the present Convention
which is not settled by negotiation shall, at the request of one of
them, be submitted to arbitration. […] any one of those parties
may refer the dispute to the International Court of Justice”.
Article 29(1) has been widely criticised by States, and has been
subjected to the largest number of reservations15 but since it is
a procedural article, reservations to it are consistent to Article
28(2), as they do not violate key principles of the Convention.
On the other hand, a great number of reservations made
on articles of CEDAW do affect the object and purpose of
the Convention, resulting in a violation of Article 28(2). The
Convention however, lacks a mechanism which allows for the
rejection of invalid reservations. In fact, the main instrument to
allow for this, Article 29(1), has had so many reservations placed
on it that it was rendered almost unusable.
The Committee on the Elimination of Discrimination Against
Women (the Committee) has expressed concern about the
Human Rights and the International Convention on the 29
Elimination of All Forms of Discrimination against Women
amount, nature and scope of reservations made by the State
Parties16. The World Conference on Human Rights, held in
Vienna in 1993, was compelled to call for the reduction of
the reservation to human rights conventions as they are in
contradiction with the spirit of human rights treaty law itself.
Arab States’ reservations primarily revolve around two issues: a
conflict with either Islamic law or national law. The majority of
reservations of these countries focus on articles 2, 7, 9, 10, 16 and
19 of CEDAW17. There is no doubt that many of these reservations
made by Arab States, as well as a number of the Islamic States,
are in violation of Article 28(2) of the Convention.
The Committee has discussed the reservations of some Arab and
Islamic countries, and has engaged in constructive dialogue with
them, with particular regard to reservations on Articles 2 and 16
as they are considered central to the Convention. The Committee
has followed up on the issue of reservations since 1998, and has
since worked with States in order to encourage them to withdraw
or modify any reservations that violate Article 28(2). 16 See: General Recommendation
No. 4 (Sixth session, 1987), General
Recommendation N. 20 (Eleventh
The Committee has stressed that difference in cultural, religious Session, 1992), and paragraphs 41-
49 of General Recommendation N.
and social structures and values are not sufficient reasons
21 (Thirteenth Session, 1994).
to deny the universality of women’s rights. Many Arab and
Muslim countries have responded positively to the concerns 17 These articles are respectively
dealing with: the prohibition of
and recommendations of the Committee withdrawing their
discrimination against women in
reservations. Many non- Arab/Islamic countries including the national constitutions and
France, Canada, Brazil, Poland, Romania and Jamaica, have also legislations, including repeal
the existing laws, customs and
withdrawn reservations. Article 22(1) of the Vienna Convention discriminatory practices; equality
on the Law of Treaties permits the withdrawal of reservations at in public life; equality in matters
any time. This withdrawal is to be presented in writing. Upon of nationality; equality in legal
capacity; equal rights to marriage
submitting this, all the legal consequences associated with the and the mechanism of settlement of
reservation automatically become invalid. disputes between States Parties.

2 Rights
guaranteed in the
Convention on the Elimination
of All Forms of Discrimination
against Women.
CEDAW consists of thirty articles organised
into six parts:
1. the definition of discrimination against women
and the procedures and measures necessary to
eradicate it;
2. the political rights of women and their
participation in public life, in addition to
equality in matters related to nationality;
3. equality in the fields of education,
employment, health and the condition of rural
women;
4. legal capacity of women and marital rights;
5. procedural elements aimed at supervising the
application of the Convention;
6. concluding provisions relating to the
administrative aspects of the Convention itself.
32 Rights guaranteed in the Convention on the Elimination
of All Forms of Discrimination against Women.
The first four parts of the Convention will be analysed in the
present chapter, detailing the ethos of the Articles and also,
where relevant, debating their limitations. The fifth part, on the
mechanisms of control and supervision for the implementation
of the Convention, will be the focus of chapter 4.
Definition of Discrimination Against Women
Article 1 of CEDAW defines the term 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”.
As the leading Article in the Convention, it is not surprising
that this definition has been the subject of much debate. The
Convention adopts a narrow definition of equality which does
not include factors leading to discrimination. Inequality on
the basis of sex is often closely related to social and cultural
structures prevailing within a community, which leads to direct
or indirect discrimination against women. CEDAW attempts to
challenge this issues but it does not include this concept within
the definition.
The Convention has also been criticised because it continues to
measure the status and equality of women in relation to men.
However, it is impossible to remove such comparison while
the legal discourse continues to be male-dominated. Similarly
the criteria and procedures established in Article 1 are based
on classical traditions of treaty law and therefore continue to
operate within the prevailing patriarchal approach, which itself
contains forms of hidden discrimination.
In any case, it is possible to assert that the concept of
discrimination against women as stated in Article 1 of the
Convention, does not aim at removing all differences between
Rights guaranteed in the Convention on the Elimination 33
of All Forms of Discrimination against Women.
men and women. The Convention itself, in fact, acknowledges
diversity between man and women by including provisions on
reproduction, motherhood and child care.
There is an important question arising from Article 1 that relates
to the scope and application of the Convention: is the ratification
of CEDAW all that is needed to address discrimination against
women?
The answer is undoubtedly no. CEDAW embodies the minimum
standards of protection that State Parties to the Convention shall
provide. Therefore it does not represent the sole instrument that
can be used to eradicate discrimination against women. It is the
foundation on which national law should be developed in the
struggle to eliminate all forms of discriminations against women.
Prohibition of Trafficking in Women and
Exploitation of Prostitution
Under Article 6 of CEDAW, “States Parties shall take all
appropriate measures, including legislation, to suppress all forms
of traffic in women and exploitation of prostitution of women”.
Trafficking in women and the exploitation of prostitution
violates a number of internationally recognised human rights
such as the prohibition of slavery, forced labour and inhumane
and degrading treatment. Moreover, the Rome Statute of the
International Criminal Court considers that these may amount
to a crime against humanity or a war crime if either of these acts
are committed in a systemic manner or used as an instrument of
war against a civilian population18.
The Committee on the Elimination of Discrimination Against
Women in its General Recommendation No. 19 (1992) addresses
the issue of trafficking and exploitation of prostitution. It
18 The Rome Statute of the
asserts that: “poverty and unemployment increase opportunities International Criminal Court,
for trafficking in women. […] there are new forms of sexual Article 7 / 1 / a.
34 Rights guaranteed in the Convention on the Elimination
of All Forms of Discrimination against Women.
19 Committee on the Elimination
of Discrimination against Women,
General Recommendation No. 19
(eleventh session, 1992), Violence
against women.
20 Protocol to Prevent, Suppress
and Punish Trafficking in Persons
and in particular women and
children, supplementing the United
Nations Convention Against
Transnational Organized Crime,
Article 5.
21 Ibidem, Article 3(a).
exploitation, such as sex tourism, the recruitment of domestic
labour from developing countries to work in developed
countries, and organised marriages between women from
developing countries and foreign nationals. These practices are
incompatible with the equal enjoyment of rights by women and
with respect for their rights and dignity. They put women at
special risk of violence and abuse”19 .
Trafficking in women is a transnational organised crime. It is
prohibited under the Optional Protocol to the United Nations
Convention Against Transnational Organized Crime (2000) 20
which deals with the prevention, suppression and punishment
of trafficking in persons, especially women and children. The
Protocol requires the State Parties to criminalise trafficking
in persons, including if an individual initiates, contributes or
organises, or direct others to act. Moreover, States are required to
take appropriate measures to prevent trafficking of persons.
The Protocol delineates human trafficking as: “the recruitment,
transfer, harboring or receipt of persons, by means of the threat
or use of force or other forms of coercion, of abduction, fraud, of
deception, of the abuse of power or of a position of vulnerability
or of the giving or receiving of payments or benefits to achieve
the consent of a person having control over another person,
for the purpose of exploitation. Exploitation shall include, at a
minimum, the exploitation of the prostitution of others or other
forms of sexual exploitation, forced labour or services slavery or
practices similar to slavery, servitude or the removal of organs”21.
The protocol stresses, in Article 3(b), that the consent of the
victim of trafficking does not allow for exceptions from the
provisions of the Protocol.
Political Rights and Participation in Public Life
Under Article 7, State Parties to CEDAW “shall take all
appropriate measures to eliminate discrimination against
women in the political and public life of the country”. This
Rights guaranteed in the Convention on the Elimination 35
of All Forms of Discrimination against Women.
article demands State Parties ensure women have the equal
right to vote as men in all elections and public referenda, the
right to participate in the formulation and implementation
of government policy, and the right to hold public office and
perform all public functions. The article also guarantees
women’s right to stand in all elections, in addition to
participating in any non-governmental organisation concerned
with the public life of the country such as political parties, trade
unions and labour unions.
Article 8 of the Convention recognises women’s right to
“represent their Governments at the international level and to
participate in the work of international organizations”.
Articles 7 and 8 indicate very clearly that women should be on an
equal footing with men in regard to their political competency,
expression of public will and participation in various aspects
of the public life of their country. It is noticeable however that
in an alarming number of countries, women continue to be
marginalised from public life.
Expanding women’s participation to public life entails measures
and procedures beyond the simple recognition of women’s
political rights. In order to determine the exact nature of the
State Parties’ obligations, two key concepts relating to political
rights of women should be noted:
A. The empowerment of women relates to any activity intended
to contribute to the development of women’s capabilities,
knowledge, awareness, and all that consequently leads to the
enhancement of their participation in public life, and other
fields. In other words, the term empowerment applies to
interventions that support women’s potential to improve their
abilities and to engage in all areas of public life. This suggests
that women’s rights are dynamic and should continue to be
developed until women have reached their full potential in
political, economic, family, and social life as well as in access
to health.
36 Rights guaranteed in the Convention on the Elimination
of All Forms of Discrimination against Women.
B. The quota system is based on the idea of allocating a specific
minimum quota for women in different institutions or
during elections. Jordan, for example has allocated a
minimum number of parliamentary seats for women. This
is a temporary measure that should encourage the full
participation of women in Jordanian political life, and that
should be discontinued once this goal has been achieved.
Right to Nationality
The Convention recognises in Article 9, that women have “equal
rights with men to acquire, change or retain their nationality.
They shall ensure in particular that neither marriage to an
alien nor change of nationality by the husband during marriage
shall automatically change the nationality of the wife, render
her stateless or force upon her the nationality of the husband”.
In other words, the Convention guarantees women the right to
retain their own nationality and rejects automatic changes in
nationalities in relation to the husbands' nationality.
Additionally, Article 9(2) guarantees that women are equal
to men with respect to passing their nationality onto their
children. All Arab Countries have made a reservation to this
article, with the exception of Tunisia, Morocco, Egypt and Iraq.
The national law of most Arab States does not recognise maternal
jus sanguinis as a basis for acquiring nationality. Attaining
citizenship is contingent upon, and restricted to paternal jus
sanguinis. This creates a clear distinction between men and
women, where the father can pass his nationality to children by
virtue of law, while the mother does not have the same right.
Rights guaranteed in the Convention on the Elimination 37
of All Forms of Discrimination against Women.
Right to Education
Article 10 of CEDAW deals with equality in education, requiring
State Parties to take all appropriate measures to ensure equality
in this field and especially to ensure gender equality in
vocational education, and enrolment in educational institutions
of all levels and types. Article 10 also ensures equality in the
school curricula, quality of facilities, educational services, and
standards of teaching including levels of qualifications, access to
grants and educational loans, and the reduction in dropout rates
among female students.
This article calls on State Parties to eliminate gender
stereotyping within the school system. This should occur at
all stages of education and requires a revision of curricula
and teaching methods to achieve this goal, in addition to the
dissemination of the principles and basic concepts contained in
the Convention.
Under Article 10, it is not permissible, for example, to direct girls
towards a particular career, while directing the boys to other
careers, based on gender roles. Curricula, content and teaching
methods that prioritise men, or encourage the discrimination
of women are also prohibited. Examples of this include the
portrayal of women as housewives and men as university
professors, ministers or ambassadors.
Article 10 of CEDAW is closely linked to Article 13 of the ICESCR,
which addresses the right to education, obliging States to provide
free primary education for all. The Committee on Economic,
Social and Cultural Rights relates the right to education to
articles 2(2) and 3, and then interprets such articles “in the
light of the UNESCO Convention Against Discrimination in
Education, the relevant provisions of the Convention on the
Elimination of All Forms of Discrimination Against Women, the
International Convention on the Elimination of All Forms of
22 General Comment No. 13 on
Racial Discrimination, the Convention on the Rights of the Child
Article 13 of the International
and the ILO Indigenous and Tribal Peoples Convention, 1989 Covenant on Economic, Social and
(Convention No. 169)” 22. Cultural Rights, paragraphs 33-34.
38 Rights guaranteed in the Convention on the Elimination
of All Forms of Discrimination against Women.
23 H. Charlesworth, C. Chinkin,
S. Wright, Feminist Approaches
to International Law, A J I L,
Vol.85,1991, pp.613-645.
Employment Rights
Article 11 obligates the States Parties to take all appropriate
measures and procedures to remove all forms of discrimination
in employment, and to recognize women’s labour rights as equal
to those of men. Some of these rights are:
1. The right of women to work, and the right to choose a
profession;
2. The right to enjoy the same employment opportunities
available to men under the same criteria for appointment;
3. The right to obtain the same benefits as men, including
promotion, security, access to training and qualification
required to work;
4. Equal pay for equal value, with equality in social security and
the same access to paid leave as men;
5. The right to health protection and safety conditions of
employment, including the protection of the reproductive
women;
6. Prohibition of dismissal from work due to pregnancy,
maternity leave or marital status;
7. The right to special protection during pregnancy, particularly
if the work is harmful to the pregnancy.
Article 11 of the Convention contains an important requirement
for State Parties: they have to review legislation in the light of
developments in scientific and technological knowledge.
There is a fundamental question related to labour rights of
women that is left unclear by CEDAW: is domestic work or work
undertaken by rural women covered under Article 11? Articles
11 and 14 of CEDAW continue to distinguish between the public
and private sectors of women’s work. This has prompted some
to argue that the labour provisions included in CEDAW are
inadequate23 .
Rights guaranteed in the Convention on the Elimination 39
of All Forms of Discrimination against Women.
Right to Health
Women’s health can be defined as “women’s spiritual, emotional,
cultural, and physical well-being, and is determined by the
social, political, cultural and economic context of women’s lives,
as well as by biology”24 . Health is a holistic concept covering the
physical in addition to social, cultural and political factors which
impact health. This means that health provision should take into
account all these features.
Article 12 of CEDAW guarantees equal rights in the provision of
health care services. It recognises the right of women to access
appropriate health care services in connection with pregnancy,
confinement and post-natal care, granting free services where
necessary, as well as adequate nutrition during pregnancy and
lactation. This article, therefore, includes rights that apply
exclusively to women.
The Committee on the Elimination of Discrimination Against
Women in its General Recommendation No. 12 (1989) indicated
violence against women as causing a negative impact on women’s
health. It recommends that State Parties provide support services
for women who are victims of assault or abuse.
In its General Recommendation No. 14 (1990), the Committee has
raised concerns on the impact that some ‘traditional’ practices,
such as female genital mutilation, have on the health of women.
It therefore called on State Parties to take appropriate and
effective measures to eradicate these harmful practices.
Among other topics addressed by the Committee regarding
a women’s right to health is the prevention of the Acquired
Immune Deficiency Syndrome (AIDS). General Recommendation
No. 15 (1990) urged States to pay special attention to the rights
and needs of women and children when devising their strategies
and programmes to control the spread of AIDS, taking into 24 Qurtaji, Women in the UN
account factors related to reproductive health of women and System. An Islamic Perspective,
Beirut: University Foundation for
women’s status in some societies, which makes them particularly Studies and Publications, 2006,
vulnerable to AIDS. p. 349.
40 Rights guaranteed in the Convention on the Elimination
of All Forms of Discrimination against Women.
Economic Rights
In addition to the right to work, set out in Article 11 and
explained above, Article 13 affirms that State Parties should
eliminate economic discrimination against women, including
the right to access to the family benefits, the right to bank loans,
mortgages and other forms of financial credit.
Article 14, requires “State Parties to take all appropriate
measures to eliminate discrimination against women in
rural areas in order to ensure, on the basis of equality of men
and women, that they participate in and benefit from rural
development and, in particular, shall ensure to such women the
right [to]:"
1. Participate in the elaboration and implementation of
development planning at all levels;
2. Benefit directly from social security programmes;
3. Obtain functional literacy skills and increase their technical
proficiency;
4. Organise self-help groups and co-operatives in order to obtain
equal access to economic opportunities through employment
or self employment.
Article 14 has obligated State Parties to take all appropriate
measures to ensure the application of the provisions of the
Convention for rural women. It is noted that the Convention
emphasises that the work of rural women must be paid for.
Equality in civil matters, marriage and family
life
Article 15 of the Convention recognises the equality between
women and men before the law. It also recognises that women
have a legal capacity identical to that of men and the same
opportunities to exercise such capacity. In particular, it gives
women equal rights to conclude contracts and to administer
property, treating them equally in all stages of court and
Rights guaranteed in the Convention on the Elimination 41
of All Forms of Discrimination against Women.
tribunal procedure. State Parties to the Convention are bound With regard to the freedom
to guarantee that men and women possess the same rights with of movement and the choice
of place of residence, Jordan,
regard to freedom of movement and the freedom to choose
Algeria, Bahrain, Syria and
residence and domicile. Morocco have all placed
a reservation on Article
There is no doubt that laws in force in many Arab and Islamic 15(4). However, as of 2008,
countries, including those derived from Islamic law, recognise Morocco has withdrawn
all its reservations to the
the rights of women to financial independence, including full
Convention while Jordan
entitlement to conclude contracts, and to own funds. With withdrew its reservation to
regard to the freedom of movement and the choice of place of this article in 2009.
residence, Jordan, Algeria, Bahrain, Syria and Morocco have
all placed a reservation on Article 15(4). However, as of 2008,
Morocco has withdrawn all its reservations to the Convention
while Jordan withdrew its reservation to this article in 2009.
Human rights instruments including CEDAW have recognised
women’s right to marriage and a family life25 . Article 16 of
CEDAW determines a women’s right to enter marriage, the right
to choose a spouse freely and with full consent, and equality of
the sexes within the marriage.
There is no shared international definition of family. The
difficulty with the concept of family relates primarily to
religious, cultural and social factors. For example, in terms of
criteria for determining what constitutes marital relationship,
the legal systems of the State Parties differ. These differences
primarily relate to the age of marriage, if the marriage contract
can be terminated, and same-sex marriage. Legal systems in the
Arab and Islamic countries do not recognise the latter type of
marriage, for example.
There are other challenges relating to family rights, such as
national legislation relating to citizenship rights when entering
marriage with an alien and within intra-family relationships.
Perhaps this difficulties and differences explain why the 25 See articles No. 11 of the Universal
drafters of CEDAW chose to allow States to determine their own Declaration of Human Rights, No. 23
definition of family. of the International Covenant on
Civil and Political Rights and No.
Article 16 of the Convention asserts the principle of equality 12 of the European Convention of
between women and men in all matters relating to marriage Human Rights.
42 Rights guaranteed in the Convention on the Elimination
of All Forms of Discrimination against Women.
Despite the fact that Article
16 attempted to find common
grounds between different
legal systems, it is the subject
to many reservations, in
particular by a number of Arab
and Islamic countries, such as:
Jordan, Algeria, Tunisia, Iraq,
Kuwait, Lebanon, Libya,
Egypt, Bahrain and Syria.
Morocco withdrew its
reservation to this article in
2008. These reservations have
sparked wide-ranging legal
arguments, as they violate
Article 28(2) of the
Convention.
26 Integration of the Human
Rights of Women and the
Gender Perspective – Violence
Against Women, Report of the
Special Rapporteur on violence
against women, its causes and
consequences - 27/02/ 2003, E/
CN.4/2003/75/Add.
and family relations, stressing that women have the same rights
and responsibilities that are granted to men at the time of
concluding the marriage contract, during marriage and in the
occurrence of its dissolution. It is also emphasised that women
and men have the same rights and responsibilities as parents,
irrespective of their marital status, in matters relating to their
children, and in all cases the best interests of the child should
prevail. Women are also given the same right to decide freely
and responsibly on the number and spacing of their children and
in matters of custody, guardianship of children and adoption.
Despite the fact that Article 16 attempted to find common
grounds between different legal systems, it is the subject to
many reservations, in particular by a number of Arab and
Islamic Countries, such as: Jordan, Algeria, Tunisia, Iraq, Kuwait,
Lebanon, Libya, Egypt, Bahrain and Syria. Morocco withdrew
its reservation to this article in 2008. These reservations have
sparked wide-ranging legal arguments, as they violate Article
28(2) of the Convention. Rights related to family and marriage
remain the most controversial and disputed aspects of the
Convention.
Prohibition of Violence Against Women
CEDAW does not include provisions that directly address the
issue of violence against women. Subsequent documents,
however, have addressed this issue, particularly the Beijing
Declaration presented at the Fourth World Conference on
Women (1995). Previously, in 1994, in an international effort to
combat violence against women, the United Nations appointed a
Special Rapporteur on violence against women. The Rapportuer
has produced various reports including descriptions of forms
of violence against women in addition to presenting possible
frameworks to ensure protection for women 26.
The Committee on the Elimination of Discrimination Against
Women has also addressed the deficiencies of the Convention
through the use of General Recommendations. General
Rights guaranteed in the Convention on the Elimination 43
of All Forms of Discrimination against Women.
Recommendation No. 12 in paragraph 8 (1989), requests State CEDAW does not include
Parties to the Convention to include information concerning provisions that directly address
the issue of violence against
legislation implemented to protect women from all forms of
women. The Committee
violence, including sexual violence, abuse within the family and has addressed this topic in
sexual harassment, in their periodical reports to the Committee. General Recommendations.
No. 12 (1989), and No. 19(1992).
The Committee used General Recommendation No. 19 (1992) It stated that violence
against women is a form of
to clarify the State Parties obligation to eliminate all forms of
discrimination that falls under
violence against women within the framework of CEDAW, both Article 1 of the Convention.
in the private and public sphere. The Committee stated that
violence against women is a form of discrimination that falls
under Article 1 of the Convention 27. The Committee therefore
deals with violence against women under the principle that it
is a form of discrimination, and does not consider it an issue
independent from the core principles of CEDAW. The Committee
also emphasises that violence against women constitutes a
violation of human rights and fundamental freedoms that places
limitations on the enjoyment of those rights28.
The first article of the UN Declaration for the Elimination of
Violence Against Women (1993) defines violence against women
as “any act of gender-based violence that results in, or is likely
to result in, physical, sexual or psychological harm or suffering
to women, including threats of such acts, coercion or arbitrary
deprivation of liberty, whether occurring in public or in private
life”. Violence against women therefore encompasses any forms
of physical, sexual and psychological violence occurring within
the family, the community or committed by the State29 .
The Declaration also stated that human rights that may be
negatively affected by violence against women include: the right
to life, the right to equal protection before the law, the right to
liberty and security of person, the prohibition of all forms of
discrimination, the right to health, the right to just conditions
of work and the prohibition of torture and other inhuman, cruel, 27 General Recommendation No.
19, supra note 19, para. 4.
and degrading treatment.
The Declaration for the Elimination of Violence Against Women 28 Ibidem, Para. 5.
urged States to work seriously to prevent acts of violence
29 UN Declaration for the
against women, to criminalise it and to determine appropriate Elimination of Violence against
punishments. Women (1993), Article 2.
44 Rights guaranteed in the Convention on the Elimination
of All Forms of Discrimination against Women.
The Declaration for the
Elimination of Violence
Against Women stated that
human rights that may be
negatively affected by violence
against women include: the
right to life, the right to equal
protection before the law, the
right to liberty and security
of person, the prohibition of
all forms of discrimination,
the right to health, the right
to just conditions of work and
the prohibition of torture and
other inhuman, cruel, and
degrading treatment
30 See http://www.oas.org/
juridico/English/treaties/a-61.html
31 Human Rights Committee
General Comment No. 28, Equality
of rights between men and women
(article 3), 29/03/2000, CCPR/C/21/
Rev.1/Add.10, para. 5. Similar views
were expressed by other UN bodies;
in this regard see United Nations
General Assembly, Sixty-first
session, Intensification of efforts
to eliminate all forms of violence
against women, A/RES/61/143,
30/01/2007.
32 ECrHR, Agdin v. Turkey,
25/09/1997, para. 86.
Within regional mechanisms, in 1994, the Organization of
American States (OAS) approved the Convention to Prevent and
Eradicate Violence Against Women and established punishments
for it30. A second additional protocol to the African Charter on
Human and Peoples Rights on the Rights' of Women in Africa has
also been adopted. This Protocol was inspired by concepts and
basic principles contained in various international instruments
on women, most importantly it details the obligation of State
Parties to criminalise “harmful practices, whatever their
form or appearance that would harm the rights of women,
fundamental freedoms, and contrary to recognized international
standards”. It makes clear that violence against women includes
any practices resulting in harm to women, including those
practices that are justified on the basis of tradition, religion or
culture. This concept supports the vision of the Human Rights
Committee who argued that States may not use traditional,
historical, cultural or social norms to justify violations of
women’s rights31.
The prohibition of violence against women obviously includes
rape and sexual violence, in certain occasions these can amount
to torture. For example, the European Court of Human Rights,
when adjudicating on the case of Agdin vs. the State of Turkey
(1997), determined that the rape of the complainant while in
the custody of a policeman constituted a form of torture under
Article 3 of the European Convention on Human Rights32.
In addition, the Rome Statute of the International Criminal
Court has included rape and other sexual violence of civilians
as constituting crimes against humanity when committed in
the context of a large scale/systematic attacks. Depending on
the context, these violations can also amount to war crimes and
acts of genocide. Both the International Criminal Tribunal for
the Former Yugoslavia and International Criminal Tribunal for
Rwanda adopted this approach in relation to rape and sexual
violence.
Rights guaranteed in the Convention on the Elimination 45
of All Forms of Discrimination against Women.
The International Criminal Tribunal for Rwanda, in the Akayesu
Case (1998), found the defendant criminally responsible for
acts of rape and sexual violence33 . The Court defined rape as “a
physical invasion of a sexual nature, committed on a person
under circumstances which are coercive”, and defined sexual
violence as “not limited to physical invasion of the human
body” but it “may include acts which do not involve [...] even
physical contact”34 . The International Criminal Tribunal for
the Former Yugoslavia has confirmed that whether or not an
action amounts to rape or sexual assault does not depend on
the degree of physical force used on the offending party, or on
the level of resistance given by the victim but it is a “compelling
circumstance, which denies any possibility of consent”35 .
33 Prosecutor v. Akayesu, ICTR-
96-4-T, Judgment of 2/09/1998.
34 Ibidem, para.688, in the
same case see for example “the
incident described by Witness KK
in which the Accused ordered the
Interahamwe to undress a student
and force her to do gymnastics
naked in the public courtyard [. . .] in
front of a crowd, constitutes sexual
violence”.
35 Prosecutor v. Kunarac and
others, IT-96-32 and IT-96-23/H-A,
Judgments of the appeals chamber,
12/6/2002, para. 32.
 CEDAW identifies mechanisms to ensure
the compliance of the State Parties to the
Convention and its provisions. The creation of
the Committee on Elimination of Discrimination
Against Women (the Committee) is an example
of such mechanisms.
CEDAW determines a number of key functions
to be performed by the Committee which
were expanded through the adoption of the
Optional Protocol to CEDAW in 1999 (OP). The
OP allows, for examples, individual complaints
to be submitted to the Committee, as well

