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Foundational Principles on which CEDAW functions: An analysis on the ‘Convention on the Elimination of all forms of Discrimination Against Women’

1. An Introduction to the Basics:

1.1. What is the CEDAW?

The ‘Convention on the Elimination of all forms of Discrimination Against Women’, popularly abbreviated as CEDAW, is an International Human Rights treaty which focuses on women’s rights and women’s issues worldwide. In consideration to one of the United Nation’s purposes to promote universal respect for human rights and fundamental freedoms without distinction of any kind, including discrimination as to sex, the CEDAW Convention opened for signing, ratification and accession during the 34th session of the UNGA.[1]

Originally adopted in 1979, it is an international bill of rights for women and an agenda calling for action from states. Most countries around the world have signed the CEDAW Convention, meaning they are now obliged and committed to respect, protect, promote and fulfil the rights of women in their respective countries. The agreement focuses on the civil, political, economic, reproductive and social rights for women.[2] Including the aspect of gender relations, each of these key areas have within them specific provisions outlined. Consisting of 30 Articles, the CEDAW Convention’s functioning is attributable to three major principles of: (I) Non-Discrimination, (II) State Obligation and (III) Substantive Equality.

1.2. CEDAW’s Past: In Brief[3]

A year after the U.N was founded in 1945; the Commission on the Status of Women (CSW) was created. It was to address issues faced by women and discrimination. In the year 1963, the Commission was asked to prepare a declaration that would consolidate in itself all international standards relating to gender equality. A Declaration on the Elimination of Discrimination against Women was adopted in 1967, but was to no avail since it proved to be a statement of political intent rather than a binding treaty. The General Assembly, five years later, in 1972 asked the Commission to draft a binding treaty. Thus came into existence the CEDAW Convention.

A body of independent experts monitor the implementation of the CEDAW Convention. The CEDAW Committee of 23 experts on women’s rights from around the world, review reports regularly submitted by the State parties to the treaty. The Committee during its session analyses each report and addresses its concerns and recommendations by way of concluding observations.[4]

In 1999, the General Assembly by acting without a vote decided to adopt a 21-article ‘Optional Protocol’.[5] State Parties were called upon to ratify the same while recognizing the competence of the Committee to receive and consider complaints from individuals or groups within its jurisdiction. The Protocol consists of two procedures, namely the individual or group communications procedure and the inquiry procedure. This Protocol includes an “opt-out” clause allowing for states upon ratification or accession to declare that they do not conform to the inquiry procedure.[6]

2. The 3′ Principles of: Non-Discrimination, State Obligation and Substantive Equality[7]

2.1. The Principle of Non- discrimination:

Discrimination in both its direct and indirect forms is found aplenty in various countries even today. Many countries are found to discriminate among men and women under their nationality laws. This is said to occur when they allow the fathers to transfer their citizenship to their children while the mothers are not allowed to do so.Being a means of direct discrimination, this law disables the child from further access to other services such health and education which are dependent on citizenship in most states. This thereby curtails the child’s right of access to such essential services.

On the other hand, indirect discrimination comes from gender equal laws and policies. While the proverb all that glitters is not gold may be held to be true in such cases, these laws prima facie do seem to provide for equal opportunities and access to both genders. But in practice, women are found at the wrong end of the bargain where they are disadvantaged due to historical discrimination caused by the patriarchal system. While one particular law may be more welcoming towards women, another intertwined policy would make her forgo the opportunity. As a result, she is still left behind, and not at par with her opposite gender.

Patriarchy is the social system in which the role of the male, as the primary authority figure is central to social organisation.[8]Fathers were said to hold authority over the women, children and property. It implied the institution of male rule and privilege and was said to be dependent on its female subordination. In a patriarchy system, male traits are more valued than female traits. This is due to conceptualisation of the women to be associated to a much weaker figurine than her male counterpart.

