International Protection of Women's Rights

Prof. Rebecca Cook

From the Spring/Summer 2006 issue of Nexus.

International human rights law regarding women is evolving through four overlapping phases. The phases are fluid, responding to the dynamics of women's lives and the human rights abuses they face. Each phase centers on a particular international treaty or group of treaties, which provides opportunities for debate and dialogue on particular forms of violations of women's rights. Each treaty or group of treaties has its own network of interested actors who work for, or against, treaty implementation.

During the first phase of development of human rights law relating to women, states focus on the promotion of specific legal rights of women through the negotiation of a specialized treaty, for instance concerning employment, trafficking in persons, and violence against women. New international and regional conventions emerge, such as the 2000 Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime.

During the second phase of development, states include sex as a legally prohibited ground of discrimination. This prohibition is included in the Universal Declaration of Human Rights and the international and regional human rights treaties designed to give legal effect to the Declaration. The third phase of development seeks to remedy the pervasive and structural nature of violations of women's rights, principally through the effective application of the Convention on the Elimination of All Forms of Discrimination against Women (the CEDAW Convention), now ratified by 182 countries, including Canada.

The elimnation of all forms of discrimination includes eliminating gender discrimination, meaning socially constructed discrimination, in contrast to sex discrimination, meaning exclusion on biological grounds, such as the exclusion of women from work on grounds of pregnancy. More recently, as insights are gained into the intersections of different forms of discrimination, the reference to all forms of discrimination has been interpreted to mean multiple and compounding forms of discrimination, such as on grounds of sex and race, or sex and age discrimination. The content and meaning of the CEDAW Convention evolve as the Committee on the Elimination of Discrimination against Women (the CEDAW Committee) applies the Convention to specific forms of discrimination, and develops General Recommendations to guide countries submitting their periodic reports that the Convention requires.

For example, the CEDAW Committee's General Recommendation on Temporary Special Measures, adopted in 2004, addresses the need to take affirmative steps to achieve women's equality in fact, or de facto equality, also referred to as substantive equality or equality of result. This Recommendation explains that such steps are time-limited positive measures aimed to improve the position of women, and encourages states to adopt them to accelerate the participation of women in political, economic, social, cultural, and civil life, and the redistribution of power and resources necessary for such participation.

The fourth phase of development seeks to integrate women's concerns into more generalized treaties such as on international trade, and, for example, the treaty establishing the International Criminal Court.

Characterizing all four phases of development of international women's rights in theory is a lack of state compliance in practice. The Preamble to the CEDAW Convention expressed the concern of States Parties that "despite these various instruments extensive discrimination against women continues to exist." A frequent tension that arises in the implementation of women's human rights involves the conflict between patriarchal religious and cultural practices and women's equality.

This tension is apparent in many of the reservations or exceptions entered by states' parties to the CEDAW Convention, which limit the reserving state's obligations under particular articles where they conflict with national religious or customary laws. Where reservations, such as those of religiously orthodox countries, concern articles that are central to the object and purpose of the Convention, there is doubt as to whether those states can legally be considered parties at all. Such a conflict could exist where the reservation protects the continuation of practices that are premised upon and reinforce women's inequality.

The tension between implementing women's human rights on the one hand, and preserving patriarchal religious and cultural practices on the other, is also apparent in states parties that have not entered explicit reservations on the issue. In countries such as Canada, which constitutionally guarantee freedom of religion as well as a commitment to multiculturalism, governments may be reluctant or uncertain about implementing policies to enhance women's enjoyment of their human rights where such enjoyment conflicts with the beliefs of certain religious and ethnic groups. This is apparent in Canadian debates on the application of Shari'a in arbitration concerning family matters, and in debates around whether or not polygyny (marriage of one man to several wives) should be legalized pursuant to the right to freedom of religion.

