Gender and disability: the Convention on the Elimination of all Forms of Discrimination against Women
7.1 Introduction to CEDAW
7.1.1 Background
The United Nations General Assembly adopted CEDAW in 1979 after five years of work by the United Nations Commission on the Status of Women and, in the final stages, by a special General Assembly working group. The Convention entered into force in 1981 following its ratification by 20 States. By 8 February 2002, the number of States parties had risen to 168. On ratification they entered a large number of reservations to important articles, but many were later withdrawn.1
1 States may exempt themselves from one or more of the provisions of the instrument by formally submitting a reservation; reservations incompatible with the object and purpose of CEDAW are not permitted (article 28 (2)). Article 29 gives two or more States parties the right to refer a dispute about the interpretation of CEDAW for arbitration and, if it remains unresolved, to the International Court of Justice. To date this provision has not been acted on. See General Recommendations No. 4 and No. 20 on reservations to the Convention adopted by the Committee on the Elimination of Discrimination against Women (United Nations document HRI/GEN/1/Rev.5).
An Optional Protocol to CEDAW was adopted in 1999 which introduced two new enforcement mechanisms: (1) the consideration of individual complaints and (2) the conduct of inquires. The Optional Protocol entered into force on 22 December 2000.2 CEDAW deals exclusively with the human rights of women and girls. Its adoption greatly increased the visibility of women in the human rights system. This in turn created an awareness of both the obstacles to the enjoyment of human rights for women and the specific measures needed to remove them.
The overarching goal of CEDAW is the achievement of de facto equality for women with men. The Convention recognizes that targeting only the outward manifestations of inequality (discriminatory practices) is not enough. The achievement of de facto equality also necessitates the identification and elimination of the causes of
discrimination. Accordingly, article 5 requires States parties to modify any social and cultural practices that are based on suppositions about the superiority of either of the sexes or on stereotyped roles of men and women.
CEDAW is also applicable in the private sphere. This is important since a great deal of discrimination against women, including women with disabilities, occurs in the private sector. The State bears ultimate responsibility for the regulatory environment in which private discrimination takes place. The Convention requires States parties:
To take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise.3
The non-discrimination rights in CEDAW cover the whole spectrum of human rights, be they civil, political, economic, social or cultural.
The first six articles of the Convention are overarching in the sense that they create general obligations. Beginning with a definition of discrimination against women in article 1, they set forth States parties’ general obligations to end discrimination against women (article 2), require them to guarantee full enjoyment of all human rights for women on the basis of equality with men (article 3), give permission to introduce temporary special measures on behalf of women (article 4), impose an obligation to tackle stereotypes and prejudice and to bring about a proper understanding of maternity (article 5), and require States parties to suppress egregious abuses such as trafficking in women and the exploitation of prostitution (article 6).
Many of the remaining articles deal with general human rights but tailor them to the circumstances of discrimination against women. They set forth States parties’
obligations with respect to women’s education (article 10), employment (article 11) and health care (article 12), the participation of women in public and political life (article 7) and their participation at the international level (article 8). Article 13 requires States parties to eradicate discrimination against women in other areas of economic and social life. Article 14 focuses on rural women.
Another category of provision deals with the legal situation of women and their status within the family. Article 9 requires States parties to grant women equal rights to
2 General Assembly resolution 54/4 of 6 October 1999, annex.
3 Article 2(e).
acquire, change or retain their nationality. Article 15 requires them to guarantee women equality with men before the law, equal protection of the law, and freedom of movement and residence. Article 16 requires them to eliminate discrimination against women in all matters relating to marriage and family relations.
As acknowledged in General Comment No. 5 adopted by the Committee on
Economic, Social and Cultural Rights, women with disabilities may be vulnerable on account of both disability and gender. A woman with a disability is more likely to suffer from discrimination than an able-bodied woman. This is illustrated by the double jeopardy a woman with a disability faces when seeking to establish an independent, self-determined life. The cumulative effect of attitudes based on the interaction of gender and disability is that women with disabilities often have less independence, less access to education and less access to employment than both men with disabilities and able-bodied women.
7.1.2 Monitoring – the role of the CEDAW Committee
The Committee on the Elimination of Discrimination against Women monitors the implementation of the Convention. In accordance with article 17, the Committee is composed of twenty-three independent experts, elected for a renewable term of four years. The members are nominated by States parties and elected by State party representatives. They serve on the Committee in their personal capacity.
