Athena Nguyen is a doctoral candidate at the Faculty of Law, Monash University. She has previously worked at Amnesty International, the Victorian Equal Opportunity and Human Rights Commission, and the UN Office of the High Commissioner for Human Rights.
Volume 30, May 2014
The adoption of the Convention on the Elimination of All Forms Of Discrimination Against Women (CEDAW) by the United Nations (UN) General Assembly in 1979 was a significant achievement in enshrining women’s human rights into international law. To date, CEDAW continues to be the only international human rights instrument to specifically address the human rights of women. These rights include, inter alia, the obligation to end discrimination against women in any legislative or judicial form, public institutions, social or cultural practices, public or political life, nationality, education, employment, health care, trafficking and prostitution, rural life, legal capacity, and in marriage and family relations. In 1999, the Convention was further strengthened by the adoption of the Optional Protocol to CEDAW (OP CEDAW). The adoption of the OP CEDAW was received with much enthusiasm as it enabled women, for the first time, to submit a communication to the CEDAW Committee about a violation of their CEDAW rights and to seek redress at an international level. Whilst some of this enthusiasm has since been dampened by the significant number of communications that have been declared inadmissible (e.g. Sullivan) and by criticisms about the progressiveness of the Committee’s views (e.g. Murdoch), the CEDAW Committee has nonetheless issued a number of important decisions on areas such as violence against women, reproductive health and gender stereotyping. The views issued by the CEDAW Committee have contributed to developing the international law on women’s human rights and to the understanding of what is required by States to fulfil their CEDAW obligations. In this paper, the jurisprudence of the CEDAW Committee’s views will be examined. The term ‘jurisprudence’ in this paper will be used to ‘refer to the interpretations of the law given by a court’ (Ratnapala 3). Although the CEDAW Committee may only be a quasi-judicial body, its interpretations of CEDAW have nonetheless been regarded as authoritative. Furthermore, the views of UN treaty bodies are commonly referred to as ‘jurisprudence’ within the study of international law (e.g. United Nations; Council of Europe; Byrnes and Bath 518; Isa 320). In this paper, the question will be asked, have the views of the CEDAW Committee been cautious or progressive? Consistent or inconsistent? Commendable or regrettable? This paper will demonstrate that in cases involving severe human rights violations, such as violence, rape or death, the CEDAW Committee has been strong in its views and has incorporated a good analysis of how gender has contributed to these violations. However, for matters in which the discrimination has not been as direct or the consequences have not been as severe, the Committee has not undertaken the more nuanced analysis that is needed to draw out the human rights violations that have occurred. Hence, whilst the CEDAW Committee has commendably advanced the international law on women’s human rights in some areas, it has also been reluctant and slow to do so in others.
The communications procedure established by the OP CEDAW provides an opportunity for women to lodge a complaint to the CEDAW Committee if they believe that their rights under CEDAW have been violated. Whilst the communication procedure is accessible to all women, complaints may only be lodged against a State that is a party to the OP CEDAW. Currently, 104 States are a party to the OP CEDAW. If the communication fulfils the admissibility criteria, such as the exhaustion of domestic remedies and that the violation occurred or continued after the OP CEDAW came into force, then the merits of the communication will be considered. Through a series of written communications with the author1 of the complaint and the accused State, the CEDAW Committee will determine whether or not the State has failed to fulfil its obligations under CEDAW. If a violation is found, the CEDAW Committee will provide recommendations to the State of actions that it may take to remedy the situation. This may include both remedies for the individual victim as well as structural or systemic changes that the State may implement to prevent the reoccurrence of this violation in the future. The views issued by the CEDAW Committee also contribute to building the jurisprudence on women’s human rights in international law by expanding on or explaining what is required of States to fulfil their obligations under CEDAW.