3 Guarantees
as permitting the Committee to conduct
of Control investigations in the practices of the State
and Supervision of the Parties to the Protocol.
Implementation of the
Convention
48 Guarantees of Control and Supervision
of the Implementation of the Convention
The primary function of the
Committee is to control and
supervise the implementation
of the Convention through
the consideration of reports
submitted by State Parties,
and in the case that State
Parties to the Optional
Protocol to receive individual
communications, and conduct
investigations into their
practices.
Committee on the Elimination of
Discrimination Against Women
Article 17 of CEDAW created an oversight committee to monitor
the implementation of the Convention. The Committee consists
of 23 experts, who are elected by secret ballot by the State
Parties to the Convention, from a list of persons of high moral
standing and competence in the field covered by the Convention.
The Committee may not include more than one person from
each State Party and have to meet the criteria of an equitable
geographical distribution. This ensures that the Committee
members represent a diverse cultural and legal spectrum.
Members of the Committee work in their personal capacity, not
as representatives of the State Parties they are nationals of. The
membership term lasts four years, and members can be re-
elected once their term has elapsed.
In contrast to the other human rights treaty bodies, the members
of the Committee are mostly women. Members represent a broad
spectrum of experts, including judges, academics, lawyers,
and experts in psychology and sociology. In accordance with
the procedural rules of the Committee, the Chairperson and
Vice-Chairperson shall be elected by its members. The role
of the Chairperson has evolved to increasingly represent the
Committee at various international activities and events.
The primary function of the Committee is to control and
supervise the implementation of the Convention through the
consideration of reports submitted by State Parties, and in the
case that State Parties to the Optional Protocol receive individual
communications, and conduct investigations into their practices.
Article 21 of CEDAW authorises the Committee to make
suggestions and General Recommendations based on concerns
and considerations which arise from the examination of
reports and information received from the States. General
Recommendations are issued to State Parties and include the
Committee’s views on the content and scope of the obligations of
States Parties under the Convention.
Guarantees of Control and Supervision 49
of the Implementation of the Convention
According to Article 20(1) of CEDAW, the Committee is to
meet for a period not exceeding two weeks annually, in order
to consider the reports from State Parties. The UN General
Assembly has extended this period through the use of several
successive resolutions. Thus, the Committee now meets for two
sessions a year, lasting three weeks each.
In 1991, the Committee on the Elimination of Discrimination
Against Women formed a pre-session Working Group. This
group is composed of four or five Committee members who
meet before the session of the Committee to prepare the agenda
and the questions that will be raised by the Committee to the
States during the session. The agenda and the list of questions
are sent, in writing, to the relevant States. In December 2001,
the Committee approved some modified rules of procedure
regarding the new functions assigned to the Committee under
the Optional Protocol to the Convention. The new rules contain
regulations for the establishment of working groups and
rapporteurs to assist the Committee to carry out its additional
functions and tasks, including responding to the requests for
urgent measures and examine the admissibility of individual
communications.
Reports of States Parties
Article 18 of CEDAW obliges State Parties to submit an initial
report within one year from the Convention entering into force
in their jurisdiction. Subsequently, they shall provide periodic
reports every four years, and/or whenever the Committee
requests them to do so. According to Article 18, the reports
of the States Parties shall include “the legislative, judicial,
administrative, and any other measures, which they have
adopted to give effect to the provisions of the […] Convention”,
as well as indicate any other progress they have made, with
particular reference to the list of issues that the Committee
compiled in response to the previous periodical report. The
reporting procedure is the only mandatory method available to
the human rights treaty bodies of the United Nations to monitor
50 Guarantees of Control and Supervision
of the Implementation of the Convention
The importance of reporting:
1. Reporting contributes to
increase compliance by
States Parties to CEDAW;
2. It helps build a
constructive dialogue
between State Parties
and the Committee on
the application of the
Convention.
3. The preparation of the
reports provides the State
with an opportunity to
engage with the exact
nature, content and
scope of its international
obligations under the
CEDAW, and to undertake
a thorough evaluation of
the condition of the rights
of women at the domestic
level.
4. It contributes to provide
states with practical and
direct advice on how to
strengthen measures,
policies, programmes
and legislation, and to
optimally implement the
Convention
the implementation of the core human rights conventions.
Compelling States to report intends to achieve a number of
objectives, including:
1. Reporting contributes to increased compliance by States
Parties to CEDAW, and to improve States practice in relation
to the Convention at the national level.
2. The process of examining the reports by the Committee
provides an opportunity to build a constructive dialogue
between State Parties and the Committee on the application
of the Convention.
3. The preparation of the reports provides the State with an
opportunity to engage with the exact nature, content and
scope of its international obligations under CEDAW, and to
undertake a thorough evaluation of the condition of the rights
of women at the domestic level. Reporting is also an opportune
moment for State Parties to undertake a comprehensive review
of the various measures they have undertaken to put the
provisions of the Convention into practice.
4. The concluding observations adopted by the Committee, after
examining the report, will contain a number of guidelines
for State Parties on how to strengthen measures, policies,
programmes and legislation, and to optimally implement the
Convention.
Models and Content of Initial and Periodic
Reports
The Committee has adopted guidelines for the preparation of
initial and periodic reports by State Parties. The most important
principles contained in these guidelines are: to consider the
previous recommendations of the Committee, to include detailed
and comprehensive information on any reservation issued by the
State Party concerned, and to indicate any obstacle or objection
which may/does affect the full application of one or more
provisions of the Convention.
With regard to the form and content of reports there is a
differentiation between the initial and periodic reports. Initial
Guarantees of Control and Supervision 51
of the Implementation of the Convention
reports are intended to be a detailed and comprehensive State Parties must differentiate
description of the situation of women in the reporting country between initial reports and
periodic reports. Initial reports
at the time of submission. These reports should address the
should introduce relevant
constitutional, legislative and administrative status of the legislation, policies and
Convention in the domestic system. Reports also usually indicate practices, while periodic are
intended to provide updates on
the legislative measures taken by the State Party in ensuring
actions and measures taken by
the effective enjoyment of the rights guaranteed to individuals
the State Parties to enforce the
subject to the its jurisdiction. Convention.
The primary purpose of the periodic report is to provide a
presentation of the actions and measures taken by the State
Parties to enforce the Convention in the period between the
initial report, or the previous periodic report, and the current
one. State Parties are required to address: concerns raised by
the Committee in its concluding observations of the previous
report, the progress made in enforcing the provisions of the
Convention, and persisting obstacles to the full implementation
of the Convention. If the State Party is a signatory of the Optional
Protocol to CEDAW, the State shall report on the measures taken
to comply with the Committee’s views and recommendations
on any relevant individual communication or any inquiry
procedure undertaken by the Committee.
Examination of Reports
In every session, the Committee establishes the State Parties
who will have their reports considered during the following
three sessions. The State Parties concerned are required to
declare their acceptance of the deadline. Reports are generally
considered in the presence of the State Party, however should
it miss the allocated discussion period twice in a row, the
Committee may consider the report in the absence of the State
concerned. This option however has never been used yet.
Should additional information be required after the submission
of a report, the Committee can request this three months prior
to consideration of the reports. The Committee shall consider
the report at a public meeting attended by the delegation of the
52 Guarantees of Control and Supervision
of the Implementation of the Convention
State Party or its representatives. In this occasion, the Committee
seeks to engage in a constructive dialogue with the State Party to
improve the implementation of the Convention.
In occasion of the discussion of the initial report, a delegation
or a representative of the State Party has 45 minutes to present
the report to the Committee. Subsequently the members of the
Committee present their general observations and comments on
the report, and then discuss it item by item. Subsequently the
members of the Committee present their general observations
and comments on the report. The State Party may provide
verbal responses to questions raised, although it is customary to
postpone this part of the meeting for a week in order to allow
the delegation time to prepare the answers.
With respect to the periodic reports, a pre-session working
group reviews and develops a list of questions and issues that
should be presented to the State Party concerned for further
information and clarification. After this the Committee will allow
a five months period before the deadline for the discussion. In
consideration of the report, the delegation of the State Party shall
produce and carry out a 30 minute presentation. The members
of the Committee will ask questions concerning the status of the
implementation of the Convention to which the delegation should
answer. The Committee then composes its concluding observations
on the report in a private meeting. The concluding observations
are considered to be the collective views of the Committee; these
are both communicated to the State and published.
The final recommendations are significant, considering that
they constitute a set of directives and guidelines that the State
Party concerned should adhere to when working towards the
implementation of the Convention at the national level. As
mentioned above, these observations should be taken into
account when preparing the following periodic reports.
Guarantees of Control and Supervision 53
of the Implementation of the Convention
Special Reports
Article 18(1)(b) of CEDAW requires State Parties to the Convention The Committee on the
to submit reports to the Committee, whenever requested to do Elimination of All Forms
of Discrimination Against
so. In 1999, the Committee determined that the primary purpose
Women adopts General
of requesting such reports is enabling the Committee to obtain Recommendations on
information on possible grave violations of women’s rights36. some of the articles set
forth in CEDAW, or on topics
Specifically this reporting procedure is conditional on the relevant to the Convention
and its mandate. They are
existence of reliable evidence of systematic and gross violations considered to be instructions
of human rights of women, and such violations must be on to assist State Parties in
the basis of sex. Once the report has been submitted, the understanding the nature
Committee sets a date to discuss it. The meeting is conducted and scope of obligations
arising from the Convention
with the specific mandate of addressing the information that
with the ultimate goal of
has been requested by the Committee. Post-meeting discussions facilitating implementation.
occur between the Committee and the representative of the
State concerned. The Committee provides brief concluding
observations on the report.
General Recommendations
The Committee on the Elimination of All Forms
of Discrimination Against Women adopts General
Recommendations on some of the articles set forth in CEDAW,
or on topics relevant to the Convention and its mandate. They
are considered to be instructions to assist State Parties in
understanding the nature and scope of obligations arising
from the Convention with the ultimate goal of facilitating
implementation.
As of 2008, the Committee has produced 26 General
Recommendations on relevant topics, such as violence against
women, women migrant workers, the preferential interim
measures mechanisms and the political participation of women.
36 Committee on the Elimination of
In 1997, the Committee has identified three stages for the All Forms of Discrimination Against
Women, twenty first session,
formulation and adoption of general recommendations. This decision 21/I 1999, Exceptional
includes undertaking dialogue between the Committee, reports, page 2.
54 Guarantees of Control and Supervision
of the Implementation of the Convention
Optional Protocols are
contractual instruments
related to existing
Conventions. Their main
purpose is to address gaps
in the Convention, to modify
one or more of its provisions
or to tackle issues that have
emerged since the original
drafting of the document.
The option of signing,
ratifying or acceding to the
Protocol is at the discretion
of each State Party to the
relevant Convention.
37 As of June 2009, 97 countries
acceded to the Optional Protocol.
Guarantees of Control and Supervision 55
of the Implementation of the Convention
NGOs and other bodies concerned with the subject of the Content of the Protocol
general recommendation. The Committee normally urges the
relevant international agencies to be part of the debate as well. Article 1 of the Optional Protocol recognises the competence The Optional Protocol is
Subsequently, the members of the Committee develop a draft of the Committee to receive and deal with individual characterised, in terms of
of the general recommendation; this will be subject to extensive content and provisions by
communications. Articles 3 and 4 deal with the conditions
distinctive features, including:
discussion at the subsequent drafting session. The Committee of admissibility of the communication. Article 5 allows the
1. Reservations to any of its
may also invite experts to participate to this session. Finally, Committee to contact the State Party with an urgent request
provisions are not allowed
the Committee shall adopt the completed text of the general to take steps to protect the alleged victim or victims from (Art. 17);
recommendation. irreparable harm. Articles 6 and 7 address the mechanisms 2. State Parties are required
for consideration of the individual communication by the to take all appropriate
Committee. Article 7(5) authorises the Committee to follow-up measures to ensure that
no harm occurs to these
The Optional Protocol with the State Party concerning its compliance with the views
submitting a complaint
or recommendations made by the Committee. under the OP (Art. 11);
3. The Committee has the
Optional Protocols are contractual instruments related to The inquiry procedure is detailed under Article 8, 9 and 10 of explicit power to follow up
existing Conventions. Their main purpose is to address gaps in the Protocol. Article 10 provides an opt-out clause: at the moment with Sate Parties;
the relevant Convention, to modify one or more of its provisions of ratification, State Parties may choose not to recognise the 4. The complaint mechanism
or to tackle issues that have emerged since the original drafting competence of the Committee to initiate and conduct an inquiry provides a means of remedy
of the document. The option of signing, ratifying or acceding of this kind. for victims of violations of
rights guaranteed under
to the Protocol is at the discretion of each State Party to the
CEDAW;
relevant Convention. The protocol is characterised, in terms of content and provisions,
5. The inquiry procedure
by distinctive features which include: allows the Committee
The fundamental feature of the OP to CEDAW is that it to make specific
introduces instruments to strengthen the implementation 1. State Parties who desire to sign, ratify or accede to the Protocol recommendations that
mechanisms available to the Committee, namely an individual are not permitted to make any reservation to any of its contribute to removing
the core causes of
communication (or complaint) mechanism and an inquiry provisions, as set out in Article 17. discrimination.
procedure.
2. States Parties are required, under Article 11, to take all
The General Assembly of the United Nations adopted the appropriate measures to ensure that no harm occurs to those
Optional Protocol on 9 October 1999, and it entered into force on subject to its jurisdiction, for submitting a complaint under
22 December 2000. As of May 2009 the only two Arab States Party the Protocol.
to the Protocol, are Tunisia and Libya37.
3. The Committee has the explicit power to follow up the
The Preamble to the Protocol identifies its primary purpose opinions and recommendations expressed under the Protocol
as “ensure[ing] the full and equal enjoyment by women of all with the State Party concerned.
human rights and fundamental freedoms and to take effective
action to prevent violations of these rights and freedoms”. 4. The complaint mechanism provides a means of remedy for
victims of violations of rights guaranteed under CEDAW.
Moreover, it allows the Committee to determine the
56 Guarantees of Control and Supervision
of the Implementation of the Convention
obligations of State Parties to the Convention on the basis
of the information presented in the individual complaint.
5. This protocol, thanks to the inquiry procedure, allows the
Committee to make specific recommendations that contribute
to removing the core causes that lead to discrimination
against women
Individual Communications
The individual communication process detailed under the OP
to CEDAW establishes in Article 2 that “communications may
be submitted by or on the behalf of individuals or groups of
individuals subject to the jurisdiction of a State Party claiming
to be victims of a violation of the rights set forth in the
Convention by the State Party”.
Conditions of Admissibility of Individual
Communications
Article 6 of the OP establishes that in order to ensure that the
Committee can take action on individual communications,
the complaint should comply with a set of requirements that
determine its admissibility. If the case does not meet these
requirements then the Committee does not have the mandate
to proceed. Admissibility criteria are dealt with before analysing
the merit of the complaints:
1. Jurisdiction of the Committee: the individual complaints
should be submitted against a State Party to the Optional
Protocol. As the individual complaint is a feature of this
mechanism, the complaint should be submitted by an
individual or group of people whose rights have been violated
by a State Party to the Protocol and/or by a person/group of
people who were subject to the jurisdiction of the State Party
at the time of the violation. Article 2 of the Protocol, permits
Guarantees of Control and Supervision 57
of the Implementation of the Convention
the submission of a complaint on behalf of an individual or
group of individuals, subject to their consent. This is a very
important measure as it provides protection for woman in the
event of reprisals, including revenge actions and allows them
to overcome the obstacle of illiteracy, which may impede the
victim from submitting an individual communication.
2. Temporal jurisdiction: in principle, the Committee does not
have the jurisdiction to consider any communication that
deals with a breach of a right guaranteed by the Convention
which occurred prior to the Optional Protocol entering into
force38. An exception is made for ongoing violations. Violations
which occurred before the State Party acceded to the OP, but
whose effect continues after the OP enters into force can be
considered by the Committee.
3. Territorial jurisdiction: the Committee shall consider
individual communications concerning violations of the
Convention that took place within the jurisdiction of the
State Party concerned. The notion of jurisdiction should be
interpreted extensively, in line with other treaty bodies such
as the Committee on Human Rights39 , and the Committee
against Torture40. This approach means that the victim can
be someone who is residing in the territory of the State, or is
a citizen of the State Party although he/she resides outside its
territory, or it is someone within the territory of the state but
not a citizen (e.g. resident). 38 Optional Protocol to CEDAW,
Article 4(2)(e).
4. Subject-matter jurisdiction: the subject of individual
39 M. Yousuf, M. K. Al-Moussa,
communication must be a violation of a right protected International Law of Human
under CEDAW. Such violation may be carried out by public Rights, Part I: Sources and Means
of Protection, Amman : House
authorities itself; or by individuals where the authorities of Culture for Publishing and
fail to take appropriate measures to ensure the respect for Distribution, 2005, p. 265 ff.
the rights protected under the Convention. This is very clear
40 M. K. Al-Moussa, Guide for the
in Article 2(e) of the Convention, which considers that State Application of the United Nations
Parties are required to: “take all appropriate measures to Convention against Torture and
eliminate discrimination against women by any person, Other Cruel, Inhuman or Degrading
Treatment or Punishments, Amman:
organization or enterprise”. States Parties are responsible Adalah Center for Human Rights
for the protection of the rights set out in the convention Studies, 2008, p. 29 et seq.
58 Guarantees of Control and Supervision
of the Implementation of the Convention
vertically, in the public sphere, and horizontally, in the
private sphere.
In terms of subject-matter admissibility, it is essential to note
that the rights protected under the Convention are considered
in terms of the contents and scope of CEDAW, interpreted by
the Committee. For example, the Committee has interpreted
Article 1 of the Convention to include violence against
women, although there is not specific reference to violence
within the Convention. If the subject of the individual
communication is violence against women, the complaints
cannot be rejected on the ground of not meeting the subject
matter admissibility criteria because the Committee considers
violence against women to be a violation of the Convention
5. The exhaustion of all available domestic remedies: Article
4(1) of the OP establishes that all domestic remedies must
be exhausted before the complaint can be considered by
the Committee, as the State should be the primary body to
protect human rights. National remedies include the national
judiciary and administration system. Article 4 indicates
that this requirement is satisfied if the national “remedies is
unreasonably prolonged or unlikely to bring effective relief”.
6. The subject of the communication should not be under
consideration by any similar international bodies or by
the Committee itself: Article 4(2)(a) of the Protocol indicates
that the complaint is not admissible if the Committee, or any
other “procedure of international investigation or settlement”
is considering or has previously considered the complaint.
This applies to any similar international procedures,
including regional and international bodies concerned with
the implementation of human rights conventions that have
individual complaint procedures. However this criterion
does not apply to other international instruments that deal
with the general situation in a country or with a particular
issue, for example mechanisms established under ECOSOC
resolution 1503.
Guarantees of Control and Supervision 59
of the Implementation of the Convention
The subject of communication may cross the jurisdiction of
the Committee on Human Rights, the Committee Against
Torture, the Committee on the Elimination of Discrimination
Against Women and the European Court of Human Rights, for
example, however the victim has to choose one of those bodies
to submit the communication to.
7. Not to abuse the mechanisms for submitting complaints: for
this reason, the protocol stipulated that the communication
should be in writing, not be anonymous, have merit or be
supported by sufficient evidence and consistent with the
provisions of the Convention.
Consideration of Individual Communications
Once the Committee has established that the communication
is admissible, it will confidentially bring it to the attention of
the State Party to try to and facilitate a national redress. The
State Party shall settle the matter or provide clarification in
writing to the Committee within six months after receiving the
communication from the Committee. In the case of a settlement,
the State Party must include the measure taken to solve the issue
in its communication to the Committee41.
If the State fails or refuses to find an acceptable solution to
the issue, the Committee, in the light of data and information
available, considers the communication. The examination
process is confidential. Following the completion of the
examination report, the Committee issues views, conclusions
and recommendations to the parties concerned. The State
Party must examine the views and recommendations of the
Committee, and provide it with written explanation of any
action taken in the light of these recommendations. The
Committee shall include a summary of the communications in 41 The Optional Protocol to
its annual report. CEDAW, article 6.
60 Guarantees of Control and Supervision
of the Implementation of the Convention
The Protocol has recognised in Article 7(e), the authority of the
Committee to follow up with State Parties who have been subject
to the complaints mechanism. This is usually done by requesting
that the State Party provides information about this matter in
their subsequent periodical reports.
Examples of issues that can potentially be subject to an
individual complaint are: the loss of nationality due to marriage
to a non-national; the case of impeded access to courts due to
patriarchal systems which tie the rights of women to their
husbands; arbitrary termination of employment or being denied
employment due to pregnancy or the potential of being/getting
pregnant.
Inquiry Procedure
The inquiry procedure outlined in Articles 8, 9 and 10 of the
Optional Protocol to CEDAW is similar to that contained in
Article 20 of the Convention Against Torture and other Cruel,
Inhuman or Degrading Treatment. As mentioned above, states
might decide to opt out of this mechanism through a declaration
at the time of signature, ratification or accession. The State may
withdraw its declaration at any time by notifying the Secretary-
General of the United Nations.
This procedure requires, in Article 8, that “If the Committee
receives reliable information indicating grave or systematic
violations by a State Party of rights set forth in the Convention,
the Committee shall invite that State Party to cooperate in
the examination of the information and to this end to submit
observations with regard to the information concerned”.
The source of this information may be non-governmental
organisations (NGOs), associations concerned with women’s
rights or any individual. Upon receiving such information,
the Committee invites the State Party concerned to provide
comments, state a position and provide explanations regarding
Guarantees of Control and Supervision 61
of the Implementation of the Convention
the issue within a certain time frame. The committee is tasked
with examining additional information, including from INGO’s,
NGO’s, and UN agencies. The Committee may appoint one or
more of its members to conduct an investigation, and to report
back in a timely manner. The investigation may include a visit to
the State Party concerned upon obtaining its consent.
After examining the findings, the Committee transmits this
information to the State Party concerned, along with any
comments or recommendations on the subject. The State
Party concerned will be given a period of six months to
make observations or to resolve the issues pertaining to the
investigation. Article 9 of the Protocol grants the Committee
the power to request that the State Party concerned include
information on the measures taken to respond to the
investigation findings in its periodical reports, in accordance
with Article 18 of the Convention.
Some cases that require the use of the inquiry procedure may
be: the case of a State Party to the Convention that imposes
extensive restrictions on the political participation of women,
cases in which the State Party assists through act or omission
the phenomenon of trafficking in women, or the occurrence
of widespread rape during armed conflict or the exposure of
women to widespread violence.