While several international human rights conventions recognize the right to freedom of religion, as well as the right not to suffer discrimination on the basis of one's religious beliefs or culture, it is generally recognized that these rights do not extend so far as to condone religious or cultural practices that violate the rights of others. In accordance with this consideration, some states, such as South Africa, provide that the constitutional guarantee of gender equality will prevail in the event of a conflict with customary norms, where customary norms contravene gender equality. Another view laments the dichotomous thinking inherent in characterizing the right to freedom of religion as continually contrary to women's rights, and seeks to develop common ground through scholarly engagement with religious and customary norms that can benefit women's equality.

Explanations abound on why states do not comply with their obligations to respect and protect the human rights of women. One is that human rights do not resonate with women, especially those who are not empowered or accustomed to hold their states or nonstate actors accountable for neglect of their rights. Some governmental officials perceive that there is little political advantage to be gained by protecting the human rights of women, and still others think political power might be lost by doing so. In contrast to the realistic school of international law is a more liberal school that argues that governments comply with international law out of a sense of moral obligation and justice, rather than simply out of self-interest.

A further explanation for states' lack of conformity with the CEDAW obligations to which they claim to subscribe is that reporting requirements do not provide sufficient incentives or rewards for compliance. States are obligated to report on a periodic basis on what they have done to bring their laws, policies and practices into compliance with the Convention. The CEDAW Committee makes note, in its Concluding Observations on each state report, of instances or patterns of non-compliance, but has the power only of persuasion to ensure compliance.

The reporting requirement has now been strengthened by the adoption in 1999 of the Optional Protocol to the Convention (the CEDAW Protocol), and its ratification by 78 states, including Canada. The CEDAW Protocol allows individuals from States Parties to the CEDAW Convention that have ratified its Protocol to bring a communication in the form of a complaint to the CEDAW Committee, in order to seek redress for alleged violations of specific rights set forth in the Convention.

The Protocol also allows the Committee to undertake inquiries when it receives reliable information indicating grave or systematic violations of a right protected in the Convention by a State Party. Unlike the complaints procedure, the inquiry procedure authorizes the Committee to examine patterns of offending conduct culminating in grave or systematic violations, rather than providing specific redress for individuals.

One of the CEDAW Protocol's greatest potentials lies in the ability it opens to apply the principles of the Convention to specific abuses affecting women, thereby developing the normative content of these principles. Moreover, the Protocol will provide women with a means of applying rights in areas that have not been sufficiently protected by other human rights conventions or by domestic law. Although the Committee cannot enforce its own recommendations under the Protocol, the fact that many states have agreed to submit their policies and practices to Committee scrutiny and have expressed an intention to follow its recommendations made under the Protocol, suggests that they continue to view the norms of the Convention as legitimate international legal obligations. Canadian courts of authority have declared that, in interpreting domestic laws, they will presume that governments intend to conform to, and not violate, international legal obligations.

The CEDAW Protocol provides incentives for governments to reform discriminatory laws and practices, and to provide more effective avenues of redress for women at the domestic level. Individuals seeking redress must exhaust all reasonably available domestic remedies before the CEDAW Committee will admit their complaints. The author of a complaint must therefore make use of all available judicial and administrative avenues offering a reasonable prospect of redress. No obligation exists, however, for a complainant to pursue remedies that are neither adequate nor effective. An important contribution of this Protocol is to encourage states to ensure that domestic remedies are available to and effective for women.

Beyond the formal procedures of enforcement of international human rights conventions relating to women are the less formal ways in which international human rights law influences or binds domestic practice with regard to women. Increasingly, judges in Canada, Australia, India, and, for example, Costa Rica, are using the CEDAW Convention as persuasive authority to concretize human rights or constitutional meanings favourable to women's equality. Most promisingly, international human rights law is increasingly used as a reference point to question the legitimacy of governments that do not take steps to eliminate discrimination against women. In other words, international human rights law is beginning to change the nature of the debate about women, and to shift the burden onto governments to justify why they are not doing more to ensure women's equality and dignity.