The Committee meets for two three-week sessions annually. Two working groups meet intersessionally, a pre-sessional working group and a Working Group on the Optional Protocol. Article 20 of CEDAW limits the Committee’s normal meeting time to two weeks annually but in 1995 the State parties adopted an amendment to article 20 introducing a procedure that allows for more flexible time allocation.4 So far, this amendment has not received the number of acceptances required for its entry into force. Since the early 1990s, and pending the entry into force of the amendment, the General Assembly has authorized the Committee to meet for two three-week sessions annually.5 An extraordinary session will be held in August 2002 to deal with the backlog of reports.
In contrast to the other United Nations human rights treaty bodies, which are based in Geneva, the Committee performs its task of monitoring the implementation of CEDAW in New York. At the time of the adoption of the Convention, it was decided that the Committee should be geographically connected to the Commission on the Status of Women6 and the Division for the Advancement of Women (DAW).7 The Committee can be contacted through:
4 General Recommendation No. 22 (HRI/GEN/1/Rev.5).
5 General Assembly resolution 51/68 of 12 December 1996. See also the Committee’s report on its fifteenth session, decision 15/I (A/51/38), p. 1.
6 The Commission on the Status of Women (CSW) is an intergovernmental body established by the Economic and Social Council in 1946 and based in New York.
7 The Division for the Advancement of Women (DAW) provides technical servicing to both the Commission on the Status of Women and the CEDAW Committee.
The Women's Rights Unit
Division for the Advancement of Women (DAW), United Nations
DC2-1228, 2 United Nations Plaza NY, NY 10017
Phone: 212 963 3162 Fax: 212 963 3463
7.1.3 Monitoring through State party reporting
Article 18 requires each State party to submit a report to the Committee within one year after the entry into force of CEDAW and every four years thereafter. The report should illustrate the legislative, judicial, administrative and other measures the State party has taken to give effect to the provisions of CEDAW.
At the end of the session preceding the session when a second or subsequent periodic report is being considered by the Committee, a working group examines the report and sends a written request for additional information (called a “list of issues”) to the State party. The State party submits a written reply (called “responses to the list of issues”) answering the questions raised by the working group. This practice is not used for initial reports, which are not considered by a working group before the relevant session. For each State party report, one member of the Committee is assigned the role of Country Rapporteur and serves as the main actor in both compiling the “list of issues” and reviewing the report.
The report is then discussed at a meeting between representatives of the Government of the State party and the Committee. A synthesis of the discussion is presented in the press releases.8 After deliberation, the Committee draws its conclusions about the performance of the State party and publishes them as its concluding comments, which offer guidance for the further implementation of the Convention by the State party.
The time lag between submission of a report and its consideration is roughly two years. As the Committee seeks to establish a geographical balance among the reports considered at each session, the waiting time varies. As many reports are overdue, the Committee has adopted a procedure whereby States parties are allowed to combine reports.9
7.1.4 Enforcement through individual complaints under the Optional Protocol to the Convention
State party reporting is not the only enforcement mechanism under CEDAW. The Convention has an Optional Protocol which provides for a right of complaint – something that was suggested in the Vienna Declaration and Programme of Action
8 Owing to the requirement that summary records of Committee meetings should be distributed simultaneously in all six official languages of the United Nations, no summary records have been published since 1997.
9 See rule 49, paragraph 3, of the Committee’s rules of procedure (A/56/38, annex I).
adopted in 1993.10 It entered into force on 22 July 2001 after the requisite number of ratifications had been deposited. Under the Optional Protocol, individual women and groups of women, under the jurisdiction of a State party, can submit complaints to the Committee alleging violations of the Convention provided that the State party in question has ratified the Protocol. A person other than the victim can also submit a complaint on her behalf.11
Article 10 of the Optional Protocol gives States parties the right not to recognize the competence of the Committee to conduct inquires. Other than that, no reservations to the Optional Protocol are permitted.12
When a communication is declared admissible, the Committee initiates a procedure of communication with the State party involved, which concludes with the transmission of its views on the issue to the State party. Within six months of receiving the views, the State party must inform the Committee of the action it has taken in the light of the Committee’s views and recommendations. The Committee may also invite the State party to submit further information on measures taken in subsequent periodic reports.13 The Committee also has the authority, before deciding on the merits of a case, to request the State party to take such interim measures as may be necessary to avoid possible irreparable damage to the victim or victims.14
Complaints under the Optional Protocol are to be sent to the Division for the Advancement of Women. As of October 2001, no registrable complaints under the Optional Protocol had been received. At its twenty-sixth session in January/February 2002, the Committee finalized guidelines for the submission of communications that had been drafted by the Working Group on the Optional Protocol. They will be published in the Committee’s next annual report to the General Assembly.