The cultural and religious practices in many countries add to the burden a women faces, by limiting her role in matters of inheritance, clothing and visibility. These beliefs and practices have in turn led to the subjection of women to historical discrimination. It is thus important to keep in mind that non-discrimination for women must co-exist in de facto (of fact/ meaning what is actually happening in reality) and de jure (of law).  What a gender neutral law or policy seeks to achieve in a country is often only in letter, while the spirit is often overlooked without studying the deep rooted historical discrimination in place. Any gender neutral policy should look to adapt itself to local cultures, customs and multiple scenarios where they are to function. This would help the disadvantaged section of the womenfolk in the country to procure better access to opportunities and rights.

2.2. The Principle of Substantive Equality:

There are many contributing reasons to inequality. Some people seem to be born with much more access and opportunities than others. Gender stereotypes enforce the difference between men and women. It labels women as being weak and in need of protection. But, in reality, women are to be viewed equal and at par with men since they both share the same traits expect for reproductive capabilities. Men and women are different, but ultimately they are equal. Inequality in men and women is also reinforced by the patriarchal system that sees men as leaders. Women only account to 17% of the world parliaments, while 1/3rd of the entire women population is usually subject to abuse by someone close to her. 10 million more girls lose their right to education because many families view her as a burden and feel educating her would be a waste of resources. While it is was argued that men are to have greater rights to economic resources since they were responsible for providing for the family, reality seems to be taking a different stance today. With women excelling in almost all spheres of life, both in her career and at home, she is beginning to be viewed under a brighter lens. She is starting to be valued for her skills and capabilities. In South East Asia, many households are starting to be headed by ‘her’. However, she is still viewed to make up for 70% of the worlds’ poor.

Equality for women can be viewed in 3 different stages; Formal, Protectionist and Corrective. In the formal approach, society ignores that men and women are actually different by following the male standards disregarding women’s special needs. In the protectionist approach, she stands to lose opportunities since women are perceived as being vulnerable and are thus prohibited from participating in certain activities. In the corrective approach, priority is given to correct the environment in order to benefit both men and women equally.

In case of employment in a factory for night shifts, although both male and females may be allowed to be employed, in a formal approach the factory ignores that the women may be prone to assaults and harassment at night. Now, if the factory was to prohibit the employment of women for night shifts, she stands to lose out on extra income as per the protectionist approach. But the corrective approach looks to provide for an opportunity for the woman while also tending to her special needs. In this case, the may look to install better streetlights and bus facilities to safeguard the woman. The corrective approach thus leads to substantive equality. It recognizes differences but affirms equality while placing an obligation to rectify the environment. This needs the support of strong laws and policies to take the gender perspective into account. Substantive Equality ensures that women have equality in terms of opportunities, access to them and in getting the desired benefits out of them.

2.3. The principle of State Obligation:

Being one of the most widely ratified treaties worldwide, the CEDAW Convention as of February 2018 has been ratified by nearly all of the U.N’s 193 member states. Among those who are yet to ratify the agreement include Iran, Somalia, Sudan and the United States.[9] Once a country is known to have signed and ratified the treaty, the government of that particular country will then become a state party to the CEDAW Convention. This will mean that the government has agreed to take measures to improve women’s status in its country. The Convention thereby becomes a legally binding document on the country. The State is therefore obligated to subscribe to the Articles of the Convention and hence move towards effectively implementing the same. Every four years, the states are to report to the CEDAW Committee on the measures taken to respect, protect, promote and fulfil the rights of women in their countries. The states by respecting the rights of women should refrain from enacting discriminatory laws, engaging in discriminatory practices or any other violative acts. It is also to repeal all discriminatory laws.

In protecting the rights of the women, the state is to ensure the working of a proper complaint and redressal mechanism, while also regulating institutions, individuals and private actors such as businesses and corporations to ensure that they do not violate women’s rights. The state is to also look towards prohibiting all forms of discrimination while imposing sanctions against violators of discriminatory acts. By raising awareness on the rights of women in the country, the state is to promote women’s rights. 