4 The Convention on the
Elimination of All Forms of
Discrimination Against Women
in the Jordanian Legal System
42 It should be noted that Jordan
signed the Convention on 3/12/1980.
Between the signature and the
ratification 12 years passed by.
43 Jordan submitted its preliminary
report to the Executive Committee
on 27/10/1997. The second was
submitted on 19/11/1999 and the
third and fourth were merged
together in a single report and
presented on 10/3/2006. The fifth
report should have been submitted
on 31/7/2009.
Jordan ratified CEDAW in July 199242. The
Convention was published in the Official
Gazette on 1 August 2007, Volume No. 4839, a
considerable time after ratification, becoming
part of the legal system of Jordan. As of 2009,
Jordan has provided the Committee on the
Elimination of Discrimination Against Women
with three reports; the last one was submitted
on 10 March 200643.
There are a number of topics and key
issues to be addressed when examining the
development of the Convention in Jordan, such
as Jordan’s reservations to the Convention,
Jordan’s accession to the Optional Protocol
and, most importantly, the status of the
Convention and its legal value in the Jordanian
legal system, as well as the harmonisation of
national legislation with Jordan’s obligations
under CEDAW.
64 The Convention on the Elimination of All Forms of Discrimination The Convention on the Elimination of All Forms of Discrimination 65
Against Women in the Jordanian Legal System Against Women in the Jordanian Legal System