A decade has passed since the adoption of the OP CEDAW. To date, 41 communications have been registered and 24 views have been issued. Of these, 11 communications have been declared inadmissible and 13 communications have been considered on their merits. Of the communications considered on their merits, the Committee has found breaches of CEDAW in 12 communications. In considering the communications that have been submitted to it, the decision-making process of the CEDAW Committee has involved not only the examination of the merits of the case but also the interpretation and application of the articles within CEDAW. The interpretation of treaties has been a subject of much scholarly debate and is beyond the scope of this paper. However, progressive writers in the area have characterised the interpretation of treaties as ‘an active process of constructing a meaning rather than finding the meaning which lies latent within the text’ (Tobin 5). Hence, if the interpretation of treaties involves, at least to some extent, a construction of its meaning, then it is important that these constructions of meaning are principled, practical, coherent in their reasoning, and sensitive to the socio-political context (Tobin 14). In regard to the interpretation of CEDAW, the ‘general and far-reaching language’ of its provisions has provided the Committee with the opportunity to be creative and progressive in their interpretation and application of the Convention (Murdoch 33). At times, the CEDAW Committee has taken advantage of this opportunity and has progressively interpreted the Convention to further women’s human rights. This has been particularly the case in communications involving family violence, reproductive rights and gender stereotyping. At other times, the CEDAW Committee has missed opportunities to protect women’s human rights and has issued views that have not taken the bolder gender analysis required to make the finding that a human rights violation has occurred, such as in the case of indirect discrimination or intersectional discrimination. This paper will begin by examining the areas in which the CEDAW Committee has taken the opportunity to progress women’s human rights, before discussing the areas in which the Committee has missed these opportunities.
The most extensive jurisprudence developed by the CEDAW Committee has been in the area of family violence and due diligence. This involves the obligation on States to 'protect, respect and remedy' human rights, which is: to protect human rights by preventing human rights violations; to respect human rights by not undertaking actions that breach human rights; and to provide remedy for human rights violations. The concept of due diligence has been essential to advancing the protection of women from family violence within a human rights framework. The obligation on States to exercise due diligence has been articulated in article 4(c) of the Declaration on the Elimination of Violence Against Women (DEVAW) and repeated in article 125(b) of the Beijing Platform for Action. These non-binding yet authoritative agreements call on governments to ‘exercise due diligence to prevent, investigate and, in accordance with national legislation, punish acts of violence against women, whether those acts are perpetrated by the State or by private persons’. The concept of due diligence has also been developed in regional and international case law. The concept of due diligence was first established in the landmark decision of the Inter-American Court of Human Rights, Velásquez Rodríguez v. Honduras ((Ser. C) No. 4 (1988)), which held that an ‘illegal act which violates human rights... [by] a private person... can lead to international responsibility of the State, not because of the act itself, but because of the lack of due diligence to prevent the violation or to respond to it as required by the Convention’. The case law, as well as state practice and opinio juris (the belief that a particular act is a legal obligation), has supported the assertion by the UN Special Rapporteur on Violence Against Women that there now exists a rule of customary international law that obligates States to act with due diligence to address violence against women (Ertürk 29).
Most of the communications to the CEDAW Committee on family violence have been successful. As violence against women is not expressly prohibited in CEDAW, the Committee’s decisions have relied upon General Recommendation No. 19 which defines ‘discrimination’ as including gender-based violence. The Recommendation also reiterates that States may be held accountable for private acts if they fail to exercise due diligence. In AT v. Hungary, a matter in which the author suffered seven years of family violence, the Committee affirmed for the first time within an international quasi-judicial setting that the provisions within articles 2(a), (b) and (e) (the obligation to embody the principle of equality between men and women in the law and to take all measures to eliminate discrimination) extend to include the prevention of violence against women and that a failure to do so constitutes a human rights violation. Referring to General Recommendation No. 21, the Committee also recognised that ‘traditional attitudes by which women are regarded as subordinate to men contribute to violence against them’ and found violations of article 5(a) (the obligation to modify gender stereotyped roles) and article 16 (equality in family life).
The second communication before the Committee on family violence was Goekce v. Austria and was a matter that involved the murder of a woman by her partner. In Goekce, it was further clarified that the prosecution of perpetrators alone is not sufficient to fulfil State obligations. Hence, it may be argued that General Recommendation No. 19 should be read as due diligence entailing both the prevention of violations and the punishment of perpetrators (and not ‘or’ as written). In Goekce, the Committee also elaborated on the phrase ‘practical realization’ contained in article 2(a) (embodying the principle of equality between men and women in the law) and found that a comprehensive legal system must be accompanied by a commitment to action. In addition, the Committee found violations of article 1 (legal protection of women’s rights), article 2(c)(discrimination against women), and article 3 (measures to ensure the advancement of women). In contrast to AT v. Hungary, however, the Committee held that article 5(a) (gender stereotypes) need not be considered. Hence, this created an inconsistency with the Committee’s previous decision in AT v. Hungary.