The state by taking positive steps and providing for enabling conditions looks to fulfil the rights of women. It should also invest itself in developing the capacity of its institutions while enhancing opportunities to help build women’s ability thereby enabling for equality. The state must also remove hurdles that women face to ensure both de jure and de facto equality. This means that the state also has an obligation to implement temporary special measures until the prevalent discriminatory situation at hand corrects itself to provide for a non-discriminatory environment. Such temporary advantages are given to women in order to accelerate women’s equality and address historical discrimination. Reservations in top decision making positions for women help in the representation of women’s voices so that their interests are also heard. In a democratic setup, the combined and harmonious functioning of its 3 organs; the legislature, the judiciary and the executive will help achieve gender equality in the country. In summary, the state party to the CEDAW Convention must act with due diligence, which means the state is accountable for all discrimination against women, whether she is in the private or public sphere. The states should steer itself towards preventing, prohibiting and identifying discrimination in order to provide redress, impose sanctions and to promote women’s rights in equality through proactive measures. This would enable itself in accelerating towards de facto equality in the country.

3. An Analytical Perspective

Being criticized by many to act only as a symbolic commitment, the CEDAW Convention does not fare well, in light of its weak enforcement mechanisms. The challenges it faces in achieving its goals of gender equality and discrimination is due to the lack of effective means to concretely bind together these principles. To look at faring well in the long run, the Convention must bring these principles in letter and spirit, in de facto and de jure. Mere ratification of laws and policies do not attribute to eradicating discrimination. Promoting these laws to be efficiently implemented in society will help improve the status of women. Historical discrimination and patriarchal systems must take a back seat in order to pave the way for ‘her’ to stand tall and have a place at the decision making table. She is to be treated as an equal and in no way discriminated against her male counterpart. The Convention, prior to the adoption of the Optional Protocol, offered no direct mechanism for state parties to reconcile or retract their commitment from following the CEDAW principles. Deep rooted in domestic laws and practices, procedural innovations to these principles have the potential to overcome these fundamental hurdles this Convention faces.


[1]Convention on the Elimination of All Forms of Discrimination against Women, UNITED NATIONS HUMAN RIGHTS, https://www.ohchr.org/EN/ProfessionalInterest/Pages/CEDAW.aspx.

[2]Wade M. Cole, Convention on the Elimination of All Forms of Discrimination against Women,WILEY ONLINE LIBRARY (Apr. 21, 2016), https://onlinelibrary.wiley.com/doi/abs/10.1002/9781118663219.wbegss274.

[3]Short History of the CEDAW Convention, UN WOMEN, https://www.un.org/womenwatch/daw/cedaw/history.htm.

[4]Committee on the Elimination of Discrimination Against Women, UNITED NATIONS HUMAN RIGHTS, https://www.ohchr.org/EN/HRBodies/CEDAW/Pages/Introduction.aspx.

[5]Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women, UNITED NATIONS HUMAN RIGHTS, https://www.ohchr.org/EN/ProfessionalInterest/Pages/OPCEDAW.aspx.

[6]Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women, UN WOMEN, https://www.un.org/womenwatch/daw/cedaw/protocol/.

[7]Core Concepts, CEDAW SOUTH ASIA, http://cedawsouthasia.org/about-cedaw/core-concepts/.

[8]ARRIS DORSEY &READALE COLLIER, ORIGINS OF SOCIOLOGICAL THOUGHT 156-57 (2018).

[9]Lowen, Linda.,Why won’t the U.S. ratify the CEDAW Human Rights Treaty?, THOUGHTCO, (Feb. 11, 2020), https://www.thoughtco.com/why-wont-u-s-ratify-cedaw-3533824#citation-1.

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Author

Shuvedha Subramaniam
Student - SASTRA Deemed to be University