Jordan has made reservations to

some CEDAW provisions. They
relate to Article 9 paragraph
2, Article 15 paragraph 4 and
Article 16 paragraphs 1(c)(d)(g).
Jordan withdrew its reservation
on Article 15 paragraph 4 in
2009.
Jordan’s Reservations to the Convention
Jordan has made reservations to some CEDAW provisions.
They relate to Article 9 paragraph 2, Article 15 paragraph 4
and Article 16 paragraphs 1(c)(d)(g). Jordan withdrew its
reservation on Article 15 paragraph 4 in 2009, which means
that it now adheres to the idea of equality between women
and men in regards to the freedom of movement and choice of
residence, which was previously seen to be incompatible with
Jordanian law. For instance, previous to the withdrawal of this
reservation, a women’s residency depended upon that of her
husband, in accordance with Islamic Law.
Jordan has maintained its reservation to the other two Articles.
Article 9(2) recognises women’s equal rights with men in respect
to the nationality of their children. Article 16(1) paragraphs
(c)(d) and (g) establishes that “States Parties shall take all
appropriate measures to eliminate discrimination against
women in all matters relating to marriage and family relations
and in particular shall ensure, on a basis of equality of men and
The Committee on the Elimination of Discrimination Against
Women has stated on several occasions, that the reservations
of Arab and Islamic countries, including Jordan, are in contrast
with the purpose of the Convention. They also emphasised
their concern, with particular regard to Articles 2 and 16 of the
Convention, which affect the raison d’être of the Convention
itself 45 . Since 1998, the Committee has undertaken a constructive 45 Report of the Committee on
dialogue with these countries to encourage them to withdraw the Elimination of Discrimination
against Women (Eighteenth and
these reservations. In the case of Jordan, this constructive
nineteenth sessions), 1998, A/53/38/
dialogue led, in 2009, to the withdrawal of the reservation to Rev.1, para 9.
article 15(4) 46.
46 It should be noted that both
Morocco and Bangladesh were
These reservations, despite the fact that they unlawfully contrive among the Islamic countries that
the ethos of the Convention, have not precluded Jordan from have withdrawn reservations
they previously made to some of
being a party to the Convention. Neither the Committee, nor the the provisions of the Convention.
other State Parties, refused the validity of the application of the Among Non-Islamic or Arabic
treaty in Jordan due to these reservations. The reservations made countries that have already done
the same are: Brazil, Bulgaria,
by Jordan do not signal a rejection of the treaty, although they Canada, France, Hungary, Ireland,
do make its compliance to CEDAW in its entirety, impossible. Jamaica, Malawi, Poland and
Despite these reservations, Jordan has embraced its commitment Romania.

44 M. K. Al-Moussa, the Impact
of Reservations Made by States,
"The Journal of Law", University of
Bahrain , 2006.
women: (c) The same rights and responsibilities during marriage
and at its dissolution; (d) The same rights and responsibilities as
parents, irrespective of their marital status, in matters relating
to their children; in all cases the interests of the children shall
be paramount; (g) The same personal rights as husband and
wife, including the right to choose a family name, a profession
and an occupation”.
Jordan has justified these reservations on the basis that they
contravene Jordanian law and Islamic law in the field of family
rights.
It can be argued that the Jordanian reservations are illegal and
void 44 because are incompatible with the provision in Article
28(2) of CEDAW, that does not authorise State Parties to make
reservations which violates the objects and purposes of the
Convention.
to the Convention, which is evident from its continued efforts to 47 Article 16 is an essential article of
give effect to the obligations arising from it in its national legal the Convention. Article 9 including
the provision of paragraph 2, which
system, including publishing the treaty in the Official Gazette, as
obligates States parties to the
well as withdrawing the reservation to article 15(4) 47. Convention to equality between
women and men in regards to the
nationality of their children, can
It can be suggested that Jordan’s reservations to particular
be considered an extension of the
articles contained in CEDAW were not intended to undermine provisions contained in Article 16.
the spirit of the Convention itself; rather they reflect a temporary In fact, the latter includes an ad
hoc provision for equal rights in
solution to respond to fundamental ideological, social, and marriage and the link between the
cultural factors at play in Jordan. As these obstacles are gradually two articles becomes evident when
eroding, Jordan is beginning to withdraw or modify these considering that granting equal
rights in marriage implies granting
reservations accordingly. mothers to pass their nationality
to their children. This is confirmed
It is essential to note that there is a legal differentiation between also by the Committee on Human
Rights, in its General Comment No.
the consent to be bound by the Convention and the existence 28, para 25. See also article 30 of the
of the reservations48. The reservation does not assume a lack Covenant (equality between men
of willingness to comply with the principles of CEDAW. This and women).

is evidenced through the fact that Jordan has withdrawn 48 M. K. Al-Moussa, supra note
its reservation to Article 15(4), as previously mentioned. The 44, p. 390.
66 The Convention on the Elimination of All Forms of Discrimination
Against Women in the Jordanian Legal System
Article 33 of the Constitution
gives the authority to
conclude international treaties
exclusively to the King.
Paragraph 2 of the same article
requires the consent of the
National Assembly in order to
bring into force “treaties and
agreements which involve
financial commitments to the
Treasury or effect the public or
private rights of Jordanians”.
Treaties which do not fall into
these two categories come
into effect as soon as they
are published in the Official
Gazette.
49 SHRI D.K. BASU v State of West
Bengal, 18/12/1996, para. 43.
50 Official Gazette, page 369, 1224,
16/4/1995.
legal and social challenges which have been an obstacle to the
realisation of the equality between women and men in the
freedom of movement and choice of residence have changed,
allowing the Jordanian state to remove the relevant reservation.
Generally speaking, it should be noted, that there have been
instances where the judiciary of a State Party to CEDAW has
actually ruled that reservations to the Convention were invalid
and that the State Party cannot reduce and separate its legal
obligations under CEDAW through the use of reservations49 ,
demonstrating that domestic courts may actually decide to act
in this direction.
Incorporation of CEDAW into the Jordanian
Legal System
The mechanisms to integrate international treaties and
conventions into the Jordanian Legal System are not specifically
defined by the Jordanian Constitution. Article 33 of the
Constitution gives the authority to conclude international
treaties exclusively to the King. Paragraph 2 of the same article
requires the consent of the National Assembly in order to bring
into force “treaties and agreements which involve financial
commitments to the Treasury or effect the public or private
rights of Jordanians”. Treaties which do not fall into these two
categories come into effect as soon as they are published in the
Official Gazette. The fact that the Constitution explicitly requires
that these two kind of treaties must be approved by the National
Assembly, also entails that agreements that differ from these
explicitly named do not need to follow the same iter to enter into
force.
The Higher Council for the Interpretation of the Constitution has
addressed this issue in the Interpretative Resolution No. 2, 199550.
Prior to the amendment of Article 33(2) in 1958, several kinds of
international agreements required the approval of the Jordanian
National Assembly in order to be valid, while the amendment
The Convention on the Elimination of All Forms of Discrimination 67
Against Women in the Jordanian Legal System
made to Article 33(2) retained only the two aforementioned The ratification procedure
types. The Higher Council highlighted, considering the amended adopted by the Executive
article, that treaties shall take effect without the need for Branch in Jordan to publish
CEDAW in the Official Gazette
consent of the Parliament unless resulting in changes in the bypassing Parliamentary
territory of the state or its sovereignty, affect the public or approval, is in fact consistent
private rights of Jordanians, or cause the treasury to incur some with Article 33 of the
expenditure. If not resulting in such effects, the agreements Jordanian Constitution, and
brings the Convention into full
enter into force as soon as they are concluded by the Executive
legal effect in the Jordanian
Branch. judicial system.
It is quite clear that the Higher Council for Interpretation of
the Constitution when considering Article 33(2) interprets
the word masas to mean prejudice or to have a negative effect
upon the public and private rights of Jordanians, rather than
simply causing a change to these rights51. CEDAW, like other
human rights conventions, does not involve a threat or negative
change in the rights of Jordanians, by virtue of its object and
purpose. Therefore the Convention is exempt from requiring
the authorisation of the Parliament to enter into force on these
grounds.
The ratification procedure adopted by the Executive Branch
in Jordan to publish CEDAW in the Official Gazette bypassing
Parliamentary approval, is in fact consistent with Article 33 of
the Jordanian Constitution, and brings the Convention into full
legal effect in the Jordanian judicial system.
Notwithstanding, the fact that the Jordanian Constitution
did not stipulate a clear position regarding the relation
between international law and domestic law, the general
principle, consistent with the opinion of the Higher Council for
Interpretation of the Constitution, conveys that international
treaties consistent with Article 33 have direct effect in the
Jordanian system.
In addition to the automatic integration of the Convention,
Jordanian legislators could resort to an incorporation act which
consists of converting the rules and provisions contained in
CEDAW through the enactment of new or amending existing 51 Ibidem.
68 The Convention on the Elimination of All Forms of Discrimination
Against Women in the Jordanian Legal System
52 The Journal of the Bar
Association, volume no. 1, 1996,
page 5.
53 The Journal of the Bar
Association, volume n. 6, decision
29/1986 issued on 01/01/1986, p.
1637.
legislation in line with the provisions of the Convention. For
example the enactment of legislation for the protection against
domestic violence, including the principle of equality between
women and men in the Labour Code, or the enactment of
legislation to guarantee women equal rights with men in
education and health.
Status of the Convention in the Jordanian
Legal System
The Jordanian Constitution does not define the status or the
value of international treaties and conventions once published in
the Official Gazette. The Jordanian Court of Cassation however,
has considered this matter extensively. The jurisprudence of the
Court demonstrates that, in cases were international treaty law
and domestic law are in contradiction, international law prevails
over domestic law. On 13 November 1993, in case No. 936/1993
the Court of Cassation stated “the international conventions
concluded by the State are superior to the national laws in force
and they should be applied even if they are in contradiction with
the provisions of these laws”. Accordingly, the Court of Appeal
considered that to disregard the application of the Riyadh Arab
Convention on Judicial Cooperation and adopt a decision in
accordance with the Law Enforcement of Foreign Judgments is
in violation of the principle of the supremacy of international
treaty law52.
The position of the Court of Cassation on the superior nature
of international treaty law has been consistent. The Court has
emphasised on many occasions that “international agreements
are the same as local legislation when they become effective in
the Kingdom. Judges should apply these provisions like any other
legislation in force in relation to the relevant dispute […]”53 . It
is quite clear that the Court of Cassation of Jordan stresses two
important issues: firstly the superiority of the international
treaties published in the Official Gazette over domestic law, and
secondly the duty of the judiciary to deal with the provisions
The Convention on the Elimination of All Forms of Discrimination 69
Against Women in the Jordanian Legal System
of these treaties as they would do with any other domestic The Court of Cassation of
legislation. Jordan stresses two important
issues: firstly the superiority
of the international treaties
On a practical level, this means that judges in Jordan should published in the Official
work in accordance with the provisions of CEDAW. When there Gazette over domestic law,
is conflict between the Convention and domestic legislation, the and secondly the duty of the
provisions of the Convention should be applied. judiciary to deal with the
provisions of these treaties
as they would do with any
However, it is important to note that the principle of the other domestic legislation. On
superiority of CEDAW is based on the provisions of the Court of a practical level, this means
Cassation and not the Constitution itself. This means, in practice, that judges in Jordan should
that this approach might be subject to change, as it would be work in accordance with the
provisions of CEDAW. When
sufficient for the Court of Cassation to revise its position in this
there is conflict between the
regard. In addition, the Jordanian legal system does not operate Convention and domestic
on the principle of judicial precedents; the lower Jordanian legislation, the provisions
courts, theoretically, are not bound to follow the position of the of the Convention should be
applied.
Court of Cassation in this regard.
Another important issue relates to the fact that the provisions
of the Convention may be in conflict with the provisions of
the Jordanian Constitution itself; in this case the Constitution
prevails. Article 6 of the Jordanian Constitution deals with the
principle of equality and prohibition of discrimination, but
it does not refer to sex as a ground for discrimination. This
issue highlights both the necessity to amend the Jordanian
Constitution to ensure the superiority of international
conventions in general, or of human rights treaty law at the very
least, and the need to fully integrate the principle of equality
between men and women in Constitution. Until these changes
occur the status of CEDAW will remain unstable, and in some
cases ineffective. Moreover, such modifications are desirable in
view of Jordan’s obligations under the Convention.
70 The Convention on the Elimination of All Forms of Discrimination The Convention on the Elimination of All Forms of Discrimination 71
Against Women in the Jordanian Legal System Against Women in the Jordanian Legal System