The view rendered in Goekce v. Austria also started to define the ‘elements’ of due diligence. The first was a ‘mental element’ in which the police ‘knew or should have known’ of the seriousness of the situation on account of the long record of earlier disturbances and battering. The second was a ‘physical element’ which consisted of a lack of timely response. In this case, the omission involved the failure of the police to respond to an emergency phone call made by Goekce on the night of her death. No patrol car was sent to investigate the phone call until the perpetrator surrendered himself to the police two-and-a-half hours after her death. These ‘elements’ of due diligence were elaborated slightly in Yildirim v. Austria to include the Austrian authorities and the Public Prosecutor among those who ‘knew or should have known’.
The abuse and death of women at the hands of their intimate partners has clearly been established as a violation of the rights enshrined in CEDAW. The precise article in CEDAW that is violated, however, continues to be difficult to predict (Murdoch 39). For example, the Committee has found violations of different sections of article 2 among similar cases, and has found violations of article 1, 3 and 5 in some cases but not others. Part of the issue may be that no provision in CEDAW specifically addresses family violence. Instead, the Committee has had to interpret the general provisions in CEDAW as applying to family violence. Despite this challenge, it is important that the views issued contain some coherent reasoning (Tobin 5) and criticism has been made that ‘it is difficult to discern any rationale for the contrasting approaches in communications in which the material facts are not dissimilar’ (Murdoch 39).
Regardless of these criticisms, the Committee’s views have contributed to the understanding of due diligence and State obligations in regard to family violence. The views rendered have been useful for addressing one of the main limitations of due diligence which has been the ‘lack of clarity concerning its scope and content’ (Ertürk 15). This has included the contribution of the CEDAW Committee to clarifying both the knowledge that the State should have had about the threat that the family violence posed and the actions that the State should have taken.
In the communications on family violence, the CEDAW Committee has also been with faced the challenge of balancing ‘competing’ human rights. Despite the Vienna Declaration and Programme of Action reasserting that all human rights must be treated ‘in a fair and equal manner, on the same footing, and with the same emphasis’, there has been a long history of viewing human rights in a hierarchical manner (Shelton). For example, tensions have long been present between ‘civil and political rights’ and ‘economic and social rights’ (e.g. Sen). Other hierarchies have been constructed based on which human rights are most respected by States and enjoy the fewest reservations; which human rights do or do not also constitute ‘international crimes’ if violated; and which human rights are considered absolute and non-derogable (rights that cannot be suspended or limited)(e.g. Shelton 310-313; Meron 20). On the other hand, feminist legal scholars have analysed how the development of human rights has been influenced by an implicit ‘male actor’ as the subject and bearer of human rights (e.g. Charlesworth; Bunch). Feminist legal scholars have demonstrated how this has produced an international human rights regime which has prioritised the activities of the public sphere (which has traditionally been the domain of men) and has been concerned violations committed by the State (which has traditionally been the source of authority which men fear)(Bunch 13). For example, the right to life has traditionally been interpreted as freedom from the arbitrary deprivation of life in the public sphere by State actors, such as through the death penalty (Bateup). For women, however, the main incidences of the arbitrary deprivation of life occur within the private sphere at the hands of men with whom they are familiar. The World Health Organisation has reported that up to 70% of female murder victims are killed by their male partners and Amnesty International (In Our Hands, 30) has documented that thousands of women are murdered by male relatives through ‘honour killings’ every year. In addition, sex-selective abortions and female infanticides have resulted in more than an estimated 60 million women ‘missing’ from the world today (Radford & Russell).
In its deliberations, the Committee has had to manage claims of competing rights between the victim and the perpetrator. In Goekce v. Austria, for example, the State Party argued that although the death of the victim was ‘extremely tragic’, the ‘detention [of the man] must be weighed against an alleged perpetrator’s right to personal freedom and a fair trial’. The State Party argued that that the deprivation of freedom ‘would reverse the burden of proof and be in strong contradiction with the principles of the presumption of innocence and the right to a fair hearing’. Despite these arguments, the Committee held that women’s right to life is not to be superseded by the perpetrator’s right to freedom of movement or right to a fair trial. This was subsequently affirmed in Yildirim v. Austria. In AT v. Hungary, the Committee also found that ‘[w]omen’s human rights to life and to physical and mental integrity cannot be superseded by other rights, including the right to property and the right to privacy’. It must be noted that the Committee did not find that detention is necessary in all cases of family violence but that preventive detention is not disproportionate in situations of high levels of violence which have persisted over long periods of time (Byrnes and Bath 524).