Articles 3 and 4 of the Optional Protocol set out the conditions for admissibility of complaints as follows:
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;
10 Vienna Declaration and Programme of Action (A/CONF.157/24, Part I).
11 Optional Protocol, article 2.
12 Optional Protocol, article 17.
13 Optional Protocol, articles 6 and 7.
14 Optional Protocol, article 5.
(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.
Rule 58 (1) of the Committee’s rules of procedure gives a further indication of the required form and content of complaints. It reads as follows:
Rule 58
1. The Secretary-General may request clarification from the author of a communication, including:
(a) The name, address, date of birth and occupation of the victim and verification of the victim’s identity;
(b) The name of the State party against which the communication is directed;
(c) The objective of the communication;
(d) The facts of the claim;
(e) Steps taken by the author and/or victim to exhaust domestic remedies;
(f) The extent to which the same matter is being or has been examined under another procedure of international investigation or settlement;
(g) The provision or provisions of the Convention alleged to have been violated.
7.1.5 Enforcement through “inquiries” under the Optional Protocol Another novel enforcement procedure under the Optional Protocol is the provision which allows the Committee to conduct an inquiry into allegations of “grave or systematic violations” of CEDAW rights by a State party.This could be useful in challenging practices against women with disabilities or practices that could lead to disabilities in women.
When the Committee receives information of such alleged violations, it invites the State party concerned to cooperate in the examination of the information and to submit relevant observations to the Committee. On the basis of its observations, and any other reliable information, the Committee can designate one or more of its members to conduct an inquiry and report back to the Committee. If the State party gives its consent, the inquiry may include a visit to its territory. Inquiries are confidential and the cooperation of the State party concerned is to be sought at all stages of the proceedings.
The Committee transmits its findings to the State party together with any comments and recommendations. Within six months of receiving the findings, comments and recommendations, the State party is required to submit its observations to the Committee.15 At the end of the six-month period, the Committee may, if necessary, invite the State party to inform it of the measures taken in response to the inquiry. It
15 Optional Protocol, article 8.
may also invite the State party to submit such information in subsequent periodic reports.16
To trigger an inquiry procedure under the Optional Protocol, information on alleged violations of the Convention should be sent to the Division for the Advancement of Women. Aside from article 8(1) of the Optional Protocol and rule 82(2) of the Committee’s rules of procedure, no documentation has been issued to date on the required form and content of information submitted under this procedure. Article 8(1) and rule 82(2) read as follows:
Article 8
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.
Rule 82
2. The Committee shall determine whether the information received contains reliable information indicating grave or systematic violations of rights set forth in the Convention by the State party concerned.
Although not very detailed, the above provisions give some indication of the required form and content of information to be submitted under the inquiry procedure. The information should indicate that the alleged violations are grave or systematic. This can be done by indicating the dates and frequency of occurrence of violations, the number of women affected and the impact of the violations. The information must be reliable. It should therefore be supported by evidence or corroborated by a large number of sources. The information must indicate the State party against which it is directed.
7.1.6 Towards normative clarity: the practice of issuing general recommendations
To assist States parties in fulfilling their obligations under CEDAW, the Committee issues general recommendations interpreting and elaborating on different aspects of their rights and obligations. While general recommendations are not legally binding as such, they represent the most authoritative interpretation of the Convention available.
Since 1997, the Committee has followed a three-stage procedure for the elaboration of general recommendations. First, it solicits information about the topic under
discussion from NGOs and other actors. Second, a member of the Committee prepares a draft for discussion by a working group of the Committee at the next session. Third, a revised draft is adopted at the subsequent session.
To date, the Committee has adopted 24 general recommendations and is currently elaborating General Recommendation No. 25 on the reconciliation of temporary special measures (article 4) with the general norm against discrimination (article 2).
Two general recommendations specifically mention disability.17
16 Optional Protocol, article 9.
General Recommendation No. 18 on “disabled women” focuses explicitly on women with disabilities and urges States parties to provide information on their situation in their periodic reports.
Among the general recommendations dealing with non-discrimination rights (as distinct from different categories of women), General Recommendation No. 24 on article 12 (women and health) contains a reference to women with disabilities. The content of the two general recommendations will be further analysed below.