The Importance of Jordan’s Accession

to the Optional Protocol
There is no doubt that acceding to the Optional Protocol
to CEDAW is an important step to ensuring the full respect
of the provisions of the Convention. It is not sufficient, both
theoretically and practically, for State Parties to CEDAW,
including Jordan, to adopt the Convention without recognising
the procedural guarantees to ensure compliance. As shown
in the previous chapter, the individual complaints mechanisms
is an important tool to ensure the effective respect for the
substantive provisions contained in the Convention.

Adherence to the Protocol will stimulate the Public Authorities

in Jordan to put the provisions of the Convention into practice
in order to avoid individual complaints being brought against
Jordan. Moreover, it will urge the authorities to ensure national
remedies to violations. This will significantly contribute to the
removal of all laws and practices that discriminate against
women in Jordan.

Acceding to the Protocol would also contribute towards the

appropriate application and interpretation of the Convention in
Jordan in light of recommendations and views of the Committee;
it also assists in creating general awareness and understanding
of the human rights guaranteed to women, and the necessity to
remove all forms of discrimination based on sex.
 Judges, prosecutors and lawyers, have a major
role in the enforcement of the provisions
of CEDAW in Jordan. Legal practitioners
should apply human rights standards when
dealing with cases relating to discrimination
against women and they should adhere to the
principles and legal provisions enshrined in
CEDAW. Legal practitioners play an imperative
role in detecting women’s rights abuses and
seeking remedy through the prosecution and
punishment of perpetrators. This applies
across the spectrum of discrimination

5 The
including, for example, trafficking of women,
role of judges, prosecutors exploitation, prostitution and pornography.
and lawyers in enforcing
CEDAW
74 The role of judges, prosecutors and lawyers in enforcing CEDAW
Legal practitioners can apply
CEDAW in a number of ways,
including through the direct
application of the provisions
of the Convention, or using
it as an interpretative tool.
Domestic law should be
interpreted so as to be in
conformity with human rights
norms, including CEDAW.
Judges should gradually
locate domestic law in its
international context.
The concept of direct
applicability of international
law allows the judiciary to
settle legal disputes based
on CEDAW and/or legal
practitioners to invoke the
provisions of the Conventions
in their legal arguments
without requiring any prior
legislative action by the
national authorities of the
State Party.
54 M. K. Al-Moussa, The
Application of International
Conventions on Human Rights
in the Jordanian Judiciary, The
Empowerment Center for Legal Aid
and Human Rights, 2009. See also,
H. Keller and A. Stone Sweet, A
Europe of Rights. The impact of the
ECHR on National Legal Systems,
pp.13-14; p.48; p.50 and pp.682-686;
Global Rights, Promoting Women’s
Human Rights. A Resource Guide
for Litigating International Law in
Domestic Courts, 2006, p.18.
In sum, judges, prosecutors and lawyers all have a major role in
protecting, promoting and securing the human rights of women
in general, and in particular those set forth under CEDAW. They
hold special responsibility towards any manifestation of violence
against women, regardless of whether this is conducted by the
public authorities, private citizens, or permitted under socio-
cultural norms. The legal profession has, in addition, a vital
role in activating and ensuring protection for other rights: such
as marriage rights, the right to litigation, equality before law,
equality in education, health care, and other labour rights54 .
A major question should be considered in this regard: how can
the legal profession utilise CEDAW in practice in terms of both
the provisions of the Convention itself within the Jordanian legal
system?
Legal practitioners can apply CEDAW in a number of ways,
including through the direct application of the provisions of
the Convention, or using it as an interpretative tool. Domestic
law should be interpreted so as to be in conformity with human
rights norms, including CEDAW. Judges should gradually locate
domestic law in its international context.
The Direct Applicability of CEDAW
The concept of direct applicability of international law allows the
judiciary to settle legal disputes based on CEDAW and/or legal
practitioners to invoke the provisions of the Conventions in their
legal arguments without requiring any prior legislative action by
the national authorities of the State Party. In the context of the
Jordanian judicial system, this means that judges, lawyers and
prosecutors should seek to use CEDAW as the basis for building
their arguments.
The duty of judges and prosecutors in Jordan to apply the
provisions of CEDAW is line with the concept that national
courts are state organs, and as such, they are required to
The role of judges, prosecutors and lawyers in enforcing CEDAW 75
conform to Jordanian’s international obligations. If the
judiciary fails to do so, Jordan’s international liability might
emerge. Furthermore international law requires states to respect
the provision of CEDAW, and does not permit the prioritising
of national laws as a way to avoid international commitments55 .
Therefore, it entails the possibility of using the provisions
directly in domestic tribunals providing effective remedies
to victims of violations.
The Committee on Economic, Social and Cultural Rights,
in its General Comment No. 9 on the domestic application of the
International Covenant on Economic, Social and Cultural Rights,
has stated that “generally, all international human rights
standards that are legally binding should be applied immediately
in the local legal system of each State Party, thereby enabling
individuals to seek enforcement of their rights before the
national courts and judicial bodies”56.
The concept of direct applicability of international human rights
law is one of the core principles recommended by treaty bodies.
It is important to mention, that State Parties should include
in their reports to the Committee whether the Convention is
directly applicable domestically immediately upon ratification, 55 The Vienna Convention of the
Law of Treaties, supra note 14
whether the provisions are guaranteed by the Constitution and
Article 27.
other national laws, and if CEDAW can be invoked before and
applied by courts and administrative authorities57. 56 General Comment No. 9, para
4, in Basic International Charters
of Human Rights, Comments
Therefore, Jordan, like other States Parties to CEDAW, is and General Recommendations
responsible at the international level to ensure the direct of The Bodies of The Convention
Concerned, Amman: Adalah Center
application of the provisions of the Convention within the
for Human Rights studies, Page 125.
national judicial system. The main question to be considered
57 Committee on the Elimination
in this context is whether the Jordanian legal system itself
of Discrimination against Women,
allows judges and lawyers to apply the Convention in their Compilation of Guidelines on the
legal practice. Form and Content of Reports to
be Submitted by State Parties to
the International Human Rights
To enable legal practitioners to apply the Convention directly, Treaties, 05/05/ 2003, HRI/GEN/2/
the following elements should be available: Rev.1/Add.2.
76 The role of judges, prosecutors and lawyers in enforcing CEDAW
1. Accuracy and clarity of the Convention’s rule relevant to
the right: the more accurate the content of the Convention’s
legal rules are, the wider the possibility of its direct
application becomes. There is no doubt that a significant
number of provisions and rights contained in CEDAW are
accurate and clear in their content, such as: the core principle
of discrimination against women (Article 1); the right to
participate in public and political life (Article 7); the right
to acquire, change or retain nationality and to pass it to
their children or husbands (Article 9); the right to education
(Article 10); the right to work (Article 11); the right to equality
before the law (Article 15), and equal rights in relation to
marriage (Article 16). The core principle of equality between
women and men that underpins these articles should result in
their immediate application within the domestic legal system.
It may not be possible for other articles to be applied
immediately due to conditions set out within the Convention
itself requiring State Parties to take appropriate measures to
bring provisions into force, such as enacting national legislation.
2. The status of CEDAW in the Jordanian legal system:
obviously the direct application of CEDAW is affected by
its status within the Jordanian legal framework, and the
structure which allows international conventions to be
incorporated nationally. CEDAW itself does not include
substantive and procedurals provisions which may assist
integrating the convention with domestic system. This means
that its effectiveness and applicability will be connected to a
wide degree with the structure of the Jordanian legal system
itself. It is at this level that the role of legal practitioners
becomes essential in securing the rights set forth in CEDAW,
as the lack of judicial and procedural guarantees may limit
the protection of these rights.
The status of CEDAW within the Jordanian legal system
has been discussed throughout chapter 5. It has been
concluded that the jurisprudence of the Court of Cassation
is clear in stating the superiority of international treaty law
The role of judges, prosecutors and lawyers in enforcing CEDAW 77
compared to national laws. It is evident that there is nothing
in the Jordanian legal system that prevents the immediate
application of the provisions of CEDAW upon ratification, as
prior legislative measures are not required. The superiority
of international over domestic law, with the exception of the
Constitution, has been consistently argued by the Court of
Cassation. It would be important to amend the Constitution in
order to clearly establish the supremacy of international law;
this would make the status of Conventions in Jordan more
stable and not subject to the rulings of the Court of Cassation.
3. Facts and circumstances of the case: this element is no less
important than the aforementioned ones. The direct impact
of CEDAW’s provisions is connected to the facts of the case,
the circumstances of the dispute and the goal that each side
of the dispute seeks, in addition to the jurisdiction of the
Court to consider the case. Moreover, in order to trigger the
applicability of CEDAW, it is necessary to have an involvement
of the state through its bodies in the facts of the case itself.
Working towards the application of CEDAW within the
Jordanian legal system is a process that differs from one case
to another, and is a process that occurs when considering each
individual case.
The Direct Applicability of the Principle of
Equality
The Human Rights Committee stated in General Comment No.
31, that the enjoyment of the rights recognised in the ICCPR
can effectively be guaranteed by the judiciary in various ways,
including the immediate application of the Covenant or other
similar provisions58. Among the other most important means of
allowing the direct application of human rights conventions in 58 HRC General Comment No. 31,
general and CEDAW in particular, is considering the principle of the Nature of the General Legal
Obligation Imposed on States
equality and non-discrimination as critical to the protection of Parties to the Covenant, 2004,
human rights. Para. 15.
78 The role of judges, prosecutors and lawyers in enforcing CEDAW
59 C. Sciotti, La Concurrence
Des Traités Relatifs Aux Droits de
L’homme Devant Le Juge National,
Bruxelles: Bruylant, 1997, p.46.
60 N. Abiad, Sharia , Muslim States
and International Human Rights
Treaty Obligations: A Comparative
Study, London: British Institute of
International and Comparative law,
2008, p.157.
The role of judges, prosecutors and lawyers in enforcing CEDAW 79
This means that the enjoyment of internationally recognised The Interpretative Use of CEDAW
human rights is conditional upon equality and non-
discrimination. If this principle is not enacted, the full Using human rights conventions to interpret domestic legislation Using human rights
realisation of human rights is not possible, neither theoretically is one of the most important alternative means to the direct conventions to interpret
domestic legislation is
or practically. To allow for the direct application of this principle, application of international human rights law. In fact, even
one of the most important
legal practitioners must base their cases on the principle of when judges and prosecutors in Jordan are unable to directly alternative means to the direct
equality when it is evident that a woman is not being treated apply all the provisions of CEDAW with immediate effect, application of international
equally to a man because she is a woman. The court should make they are required to seek alternative means to uphold Jordan’s human rights law.
its decision following the same rationale. international obligations arising from the Convention mainly A dynamic interpretation
means that the provisions of
through the interpretative use of the Convention. CEDAW should be interpreted
The national judiciaries of many State Parties to CEDAW have in relation to contemporary
adopted this approach. Among important examples to consider, Using CEDAW as an interpretative standard does not mean ideas and conditions
is the judgment of the Supreme Court in Costa Rica, of 11 merely using it as a way of clarifying ambiguous national legal continuously readapting to
changing times.
November 199259 . In summary Article 14(5) of the Costa Rican rules, but it practically and legally means that Jordanian judges
A teleological interpretation
Constitution recognised the citizenship rights of a foreign should adopt the meaning most consistent with the Convention of the Convention means
woman that marries a Costa Rican man. It did not however when interpreting relevant national laws. that a judge should interpret
recognise the same for a foreign man that marries a Costa Rican the provisions of CEDAW so
woman. Her citizenship rights did not extend to her spouse. The possibility of using CEDAW as an interpretative tool in as to promote the objective
for which the Convention
The court decided to abolish Article 14(5) of the Constitution applying Jordanian law is available to judges and prosecutors,
actually was made. In this
as it discriminated on the basis of sex. Costa Rica adopted the considering that the Court of Cassation of Jordan has ruled on sense, the idea of teleological
provisions contained in both ICCPR and the Inter-American the superiority of international conventions over Jordanian law. interpretation has become
Convention on Human Rights relating to equality and non- Even if in some State Parties the authority of judges to apply the one of the basic elements
upon which the national
discrimination. In conclusion, the court ruled that citizenship Convention as an interpretative tool is derived from the national
judiciaries rely when using
rights for non-national spouses of both male and female Costa Constitution61, the absence of a similar provision does not prevent the Convention as an
Rican citizens would be equal. the courts of other States Parties from adopting this approach. interpretative tool.
The national judiciaries of some Arab countries, who are party Domestic courts that use CEDAW as an interpretative tool should
to CEDAW, such as Tunisia, directly apply the provisions of this rely on the notion of dynamic and teleological interpretation
61 See articles 231/32 of the
Convention based on the principle of equality and prohibition of of the Convention. A dynamic interpretation means that the
Constitution of South Africa, 1996,
discrimination. On 27 June 2006, a Tunisian court has ruled on provisions of CEDAW should be interpreted in relation to Article 6/2 of the Constitution of
the invalidity of a marriage contract concluded in Egypt between contemporary ideas and conditions continuously readapting to Georgia, 1991, Article 17/1 of the
Constitution of Russia, 1993 and
a Tunisian and his second-wife, because it violates the principle changing times, not in the light of the circumstances prevailing Article 10/2 of the Constitution of
of equality between spouses, provided for in the Universal at the time of its drafting62. A teleological interpretation of the Spain.
Declaration of Human Rights, and Articles 1, 2 and 16 (c) of Convention means that a judge should interpret the provisions of
62 M. K. Al-Moussa, The
CEDAW60. CEDAW so as to promote the objective for which the Convention Interpretation of International
actually was made. In this sense, the idea of teleological Human Rights Conventions in the
interpretation has become one of the basic elements upon which Light of the Practice of Treaties
Bodies, “Journal of Law”, University
the national judiciaries rely when using the Convention as an of Kuwait, first issue, year 28, 2004,
interpretative tool. p. 257.
80 The role of judges, prosecutors and lawyers in enforcing CEDAW
Thus, legal practitioners have a key role in protecting and
securing respect for the principles and provisions stipulated in
CEDAW. Principally, this role consists in operating within the
framework of the Convention while exercising their functions,
either through direct application of its provisions or through the
use of CEDAW as an interpretative standard.
CEDAW in Lawyers’ Practice
As noted earlier, the most effective method for guaranteeing
the implementation of CEDAW is through the direct application
of its provisions. Under this approach lawyers can build their
litigation strategies on provisions of the Convention, based
on the knowledge that international treaty law is superior to
national law.
When building a case, lawyers must invoke the principles and
legal provisions set forth in the Convention, rather than simply
applying the literal meaning of the text. It is desirable that
cases are based not strictly on the Convention but also on the
authoritative interpretations provided by the Committee, and
taking into consideration the relevant jurisprudence of State
Parities, particularly those of Arab and Islamic countries.
In some cases it may be difficult for lawyers to use all the
provisions and articles of the Convention due to the reservations
made by State Parties. In this case they can look for similar
provisions and principles contained within other human rights
treaties. For example, Jordan’s reservation to articles 9(2) and
16(1)(c) of CEDAW may impede directly invoking these articles in
litigation, but there are other means to activate the protection of
the rights contained within these provisions. Legal practitioners
can call upon Article 2(3) and 26 of the ICCPR, which contain
the principle of equality and non-discrimination on the basis
of sex, as Jordan has not placed a reservation on any of the
articles of this Covenant. In addition, the Committee on Human
Rights used General Comment No. 28 to discuss Article 3 of
The role of judges, prosecutors and lawyers in enforcing CEDAW 81
the Covenant relating to equality between women and men,
this document can also be used as a relevant instrument when
building cases.
It has been noted above that Jordan’s reservations are not legally
valid, and therefore lawyers can challenge such reservations on
the basis of Article 28(2) of CEDAW. It is possible that a Jordanian
judge, when examining the compatibility of the reservations
with article 28(2), will find the reservation to be illegitimate
as they violate the objective and purposes of the Convention.
In addition, the reservations were not published in the Official
Gazette together with the Convention, therefore it can be argued
that they are not legally binding at the domestic level and that
the Convention can be applied In Jordan in its totality. The
judiciaries of some State Parties to human rights conventions
have opted to examine the legality of reservations made by their
own States.
Legal practitioners may also choose to invoke the provisions
set forth in other human rights conventions on issues related
to women’s rights because they are more effective in achieving
the desired outcomes. For example, in the case of a woman
victim of violence that caused serious physical or moral pain by
a public official, lawyers may use article 1 or 16 of CAT. An act
committed by the public official, in fact, can amount to torture
in accordance with the definition provided in Article 1 of CAT, or
to discrimination in accordance with the definition contained in
Article 1 of CEDAW63 .
There is another issue that is worth mentioning at this point; the
difference in views related to women’s rights between the Arab
Charter on Human Rights and CEDAW should not undermine the
implementation of the Convention’s provisions. The Arab Charter
itself, in Article 42 stresses that the ratification of the Charter
should not impede State Parties from their commitments
deriving from other international or regional agreements.
The Arab Charter on Human Rights has been published in the 63 General Recommendation No.19,
Jordanian Official Gazette in 2004. supra note 19, para. 1, 6 and 7.
82 The role of judges, prosecutors and lawyers in enforcing CEDAW
64 Global Rights, Promoting
Women’s Human Rights. A Resource
Guide for Litigating International
Law in Domestic Courts, 2006, p. 65.
Finally, it is important to emphasise that lawyers should refer
to case law issued by other State Parties to CEDAW. This element
is important for judges as it provides the opportunity to follow
positive and clear models in the application of the provisions
of the Convention itself. In addition, the reference to the rulings
of domestic courts of other countries will put some kind
of pressure on judges in Jordan regarding the implementation
of the Convention. Public Authorities in Jordan would not wish
to be perceived as being less aware and ‘advanced’ than other
States, in particular when it comes to neighbouring countries
or those that share the same cultural and social heritage as
Jordan. In Africa this aspect was already proven effective, for
example, the Constitutional Court of South Africa has referred
to the judgments of the courts of Zimbabwe, Nigeria, Tanzania
and Ghana on the application of human rights conventions
including CEDAW64 .
Certainly, when domestic courts refer to decisions of other
national courts, they do not do so because these judgments
are binding, but because they are seeking to enhance the
interpretation of the Convention and enrich arguments
in the cases they deal with.
Why Should Lawyers Invoke CEDAW in
Domestic Courts?
There is no doubt that the reliance on and reference to CEDAW
by lawyers in Jordan when dealing with their cases, is very
important for a number of reasons:
1. It contributes to the general awareness of the Convention
as the most important principles and legal provisions aim
at eliminating all forms of discrimination against women.
2. It highlights the need for training judges on CEDAW,
in particular, and on other human rights conventions
in general. It also stresses the importance of providing
The role of judges, prosecutors and lawyers in enforcing CEDAW 83
them with the necessary skills to understand the
dimensions and implications of the rights protected under
those conventions, and how to apply them in the light of
experiences of national courts in different States.
3. It is an advocacy tool to put pressure on competent authorities
in Jordan to modify and harmonise legislation in force in
Jordan in a manner consistent with Jordan’s obligations under
CEDAW.
4. It urges and encourages judges to directly apply the provisions
of the Convention, and reminds them of the importance of
the preferred method of its application by the Committee on
the Elimination of Discrimination Against Women.
5. It leads to the discovery of violations, abuses and injustice
committed against women and assists in documenting
these violations. It also contributes to highlight other forms
of discrimination against women that are not obvious,
particularly those relating to social, cultural or religious
factors.
6. It urges the authorities and parties concerned at the national
level to find effective remedies for women whom right’s
protected under the Convention has been violated. This
process may also lead to Jordan’s accession to the Optional
Protocol to the Convention, as experience demonstrates that
countries that provide effective remedies in their national
systems for victims are more likely to become State Parties.
 Domestic courts in many countries and
different legal systems have applied the
provisions of CEDAW. The issues and topics
on which the Convention was used include,
among others, violence against women,
equality in marriage rights, labour rights
of women and women’s right to confer their
nationality to their children.