Whilst the Committee’s view on detention has been criticised (Murdoch 43), the Committee is in the unique position of being able to ‘prioritise’ human rights from women’s perspective. In determining the conflict between women’s rights to life and freedom from violence, and men’s rights to freedom of movement, privacy, property or a fair trial, the Committee has made the correct decision in ‘rebalancing’ these rights and has made an important statement on the value that should be accorded to the human rights of women.
The CEDAW Committee has also issued strong views on cases involving violations of women’s reproductive rights. For example, in AS v. Hungary, a Hungarian Roma woman was admitted to hospital to have a caesarean to remove a dead foetus. Whilst on the operating table, the author was asked to sign a handwritten note by the doctor consenting to her sterilisation. The author claims to have been bleeding heavily at the time, to have been in a state of dizziness and shock, and to have not understood the Latin term for ‘sterilisation’ that was used on the form. The Committee made a finding in favour of the author and held that the State Party had violated article 10(h) (right to health information), article 12 (access to health services) and article 16 (right to family planning).
The case of AS is not an isolated incident but is one example of the broader human rights violations and ‘cycle of discrimination, poverty and exclusion’ faced by Romani communities in Europe (Amnesty International, Europe). The forced sterilisation of Roma women has been reported across Eastern Europe with the estimated numbers varying from several hundred to several thousand (Tomasovic 767). Dozens of domestic proceedings have been lodged but few have been resolved in favour of the victim (Tomasovic 768). Whilst laws against forced sterilisation exist, it is barriers such as discrimination and disempowerment that have prevented women from obtaining justice at a domestic level. Hence, the communication procedure of the OP CEDAW has been seen as one of the ‘best option[s] for obtaining individual compensation’ for Roma women (Tomasovic 769).
In AS v. Hungary, the Committee developed the jurisprudence on the right to health and, in particular, the right to information and consent. The Committee found a violation by the State Party, through the hospital personnel, of article 10(h) which provides for ‘access to specific educational information to help to ensure the health and well being of families, including information and advice on family planning’. The Committee’s view extended the right in article 10(h) to include not only the provision of information but that the information must also be provided under appropriate conditions in which women can understand the information.
The Committee’s views also elaborated on the elements that need to be met to achieve informed consent. Informed consent has been defined in the literature as ‘the principle that every competent individual of legal age has a right to determine her medical treatment and what is done to her body’ (Costello 993, referring to American Jurisprudence 2d 2002 (61), 157). The Committee developed four ‘elements’ of informed consent which were: the provision of information and counselling; the provision of information on alternatives, risks and benefits; the ability to consider the information; and the obtaining of consent that was voluntary. In AS v. Hungary, the Committee found that the author’s informed consent had not been obtained and that the State Party had violated article 12 (right to access health services). In addition, the Committee also found violations of article 16 (the right to decide the number and spacing of children) due to the consequences of the forced sterilisation. The positive decision rendered by the CEDAW Committee in AS v. Hungary has inspired optimism among women’s rights activists and has upheld expectations of the OP CEDAW as being the ‘most promising option for redress’ for women who have been denied justice at a domestic level (Tomasovic 809).
The CEDAW Committee has also made a progressive ruling in the case of LC v. Peru. In this matter, a 13 year old girl was repeatedly raped by a 34 year old man and when she became pregnant she attempted to commit suicide by jumping off a building. However, she survived the fall and required emergency surgery. Upon discovering that she was pregnant, the doctor refused to perform the surgery due to the risk of harming the foetus. An abortion was requested but it was also refused. LC later miscarried and was finally allowed to undergo the surgery three and a half months after the emergency surgery was recommended. LC is now paralysed from the neck down.
In its determination, the Committee recalled its General Recommendation No. 24 which provides that ‘it is discriminatory for a State party to refuse to legally provide for the performance of certain reproductive health services for women’. In addition, the Recommendation provides that States have the responsibility to ensure that legislative and executive action is taken to uphold women’s right to health care. The Committee raised concern about the ‘legal vacuum’ that surrounded the issue of therapeutic abortion in Peru and stated that ‘since the State party has legalized therapeutic abortion, it must establish an appropriate legal framework that allows women to exercise their right to it under conditions that guarantee the necessary legal security… It is essential for this legal framework to include a mechanism for rapid decision-making, with a view to limiting to the extent possible risks to the health of the pregnant mother, that her opinion be taken into account, that the decision be well-founded and that there is a right to appeal’. The Committee found that LC did not have access to any proper processes to allow her to establish her need for these medical services and that, therefore, her right to health (article 12) had been violated.
In addition, the Committee also found a violation of article 5 which enshrines the obligation of States to eliminate prejudices based on gender stereotyped roles. The Committee found that ‘the decision to postpone the surgery due to the pregnancy was influenced by the stereotype that protection of the foetus should prevail over the health of the mother’. The State’s actions implied that women’s role as child bearers was of greater value than women’s ability to perform any other role in society, as the postponement of the surgery, which resulted in LC’s near complete paralysis, has meant that value and potential of LC’s life in any other way except for bringing a foetus to term has been severely restricted. Therefore, in this matter the CEDAW Committee has been able to move beyond the more obvious violation of the right to health to also recognise the effect of gender-stereotyping on women’s human rights.
Another area in which the CEDAW Committee has issued progressive views is in respect to the role of gender stereotyping. As discussed, the role of gender stereotyping has been considered by the Committee in LC v. Peru. The CEDAW Committee has also made a number of other findings in which gender stereotyping resulted in the violation of women’s human rights. For example, in Vertido v. The Philippines, the Committee considered the case of a woman who was raped by her employer and the ensuing unsuccessful court battles which lasted for eight years. The author’s complaint to the Committee concerned the gender stereotypes and ‘rape myths’ that had been invoked in the courtroom which she alleged resulted in an unfair trial. These myths included that: a victim’s failure to make an attempt to escape renders questionable that the act was rape; women who were not timid or easily cowed were less likely to be raped; a direct threat must exist for rape to occur (in this case, whether there was or was not a gun present); a sex act is less likely to be coercive if the victim and perpetrator were familiar with each other; and a perpetrator who did not ejaculate during the act and was aged in his sixties cannot have committed rape.
Gender stereotypes about women’s sexuality and rape have long pervaded rape trials (Goldenberg-Ambrose). These rape myths have been defined as ‘attitudes and generally false beliefs about rape that are widely and persistently held, and that served to deny and justify male sexual aggression against women’ (Lonsway & Fitzgerald 133). Such beliefs have been demonstrated to influence the judicial process by affecting the instructions given to the jury, the opinions and decision-making of jury members, and the attitude of judges (Torrey 1045-1057). As such, ‘rape myths’ and gender stereotypes may affect the right of women to a fair trial and serve to undermine the integrity of the legal system (Torrey 1057).
In this case, the Committee took issue with a number of beliefs that had influenced the decision-making process in the courtroom. These beliefs included that: accusations of rape are easily made by women; the ‘ideal victim’ responds in a particular way including through physical resistance and making every possible attempt to escape; any type of relationship between the author and the accused decreases the probability that the act was non-consensual; and stereotypes about male and female sexuality. The Committee stressed that a lack of physical resistance was not an indication of consent and that, in the author’s case, the gravitation between resistance and submission should not affect the credibility of the author’s testimony. The Committee held that ‘stereotyping affects women’s right to a fair and just trial’ and found violations of articles 2(c)(the legal protection of women’s rights), article 2(f)(measures to abolish existing laws that discriminate against women) and article 5(a)(the obligation to modify gender stereotyped roles).
The myths surrounding women and rape have been a form of discrimination that the women’s movement has long battled. The Committee should be commended for boldly addressing this issue and setting a standard of what is and is not acceptable in the trial of rape cases. This decision at an international level not only fares well for future communications that may be submitted to the Committee but will hopefully also be drawn upon by other human rights treaty bodies and judicial bodies in their determination of cases in which gender stereotypes may affect women’s rights to a fair trial.