The most important cases that can be

invoked by lawyers to support their litigation
strategy and to facilitate the application of the

6 CEDAW
provisions of the Convention in the national
Models of application of courts are as follows:
in Different Legal
Systems
86 Models of application of CEDAW in Different Legal Systems
Attorney General of Botswana v. Unity Dow
(Botswana Supreme Court, 1992)
The facts of this case were this: the Citizenship Act of 1984
contained legal provisions preventing a female citizen of
Botswana from passing her citizenship onto her husband, if
he was a non-citizen, or her children from this marriage. The
Citizenship Act did not place the same restriction on males who
marry a non-citizen woman. It is worth noting that at the time,
Botswana was not a party to any international human rights
Conventions. The woman who brought the complaint before
the court had married a non-Botswanian citizen and had two
children. Due to the Citizenship Act, neither the father nor the
children acquired the woman’s nationality.
The plaintiff, in this case, had demanded that both the male
spouse and the children were entitled to citizenship from
Botswana, based on several legal grounds:
A. The Citizenship Act was challenged in its legitimacy based
on the fact that the law discriminated against women and
that it violated the Constitution of Botswana which afforded
all individuals basic human rights regardless of their sex.
B. It was argued that the Citizenship Act limited her
freedom of movement, a right recognised by the Botswana’s
Constitution, due to the fact that her children were not
citizens and that a man in the same position would not
have faced similar challenges.
C. Finally, it was also argued that the discriminatory provision
embodied in the Citizenship Act amounted to inhuman
and degrading treatment and that she was denied equal
protection under the law.
The counter argument presented by the State invoked
customary law in force in Botswana, asserting that was based
on the patrilineal societal structures, and if gender-based
Models of application of CEDAW in Different Legal Systems 87
discrimination were outlawed, very little would have remained
of customary law.
In 1992, the Supreme Court in Botswana concluded in its ruling
that the Citizenship Act was discriminatory against women,
and violated the Constitution. The individual rights that were
violated by the Act included: the right to liberty, the right to
protection of the law, protection of being subjected to degrading
treatment, and not to be discriminated against on the basis of
her sex. In addition to the National Constitution, the opinion
of the court relied on a number of international conventions
even though at that time Botswana was not signatory to them.
These conventions included: CEDAW, the Convention on the
Rights of the Child, the Universal Declaration of Human Rights,
and the African Charter on Human Right.
This court’s ruling constituted a very important precedent and
the fact that the international conventions were used even
if the State was not a signatory, was justified by pointing out
the mere fact that Botswana is a member of the community
of Nations through the UN, which entitled them to take judicial
notice of these international instruments. One of the judges
commented on this issue by saying that the national application
of international human rights has become the legal basis for the
enforcement of the minimum requirements of the constitution.
In this case the international human rights are, in fact, a part
of the constitutional expression of liberties guaranteed at the
national level.
This decision urged Botswana to ratify both CEDAW and
the Convention on the Rights of the Child, and amend the
Citizenship Act. Interestingly, this decision has had important
repercussions on the neighboring countries of Botswana.
The Supreme Court of Zimbabwe has referred to this decision
in the case Rattigan and Ors. v. Chief Immigration Officer
(1994), stating that “the practices of the Immigration Office in
Zimbabwe were preventing an alien husband from living with
his wife in Zimbabwe were contradicting the Constitution”.
88 Models of application of CEDAW in Different Legal Systems
65 See at:www.womenstreaty.org
//cedaw% 20Book% 20ch% 204.pdf
Ephrahim v. Pastory
(High Court of Tanzania, 1990)
The appellant challenged a Tanzanian law that forbade
her to sell the clan land that she inherited from her father.
The restriction meant that women could benefit only from
having the land in usufruct, but not actually own it. The
Supreme Court of Tanzania concluded in its ruling that this
law was in contradiction with both the national Constitution
which guarantees equal rights for women, and with CEDAW.
Accordingly, the Court ruled to outlaw this custom stating that
it was discriminatory as it violated women’s property rights. The
court declared that the principles enunciated in CEDAW are a
standard below which any civilized nation will be ashamed to
fall65 .
Njobeka v. Mkorogoro
(High Court of Tanzania, 2001)
This case refers to a husband who divorced his wife in
accordance with the provisions of the Islamic law. The National
Muslim Council of Tanzania approved this divorce and
recommended the husband to pay the deferred dowry agreed
upon between the spouses in the marriage contract. The husband
did not comply with the recommendation of the Council, so
the wife filed a lawsuit before the Primary Court; which again
issued a decision allowing for divorce, and ordering the husband
to pay the amount agreed upon in the contract of marriage.
The wife challenged this decision before the Supreme Court
in Dar El Salaam on the basis that the Primary Court ruling
was inadequate as it did not take into account both parties’
contributions to the marital property.
The Supreme Court held that the Primary Court erred in
adopting the recommendation of the Muslim National Council
of Tanzania because this is a reconciliation Council, and its
jurisdiction expires the moment it fails to reach an amicable
Models of application of CEDAW in Different Legal Systems 89
solution to the case. The Supreme Court also added that the
Primary Court erred because it did not provide an effective
remedy in accordance with the principle of equality in the
legal protection of the law guaranteed by Article 13(1) of the
Constitution. Moreover, the decision of the Primary Court was
contrary to Article 2(a) of CEDAW, which obliges State Parties
to incorporate the principle of equality before the law in their
national constitutions or other relevant legislation and ensure
the de facto application of this principle. It was also pointed out
that the Tanzanian Constitution expressly recognised the UDHR
which is a source for all other international instruments dealing
with human rights.
The court, therefore, concluded to set aside the lower courts
decision and to replace it with another order that the appellant
should receive one of the two houses, owned by the husband,
rather than only compelling the husband to only pay the dowry
amount66.
Dhungana v. Government of Nepal
(High Court of Nepal, 1993)
A Nepali law provided that while a son was entitled to receive a
share of the assets of his father at birth, this was not the case for
a daughter. She would receive her share only if when reaching
the age of 35 she was still unmarried; this law was challenged.
The Supreme Court in its decision invoked CEDAW, which
in Nepal has the status of national law, to recognise that the
66 See at: www.globalisaticerter.
challenged law violated Article 15 of the Convention and the net/tools/manual/int-law/legal-
guarantee of equality set forth in the Nepali Constitution. The rolehtml
Court did not declare the law unconstitutional but ordered the
67 See at: www.womenstreaty.
government to draft a new non-discriminatory law to eliminate org//cedaw%20Book%20ch%204.
inequities between men and women in regards to inheritance pdf
rights67.
90 Models of application of CEDAW in Different Legal Systems Models of application of CEDAW in Different Legal Systems 91

Vishaka v. State of Rajasthan Municipal Corporation of Delhi v. Female Workers

(3 BHRC, 261)
A network of women’s rights NGO and human rights activists
lodged a writ in the Indian Supreme Court in support of a
government employee that was gang raped and then denied
an official investigation after her complaint. At the time of
the petition there was no explicit law in India that prohibits
sexual harassment in the work place. The petition requested
the Supreme Court to direct the Indian Government to form
a Committee to draft a law for the prevention of sexual
harassment and abuse of women according to Article 32 of the
Indian Constitution and Articles 11 and 24 of CEDAW.
The Court turned to CEDAW in its ruling, giving further
meaning and elaborating the constitutional guarantees against
sexual discrimination. In addition the Court highlighted
the fact that by ratifying CEDAW, India endorsed and upheld
international standards on women’s rights. As a result, there
is now a set of norms binding public and private employees.
The norms contain definitions and passages taken directly
from CEDAW Committee General Recommendation No.19.
(High Court of India)
The case is significant when examining the application of the
provisions of CEDAW in national jurisdictions. The importance
of this case lies in that the Supreme Court of India has
implemented the provisions of CEDAW in a ruling concerning
a mixed ownership corporation (private and public). The female
workers of the Municipal Corporation of Delhi were denied leave
under the Maternity Benefit Act (1961) because they were not
“regular” employees. The court ruled that nothing contained
in the Act pertained only to “regular” employees. Moreover the
court established that the provisions of Article 11 of CEDAW,
which deals with marital status and maternity in the context
of employment, “should be read into the contract of service”
between the Corporation and the women employees and therefore
these employees are entitled to all the benefits under the
Maternity Benefit Act.

The Court highlighted in its ruling that any international

68 See at: www.
globalisaticecenter.net/tools/
manual/int-law/legal-rolehtml
convention that is not inconsistent with the fundamental
rights guaranteed in the Constitution, must be used for the
interpretation and application of constitutional guarantees
and to promote its purposes, irrespective of the existence
ofan enacting law. The court therefore concluded that Articles
11 and 24 of CEDAW, and the General Recommendation 19
paragraphs 22, 23 and 24 on sexual harassment in the workplace,
could be used to understand the nature and content of gender
equality guaranteed under the Constitution68.
Annexes
94 Annexes
Convention on the Elimination of All Forms of
Discrimination against Women New York, 18
December 1979
The States Parties to the present Convention,
Noting that the Charter of the United Nations reaffirms faith in
fundamental human rights, in the dignity and worth of the human person
and in the equal rights of men and women,
Noting that the Universal Declaration of Human Rights affirms the
principle of the inadmissibility of discrimination and proclaims that
all human beings are born free and equal in dignity and rights and that
everyone is entitled to all the rights and freedoms set forth therein,
without distinction of any kind, including distinction based on sex,
Noting that the States Parties to the International Covenants on Human
Rights have the obligation to ensure the equal rights of men and women to
enjoy all economic, social, cultural, civil and political rights,
Considering the international conventions concluded under the auspices
of the United Nations and the specialized agencies promoting equality of
rights of men and women,
Noting also the resolutions, declarations and recommendations adopted
by the United Nations and the specialized agencies promoting equality of
rights of men and women,
Concerned, however, that despite these various instruments extensive
discrimination against women continues to exist,
Recalling that discrimination against women violates the principles of
equality of rights and respect for human dignity, is an obstacle to the
participation of women, on equal terms with men, in the political, social,
economic and cultural life of their countries, hampers the growth of
the prosperity of society and the family and makes more difficult the
full development of the potentialities of women in the service of their
countries and of humanity,
Concerned that in situations of poverty women have the least access to
food, health, education, training and opportunities for employment and
other needs,
Convinced that the establishment of the new international economic
order based on equity and justice will contribute significantly towards the
promotion of equality between men and women,
Annexes 95
Emphasizing that the eradication of apartheid, all forms of racism,
racial discrimination, colonialism, neo-colonialism, aggression, foreign
occupation and domination and interference in the internal affairs of
States is essential to the full enjoyment of the rights of men and women,
Affirming that the strengthening of international peace and security,
the relaxation of international tension, mutual co-operation among all
States irrespective of their social and economic systems, general and
complete disarmament, in particular nuclear disarmament under strict
and effective international control, the affirmation of the principles of
justice, equality and mutual benefit in relations among countries and the
realization of the right of peoples under alien and colonial domination
and foreign occupation to self-determination and independence, as well
as respect for national sovereignty and territorial integrity, will promote
social progress and development and as a consequence will contribute to
the attainment of full equality between men and women,
Convinced that the full and complete development of a country, the
welfare of the world and the cause of peace require the maximum
participation of women on equal terms with men in all fields,
Bearing in mind the great contribution of women to the welfare of the
family and to the development of society, so far not fully recognized, the
social significance of maternity and the role of both parents in the family
and in the upbringing of children, and aware that the role of women
in procreation should not be a basis for discrimination but that the
upbringing of children requires a sharing of responsibility between men
and women and society as a whole,
Aware that a change in the traditional role of men as well as the role of
women in society and in the family is needed to achieve full equality
between men and women,
Determined to implement the principles set forth in the Declaration on the
Elimination of Discrimination against Women and, for that purpose, to
adopt the measures required for the elimination of such discrimination in
all its forms and manifestations,
Have agreed on the following:
PART I
Article I
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
96 Annexes
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.
Article 2
States Parties condemn discrimination against women in all its forms,
agree to pursue by all appropriate means and without delay a policy of
eliminating discrimination against women and, to this end, undertake:
(a) To embody the principle of the equality of men and women in
their national constitutions or other appropriate legislation if not yet
incorporated therein and to ensure, through law and other appropriate
means, the practical realization of this principle;
(b) To adopt appropriate legislative and other measures, including
sanctions where appropriate, prohibiting all discrimination against
women;
(c) To establish legal protection of the rights of women on an equal basis
with men and to ensure through competent national tribunals and other
public institutions the effective protection of women against any act of
discrimination;
(d) To refrain from engaging in any act or practice of discrimination
against women and to ensure that public authorities and institutions shall
act in conformity with this obligation;
(e) To take all appropriate measures to eliminate discrimination against
women by any person, organization or enterprise;
(f) To take all appropriate measures, including legislation, to modify or
abolish existing laws, regulations, customs and practices which constitute
discrimination against women;
(g) To repeal all national penal provisions which constitute discrimination
against women.
Article 3
States Parties shall take in all fields, in particular in the political, social,
economic and cultural fields, all appropriate measures, including
legislation, to en sure the full development and advancement of women,
for the purpose of guaranteeing them the exercise and enjoyment of
human rights and fundamental freedoms on a basis of equality with men.
Annexes 97
Article 4
1. Adoption by States Parties of temporary special measures aimed at
accelerating de facto equality between men and women shall not be
considered discrimination as defined in the present Convention, but shall
in no way entail as a consequence the maintenance of unequal or separate
standards; these measures shall be discontinued when the objectives of
equality of opportunity and treatment have been achieved.
2. Adoption by States Parties of special measures, including those measures
contained in the present Convention, aimed at protecting maternity shall
not be considered discriminatory.
Article 5
States Parties shall take all appropriate measures:
(a) To modify the social and cultural patterns of conduct of men and women,
with a view to achieving the elimination of prejudices and customary and
all other practices which are based on the idea of the inferiority or the
superiority of either of the sexes or on stereotyped roles for men and women;
(b) To ensure that family education includes a proper understanding
of maternity as a social function and the recognition of the common
responsibility of men and women in the upbringing and development of
their children, it being understood that the interest of the children is the
primordial consideration in all cases.
Article 6
States Parties shall take all appropriate measures, including legislation, to
suppress all forms of traffic in women and exploitation of prostitution of
women.
PART II
Article 7
States Parties shall take all appropriate measures to eliminate
discrimination against women in the political and public life of the
country and, in particular, shall ensure to women, on equal terms with
men, the right:
(a) To vote in all elections and public referenda and to be eligible for
election to all publicly elected bodies;
(b) To participate in the formulation of government policy and the
implementation thereof and to hold public office and perform all public
functions at all levels of government;
98 Annexes
(c) To participate in non-governmental organizations and associations
concerned with the public and political life of the country.
Article 8
States Parties shall take all appropriate measures to ensure to women, on
equal terms with men and without any discrimination, the opportunity to
represent their Governments at the international level and to participate
in the work of international organizations.
Article 9
1. States Parties shall grant women equal rights with men to acquire,
change or retain their nationality. They shall ensure in particular that
neither marriage to an alien nor change of nationality by the husband
during marriage shall automatically change the nationality of the wife,
render her stateless or force upon her the nationality of the husband.
2. States Parties shall grant women equal rights with men with respect to
the nationality of their children.
PART III
Article 10
States Parties shall take all appropriate measures to eliminate
discrimination against women in order to ensure to them equal rights
with men in the field of education and in particular to ensure, on a basis of
equality of men and women:
(a) The same conditions for career and vocational guidance, for access to
studies and for the achievement of diplomas in educational establishments
of all categories in rural as well as in urban areas; this equality shall
be ensured in pre-school, general, technical, professional and higher
technical education, as well as in all types of vocational training;
(b) Access to the same curricula, the same examinations, teaching
staff with qualifications of the same standard and school premises and
equipment of the same quality;
(c) The elimination of any stereotyped concept of the roles of men
and women at all levels and in all forms of education by encouraging
coeducation and other types of education which will help to achieve
this aim and, in particular, by the revision of textbooks and school
programmes and the adaptation of teaching methods;
(d ) The same opportunities to benefit from scholarships and other study
grants;
Annexes 99
(e) The same opportunities for access to programmes of continuing
education, including adult and functional literacy programmes,
particulary those aimed at reducing, at the earliest possible time, any gap
in education existing between men and women;
(f) The reduction of female student drop-out rates and the organization of
programmes for girls and women who have left school prematurely;
(g) The same Opportunities to participate actively in sports and physical
education;
(h) Access to specific educational information to help to ensure the health
and well-being of families, including information and advice on family
planning.
Article 11
1. States Parties shall take all appropriate measures to eliminate
discrimination against women in the field of employment in order to
ensure, on a basis of equality of men and women, the same rights, in
particular:
(a) The right to work as an inalienable right of all human beings;
(b) The right to the same employment opportunities, including the
application of the same criteria for selection in matters of employment;
(c) The right to free choice of profession and employment, the right
to promotion, job security and all benefits and conditions of service
and the right to receive vocational training and retraining, including
apprenticeships, advanced vocational training and recurrent training;
(d) The right to equal remuneration, including benefits, and to equal
treatment in respect of work of equal value, as well as equality of
treatment in the evaluation of the quality of work;
(e) The right to social security, particularly in cases of retirement,
unemployment, sickness, invalidity and old age and other incapacity to
work, as well as the right to paid leave;
(f) The right to protection of health and to safety in working conditions,
including the safeguarding of the function of reproduction.
2. In order to prevent discrimination against women on the grounds of
marriage or maternity and to ensure their effective right to work, States
Parties shall take appropriate measures:
(a) To prohibit, subject to the imposition of sanctions, dismissal on
the grounds of pregnancy or of maternity leave and discrimination in
dismissals on the basis of marital status;
(b) To introduce maternity leave with pay or with comparable social
100 Annexes
benefits without loss of former employment, seniority or social allowances;
(c) To encourage the provision of the necessary supporting social services
to enable parents to combine family obligations with work responsibilities
and participation in public life, in particular through promoting the
establishment and development of a network of child-care facilities;
(d) To provide special protection to women during pregnancy in types of
work proved to be harmful to them.
3. Protective legislation relating to matters covered in this article shall be
reviewed periodically in the light of scientific and technological knowledge
and shall be revised, repealed or extended as necessary.
Article 12
1. States Parties shall take all appropriate measures to eliminate
discrimination against women in the field of health care in order to
ensure, on a basis of equality of men and women, access to health care
services, including those related to family planning.
2. Notwithstanding the provisions of paragraph I of this article, States
Parties shall ensure to women appropriate services in connection with
pregnancy, confinement and the post-natal period, granting free services
where necessary, as well as adequate nutrition during pregnancy and
lactation.
Article 13
States Parties shall take all appropriate measures to eliminate
discrimination against women in other areas of economic and social life in
order to ensure, on a basis of equality of men and women, the same rights,
in particular:
(a) The right to family benefits;
(b) The right to bank loans, mortgages and other forms of financial credit;
(c) The right to participate in recreational activities, sports and all aspects
of cultural life.
Article 14
1. States Parties shall take into account the particular problems faced by
rural women and the significant roles which rural women play in the
economic survival of their families, including their work in the non-
monetized sectors of the economy, and shall take all appropriate measures
to ensure the application of the provisions of the present Convention to
women in rural areas.
Annexes 101
2. States Parties shall take all appropriate measures to eliminate
discrimination against women in rural areas in order to ensure, on a basis
of equality of men and women, that they participate in and benefit from
rural development and, in particular, shall ensure to such women the
right:
(a) To participate in the elaboration and implementation of development
planning at all levels;
(b) To have access to adequate health care facilities, including information,
counselling and services in family planning;
(c) To benefit directly from social security programmes;
(d) To obtain all types of training and education, formal and non-formal,
including that relating to functional literacy, as well as, inter alia, the
benefit of all community and extension services, in order to increase their
technical proficiency;
(e) To organize self-help groups and co-operatives in order to obtain
equal access to economic opportunities through employment or self
employment;
(f) To participate in all community activities;
(g) To have access to agricultural credit and loans, marketing facilities,
appropriate technology and equal treatment in land and agrarian reform
as well as in land resettlement schemes;
(h) To enjoy adequate living conditions, particularly in relation to housing,
sanitation, electricity and water supply, transport and communications.
PART IV
Article 15
1. States Parties shall accord to women equality with men before the law.
2. States Parties shall accord to women, in civil matters, a legal capacity
identical to that of men and the same opportunities to exercise that
capacity. In particular, they shall give women equal rights to conclude
contracts and to administer property and shall treat them equally in all
stages of procedure in courts and tribunals.
3. States Parties agree that all contracts and all other private instruments
of any kind with a legal effect which is directed at restricting the legal
capacity of women shall be deemed null and void.
4. States Parties shall accord to men and women the same rights with
regard to the law relating to the movement of persons and the freedom to
choose their residence and domicile.
102 Annexes
Article 16
1. States Parties shall take all appropriate measures to eliminate
discrimination against women in all matters relating to marriage and
family relations and in particular shall ensure, on a basis of equality of
men and women:
(a) The same right to enter into marriage;
(b) The same right freely to choose a spouse and to enter into marriage only
with their free and full consent;
(c) The same rights and responsibilities during marriage and at its
dissolution;
(d) The same rights and responsibilities as parents, irrespective of their
marital status, in matters relating to their children; in all cases the
interests of the children shall be paramount;
(e) The same rights to decide freely and responsibly on the number and
spacing of their children and to have access to the information, education
and means to enable them to exercise these rights;
(f) The same rights and responsibilities with regard to guardianship,
wardship, trusteeship and adoption of children, or similar institutions
where these concepts exist in national legislation; in all cases the interests
of the children shall be paramount;
(g) The same personal rights as husband and wife, including the right to
choose a family name, a profession and an occupation;
(h) The same rights for both spouses in respect of the ownership,
acquisition, management, administration, enjoyment and disposition of
property, whether free of charge or for a valuable consideration.
2. The betrothal and the marriage of a child shall have no legal effect,
and all necessary action, including legislation, shall be taken to specify a
minimum age for marriage and to make the registration of marriages in
an official registry compulsory.
PART V
Article 17
1. For the purpose of considering the progress made in the implementation
of the present Convention, there shall be established a Committee on
the Elimination of Discrimination against Women (hereinafter referred
to as the Committee) consisting, at the time of entry into force of the
Convention, of eighteen and, after ratification of or accession to the
Convention by the thirty-fifth State Party, of twenty-three experts of high
moral standing and competence in the field covered by the Convention.
Annexes 103
The experts shall be elected by States Parties from among their nationals
and shall serve in their personal capacity, consideration being given
to equitable geographical distribution and to the representation of the
different forms of civilization as well as the principal legal systems.
2. The members of the Committee shall be elected by secret ballot from a
list of persons nominated by States Parties. Each State Party may nominate
one person from among its own nationals.
3. The initial election shall be held six months after the date of the entry
into force of the present Convention. At least three months before the date
of each election the Secretary-General of the United Nations shall address a
letter to the States Parties inviting them to submit their nominations within
two months. The Secretary-General shall prepare a list in alphabetical order
of all persons thus nominated, indicating the States Parties which have
nominated them, and shall submit it to the States Parties.
4. Elections of the members of the Committee shall be held at a meeting
of States Parties convened by the Secretary-General at United Nations
Headquarters. At that meeting, for which two thirds of the States Parties
shall constitute a quorum, the persons elected to the Committee shall be
those nominees who obtain the largest number of votes and an absolute
majority of the votes of the representatives of States Parties present and
voting.
5. The members of the Committee shall be elected for a term of four years.
However, the terms of nine of the members elected at the first election
shall expire at the end of two years; immediately after the first election the
names of these nine members shall be chosen by lot by the Chairman of
the Committee.
6. The election of the five additional members of the Committee shall be
held in accordance with the provisions of paragraphs 2, 3 and 4 of this
article, following the thirty-fifth ratification or accession. The terms of two
of the additional members elected on this occasion shall expire at the end
of two years, the names of these two members having been chosen by lot
by the Chairman of the Committee.
7. For the filling of casual vacancies, the State Party whose expert has
ceased to function as a member of the Committee shall appoint another
expert from among its nationals, subject to the approval of the Committee.
8. The members of the Committee shall, with the approval of the General
Assembly, receive emoluments from United Nations resources on such
terms and conditions as the Assembly may decide, having regard to the
importance of the Committee’s responsibilities.
104 Annexes
9. The Secretary-General of the United Nations shall provide the necessary
staff and facilities for the effective performance of the functions of the
Committee under the present Convention.
Article 18
1. States Parties undertake to submit to the Secretary-General of the United
Nations, for consideration by the Committee, a report on the legislative,
judicial, administrative or other measures which they have adopted to
give effect to the provisions of the present Convention and on the progress
made in this respect:
(a) Within one year after the entry into force for the State concerned;
(b) Thereafter at least every four years and further whenever the
Committee so requests.
2. Reports may indicate factors and difficulties affecting the degree of
fulfilment of obligations under the present Convention.
Article 19
1. The Committee shall adopt its own rules of procedure.
2. The Committee shall elect its officers for a term of two years.
Article 20
1. The Committee shall normally meet for a period of not more than two
weeks annually in order to consider the reports submitted in accordance
with article 18 of the present Convention.
2. The meetings of the Committee shall normally be held at United Nations
Headquarters or at any other convenient place as determined by the
Committee. (amendment, status of ratification)
Article 21
1. The Committee shall, through the Economic and Social Council, report
annually to the General Assembly of the United Nations on its activities
and may make suggestions and general recommendations based on the
examination of reports and information received from the States Parties.
Such suggestions and general recommendations shall be included in the
report of the Committee together with comments, if any, from States
Parties.
2. The Secretary-General of the United Nations shall transmit the reports
of the Committee to the Commission on the Status of Women for its
information.
Annexes 105
Article 22
The specialized agencies shall be entitled to be represented at the
consideration of the implementation of such provisions of the present
Convention as fall within the scope of their activities. The Committee may
invite the specialized agencies to submit reports on the implementation of
the Convention in areas falling within the scope of their activities.
PART VI
Article 23
Nothing in the present Convention shall affect any provisions that are
more conducive to the achievement of equality between men and women
which may be contained:
(a) In the legislation of a State Party; or
(b) In any other international convention, treaty or agreement in force for
that State.
Article 24
States Parties undertake to adopt all necessary measures at the national
level aimed at achieving the full realization of the rights recognized in the
present Convention.
Article 25
1. The present Convention shall be open for signature by all States.
2. The Secretary-General of the United Nations is designated as the
depositary of the present Convention.
3. The present Convention is subject to ratification. Instruments of
ratification shall be deposited with the Secretary-General of the United
Nations.
4. The present Convention shall be open to accession by all States. Accession
shall be effected by the deposit of an instrument of accession with the
Secretary-General of the United Nations.
Article 26
1. A request for the revision of the present Convention may be made at any
time by any State Party by means of a notification in writing addressed to
the Secretary-General of the United Nations.
2. The General Assembly of the United Nations shall decide upon the steps,
if any, to be taken in respect of such a request.
106 Annexes
Article 27
1. The present Convention shall enter into force on the thirtieth day after
the date of deposit with the Secretary-General of the United Nations of the
twentieth instrument of ratification or accession.
2. For each State ratifying the present Convention or acceding to it after
the deposit of the twentieth instrument of ratification or accession, the
Convention shall enter into force on the thirtieth day after the date of the
deposit of its own instrument of ratification or accession.
Article 28
1. The Secretary-General of the United Nations shall receive and circulate
to all States the text of reservations made by States at the time of
ratification or accession.
2. A reservation incompatible with the object and purpose of the present
Convention shall not be permitted.
3. Reservations may be withdrawn at any time by notification to this effect
addressed to the Secretary-General of the United Nations, who shall then
inform all States thereof. Such notification shall take effect on the date on
which it is received.
Article 29
1. Any dispute between two or more States Parties concerning the
interpretation or application of the present Convention which is not
settled by negotiation shall, at the request of one of them, be submitted
to arbitration. If within six months from the date of the request for
arbitration the parties are unable to agree on the organization of
the arbitration, any one of those parties may refer the dispute to the
International Court of Justice by request in conformity with the Statute of
the Court.
2. Each State Party may at the time of signature or ratification of the
present Convention or accession thereto declare that it does not consider
itself bound by paragraph I of this article. The other States Parties shall
not be bound by that paragraph with respect to any State Party which has
made such a reservation.
3. Any State Party which has made a reservation in accordance with
paragraph 2 of this article may at any time withdraw that reservation by
notification to the Secretary-General of the United Nations.
Annexes 107
Article 30
The present Convention, the Arabic, Chinese, English, French, Russian and
Spanish texts of which are equally authentic, shall be deposited with the
Secretary-General of the United Nations.
IN WITNESS WHEREOF the undersigned, duly authorized, have signed the
present Convention.
Optional Protocol to the Convention on the
Elimination of All Forms of Discrimination against
Women
The States Parties to the present Protocol,
Noting that the Charter of the United Nations reaffirms faith in
fundamental human rights, in the dignity and worth of the human person
and in the equal rights of men and women,
Also noting that the Universal Declaration of Human Rights5 proclaims
that all human beings are born free and equal in dignity and rights and
that everyone is entitled to all the rights and freedoms set forth therein,
without distinction of any kind, including distinction based on sex,
Recalling that the International Covenants on Human Rights6 and other
international human rights instruments prohibit discrimination on the
basis of sex,
Also recalling the Convention on the Elimination of All Forms of
Discrimination against Women4 (“the Convention”), in which the States
Parties thereto condemn discrimination against women in all its forms
and agree to pursue by all appropriate means and without delay a policy of
eliminating discrimination against women,
Reaffirming their determination to ensure the full and equal enjoyment
by women of all human rights and fundamental freedoms and to take
effective action to prevent violations of these rights and freedoms,
Have agreed as follows:
Article 1
A State Party to the present Protocol (“State Party”) recognizes the
108 Annexes
competence of the Committee on the Elimination of Discrimination
against Women (“the Committee”) to receive and consider communications
submitted in accordance with article 2.
Article 2
Communications may be submitted by or on behalf of individuals or
groups of individuals, under the jurisdiction of a State Party, claiming to
be victims of a violation of any of the rights set forth in the Convention
by that State Party. Where a communication is submitted on behalf of
individuals or groups of individuals, this shall be with their consent unless
the author can justify acting on their behalf without such consent.
Article 3
Communications shall be in writing and shall not be anonymous. No
communication shall be received by the Committee if it concerns a State
Party to the Convention that is not a party to the present Protocol.
Article 4
1. The Committee shall not consider a communication unless it has
ascertained that all available domestic remedies have been exhausted
unless the application of such remedies is unreasonably prolonged or
unlikely to bring effective relief.
2. The Committee shall declare a communication inadmissible where:
(a) The same matter has already been examined by the Committee or has
been or is being examined under another procedure of international
investigation or settlement;
(b) It is incompatible with the provisions of the Convention;
(c) It is manifestly ill-founded or not sufficiently substantiated;
(d) It is an abuse of the right to submit a communication;
(e) The facts that are the subject of the communication occurred prior to
the entry into force of the present Protocol for the State Party concerned
unless those facts continued after that date.
Article 5
1. At any time after the receipt of a communication and before a
determination on the merits has been reached, the Committee may transmit
to the State Party concerned for its urgent consideration a request that the
State Party take such interim measures as may be necessary to avoid possible
irreparable damage to the victim or victims of the alleged violation.
Annexes 109
2. Where the Committee exercises its discretion under paragraph 1 of the
present article, this does not imply a determination on admissibility or on
the merits of the communication.
Article 6
1. Unless the Committee considers a communication inadmissible without
reference to the State Party concerned, and provided that the individual or
individuals consent to the disclosure of their identity to that State Party,
the Committee shall bring any communication submitted to it under
the present Protocol confidentially to the attention of the State Party
concerned.
2. Within six months, the receiving State Party shall submit to the
Committee written explanations or statements clarifying the matter and
the remedy, if any, that may have been provided by that State Party.
Article 7
1. The Committee shall consider communications received under the
present Protocol in the light of all information made available to it by or
on behalf of individuals or groups of individuals and by the State Party
concerned, provided that this information is transmitted to the parties
concerned.
2. The Committee shall hold closed meetings when examining
communications under the present Protocol.
3. After examining a communication, the Committee shall transmit its
views on the communication, together with its recommendations, if any, to
the parties concerned.
4. The State Party shall give due consideration to the views of the
Committee, together with its recommendations, if any, and shall
submit to the Committee, within six months, a written response,
including information on any action taken in the light of the views and
recommendations of the Committee.
Article 8
2. Taking into account any observations that may have been submitted
by the State Party concerned as well as any other reliable information
available to it, the Committee may designate one or more of its members
to conduct an inquiry and to report urgently to the Committee. Where
warranted and with the consent of the State Party, the inquiry may include
a visit to its territory.
110 Annexes
3. After examining the findings of such an inquiry, the Committee shall
transmit these findings to the State Party concerned together with any
comments and recommendations.
4. The State Party concerned shall, within six months of receiving the
findings, comments and recommendations transmitted by the Committee,
submit its observations to the Committee.
5. Such an inquiry shall be conducted confidentially and the cooperation of
the State Party shall be sought at all stages of the proceedings.
Article 9
1. The Committee may invite the State Party concerned to include in its
report under article 18 of the Convention details of any measures taken in
response to an inquiry conducted under article 8 of the present Protocol.
2. The Committee may, if necessary, after the end of the period of six
months referred to in article 8.4, invite the State Party concerned to
inform it of the measures taken in response to such an inquiry.
5. The Committee may invite the State Party to submit further information
about any measures the State Party has taken in response to its views or
recommendations, if any, including as deemed appropriate by the Committee,
in the State Party’s subsequent reports under article 18 of the Convention.
1. If the Committee receives reliable information indicating grave
or systematic violations by a State Party of rights set forth in the
Convention, the Committee shall invite that State Party to cooperate in
the examination of the information and to this end to submit observations
with regard to the information concerned.
Article 10
1. Each State Party may, at the time of signature or ratification of the
present Protocol or accession thereto, declare that it does not recognize the
competence of the Committee provided for in articles 8 and 9.
2. Any State Party having made a declaration in accordance with paragraph
1 of the present article may, at any time, withdraw this declaration by
notification to the Secretary-General.
Article 11
A State Party shall take all appropriate steps to ensure that individuals
under its jurisdiction are not subjected to ill treatment or intimidation
as a consequence of communicating with the Committee pursuant to the
present Protocol.
Annexes 111
Article 12
The Committee shall include in its annual report under article 21 of the
Convention a summary of its activities under the present Protocol.
Article 13
Each State Party undertakes to make widely known and to give publicity
to the Convention and the present Protocol and to facilitate access to
information about the views and recommendations of the Committee, in
particular, on matters involving that State Party.
Article 14
The Committee shall develop its own rules of procedure to be followed
when exercising the functions conferred on it by the present Protocol.
Article 15
1. The present Protocol shall be open for signature by any State that has
signed, ratified or acceded to the Convention.
2. The present Protocol shall be subject to ratification by any State that has
ratified or acceded to the Convention. Instruments of ratification shall be
deposited with the Secretary-General of the United Nations.
3. The present Protocol shall be open to accession by any State that has
ratified or acceded to the Convention.
4. Accession shall be effected by the deposit of an instrument of accession
with the Secretary-General of the United Nations.
Article 16
1. The present Protocol shall enter into force three months after the date of
the deposit with the Secretary-General of the United Nations of the tenth
instrument of ratification or accession.
2. For each State ratifying the present Protocol or acceding to it after its
entry into force, the present Protocol shall enter into force three months
after the date of the deposit of its own instrument of ratification or
accession.
Article 17
No reservations to the present Protocol shall be permitted.
112 Annexes Annexes 113