Although the CEDAW Committee has made significant progress in protecting women’s human rights, the Committee has also missed a number of opportunities that have been presented to it. The Committee has particularly struggled to make a positive finding of sex-based discrimination in communications which have involved multiple and overlapping forms of discrimination. From its views, it appears that the Committee has found it challenging to disentangle the causes and effects of intersectional discrimination, in which the discrimination experienced may have been based on multiple attributes (e.g. sex, age, class, race). One example is in Kayhan v. Turkey in which the author was dismissed from her teaching appointment at a state high school for wearing a headscarf. The CEDAW Committee declared this matter to be inadmissible as the author had failed to raise sex-based discrimination in the domestic proceedings that she had undertaken before submitting her complaint to the CEDAW Committee. Instead, her domestic proceedings had raised the right to freedom of work, religion and thought; the prohibition against discrimination; and the right to physical and spiritual well-being. In this case, the Committee has been criticised for being ‘particularly harsh’ for dismissing the communication (Murdoch 34). Many women who face double discrimination may find it difficult to determine the precise origin of the unfavourable treatment (i.e. gender or religion) and the author herself may have been unsure of the exact cause (Facio 42). In addition, those that perpetrate discriminatory acts may not have based their actions simply on gender or religion. Instead, the treatment was likely based on the author’s overall status as a ‘Muslim woman’. Therefore, the Committee should have been more sensitive to the difficulties of disentangling the effects of double discrimination rather than being strict in their application of article 4(1)(exhaustion of domestic remedies).
In another communication, Zheng v. The Netherlands, the author was a victim of child trafficking and had been held in sexual and domestic slavery in the Netherlands. The Committee found that the author had not raised article 6 (traffic in women) in her domestic proceedings which she was now raising in her communication. Hence, the communication was declared inadmissible. In addition, the State Party argued that her asylum request could not be substantiated as she was unable to provide much information on her identity, her family, her journey to the Netherlands or where she resided upon arrival.
In this case, the author may have been subject to multiple forms of discrimination based on different attributions such as sex, the age of minority, and severe socio-economic deprivation including illiteracy. In addition, the reality of many trafficking victims is that they may not know the details of their journey, the location of their captivity, or the identity of their traffickers (Farr). Having also been orphaned as a child, it should have been expected that the author was unable to provide details about her family or background.
In the dissenting opinion, three members reminded the rest of the Committee that the purpose of the OP CEDAW is to enable women ‘to obtain the benefit of the law as intended and to take remedial action’ when domestic procedures have failed them. A more gender-sensitive approach by the majority would have taken into account that sex trafficking is a gendered crime which largely targets women and children (Fergus 8-9). The Committee could have also recognised that trafficking victims face major obstacles in obtaining justice. Although the dissenting members did find that ‘the author’s allegations... have been sufficiently substantiated for the purposes of admissibility, and we declare them admissible’, unfortunately this declaration of admissibility and the remedies suggested are of lesser authority.
In more recent times, however, the CEDAW Committee has started to recognise the complexities around intersectional discrimination and the difficulties of disentangling the overlapping effects of different forms of discrimination. For example, in da Silva Pimentel v. Brazil, which concerned the death of an African woman who was left in a hospital corridor in Brazil for 8 hours, and in Kell v. Canada, which concerned the removal of property from an Indigenous woman, the CEDAW Committee has issued views in favour of the authors and has found violations of the rights enshrined in CEDAW. Hence, the CEDAW Committee has demonstrated that it is moving towards being able to undertake the more nuanced analyses that is required in cases of intersectional discrimination and to understanding how sex-based discrimination may exist alongside and in addition to other forms of discrimination.
Another area in which the CEDAW Committee has struggled has been in recognising the difference between direct and indirect discrimination. Cases of direct discrimination are relatively straightforward and may be determined by asking whether the victim has been treated in an unfavourable way, in part or in whole, because of a protected characteristic such as sex (Forshaw 348). On the other hand, establishing indirect discrimination can be more complex. Indirect sex discrimination has been defined in a law passed by the European Union as ‘an apparently neutral provision, criterion or practice [that] would put persons of one sex at a particular disadvantage compared with persons of the other sex’ unless this consequence is justified by a legitimate aim (Council Directive 2004/113/EC). Hence, indirect sex discrimination recognises that the same treatment, rule or standard may have different and unequal effects on men and women (Forshaw 351).