Article 18 Article 21
1. Any State Party may propose an amendment to the present Protocol and 1. The present Protocol, of which the Arabic, Chinese, English, French,
file it with the Secretary-General of the United Nations. The Secretary- Russian and Spanish texts are equally authentic, shall be deposited in the
General shall thereupon communicate any proposed amendments to the archives of the United Nations.
States Parties with a request that they notify her or him whether they
favour a conference of States Parties for the purpose of considering and 2. The Secretary-General of the United Nations shall transmit certified
voting on the proposal. In the event that at least one third of the States copies of the present Protocol to all States referred to in article 25 of the
Parties favour such a conference, the Secretary-General shall convene the Convention
conference under the auspices of the United Nations. Any amendment
adopted by a majority of the States Parties present and voting at the Useful websites
conference shall be submitted to the General Assembly of the United
Nations for approval. 1- http://www.iwraw-ap.org./abouts.htm
3. When amendments come into force, they shall be binding on 2-http://www.ispm.org.ar
those States Parties that have accepted them, other States Parties still 3-http://www.un.org/womenwatch
being bound by the provisions of the present Protocol and any earlier 4-http://www.Whrenet.org
amendments that they have accepted. 5-http://www.Wao.org.my
6-http://www.ohchr.org/
Article 19 7-http://www.umn.edu/humanrts/
1. Any State Party may denounce the present Protocol at any time by 8-www.hrni.org
written notification addressed to the Secretary-General of the United 9-http://www.law-lib.utoronto.ca/Diana
Nations. Denunciation shall take effect six months after the date of receipt 10-http://www.hri.ca/index.aspx
of the notification by the Secretary-General. 11-http://www.hrea.org/
2. Denunciation shall be without prejudice to the continued application 12-http://www.unifem.org/
of the provisions of the present Protocol to any communication submitted 13-http://www.crlp.org/
under article 2 or any inquiry initiated under article 8 before the effective 14-http://mnaduocates.org/
date of denunciation. 15-http://www.awid.org
16-http://www.iwarp.org
Article 20 17-http://www.wluml.org/
The Secretary-General of the United Nations shall inform all States of: 18-http://amanjordan.org/cedaw/index.htm
(a) Signatures, ratifications and accessions under the present Protocol;
(b) The date of entry into force of the present Protocol and of any
amendment under article 18;
(c) Any denunciation under article 19.
2. Amendments shall come into force when they have been approved by
the General Assembly of the United Nations and accepted by a two-thirds
majority of the States Parties to the present Protocol in accordance with
their respective constitutional processes.
114 Contact Information

Contact Information
Mizan Law Group for Human Rights (Mizan)
Tel: +962 6 5690691
Fax: +962 6 5690681
E-mail: mizan@nets.jo
www.mizangroup.jo

The Jordanian National Commission for Women (JNCW)

Tel: +962 6 5560741
Fax: +962 6 5526768
E-mail: jncw@nets.com.jo
www.women.jo

Italian Consortium of Solidarity (ICS)

Tel/Fax: +962 6 5601046
E-mail: info@icsitalia.org
www.icsitalia.org