In the views issued by the CEDAW Committee, it has often been left to the dissenting member(s) to adopt an approach which has incorporated an understanding of the difference between direct and indirect discrimination. In Nguyen v. The Netherlands, for example, the author was working in two part-time positions and was making payments under separate insurance schemes with respect to each job. She applied for maternity leave under both insurance schemes and was denied payment under one scheme due to an ‘anti-accumulation clause’. The majority opinion held that the discrimination she experienced was not based on her sex but on her dual employment status and, hence, a violation of CEDAW was not found. The dissenting opinion, whilst agreeing that no direct discrimination had occurred, held that the author had been a victim of indirect discrimination. The dissenting opinion referred to the State Party’s fourth report which stated that most part-time workers in the Netherlands were women. Compared to full-time employees, part-time workers are more likely to be employed in more than one position at the one time. Hence, a clause that discriminates against dual employment status will disproportionately affect women, thus amounting to indirect discrimination.
The dissenting opinion provided a similar analysis in regard to indirect discrimination in GD and SF v. France. The authors of this communication alleged that they had experienced discrimination from being legally unable to take on their mother’s family name. The majority opinion held that the children had not proven sex based discrimination as the law regarding the transmission of the father’s surname applied equally to male and female children, that is, the children had not been treated differently (i.e. discriminated against) because of their sex. As such, the communication was declared inadmissible. The dissenting opinion disputed this and held that the children were ‘indirect victims of discriminatory legislation based on the patriarchal view of fathers as heads of family imposed by the State’. The dissenting view pointed out that the ‘apparently gender-neutral rule’ was in fact based upon a hierarchical differentiation between the genders, thereby resulting in indirect discrimination. Similar to Nguyen, a more nuanced analysis that incorporated the concept of indirect discrimination was required to understand how gender discrimination was present in this case.
The concept of indirect discrimination is also applicable to Kayhan v. Turkey in which, as discussed, the author was dismissed from her workplace for wearing a headscarf. In this matter, the State Party argued that the regulations on workplace attire ‘applies to male and female civil servants and both sexes face the same disciplinary and legal actions... there is no element of the regulation... that constitutes discrimination against women’. However, the headscarf is worn exclusively by women and any regulation which affects the wearing of the headscarf will have a disproportionate impact on women. As such, the unequal consequences of applying this seemingly gender-neutral rule would constitute indirect discrimination.
The distinction between direct and indirect discrimination is well established in the law of many domestic and regional jurisdictions (e.g. Bell; Australian Human Rights Commission). The dissenting views issued have been consistent with the generally accepted understanding of indirect discrimination. It has been disappointing, however, that this approach has not been evident in the majority views. The purpose of CEDAW is to eliminate discrimination against women and this should involve addressing both direct and indirect discrimination. Hence, the majority opinion should have incorporated an understanding of indirect discrimination into their disposal of communications. Hopefully, the repeated reminder to the Committee by its dissenting members will positively influence the majority opinion in the future on matters in which indirect discrimination has occurred.
A number of significant views have been issued by the CEDAW Committee. These views have progressed the jurisprudence on women’s human rights in international law and have further clarified the human rights protections to which women are entitled. In regard to international law, however, the OP CEDAW is still a relatively new treaty. Hence, the full potential of the OP CEDAW has yet to be realised. The communications considered by the Committee have yet to cover the breadth or depth of human rights violations faced by women and only a few communications have gone ‘to the very heart of key fundamental equalities’ (Murdoch 41). Thirteen communications are still pending which, when considered, may significantly expand the jurisprudence developed by the CEDAW Committee. In addition, the communications pending will also subject some State Parties to the CEDAW communication procedure for the first time, such as Spain, Bulgaria, Denmark, the Philippines, and the UK.
When the views issued by the CEDAW Committee are considered in a chronological order, it is evident that the Committee’s views have become more and more progressive over time. The Committee’s strongest views, however, have been confined to ‘safe’ issues which have already been addressed extensively by the women’s movement, such as family violence, sexual violence and reproductive rights. It appears that in matters in which the human rights violations have not been as severe that the Committee has, at times, struggled to identify the discrimination that has been experienced. This has been seen, for example, in cases involving indirect discrimination or intersectional discrimination. However, the intention of CEDAW is to eliminate all forms of discrimination against women, including both direct and indirect discrimination as well as the myriad of ways in which discrimination based on gender can intersect with discrimination based on race, culture, age, religion, sexual orientation, or other characteristics. In these regards, the work of the CEDAW Committee may be enhanced by drawing upon the extensive feminist legal scholarship that exists on women’s human rights and which provides thorough and critical analyses of the influence of gender on the realisation of human rights for women (e.g. Peters & Wolper; Cook; Knop). By drawing on the feminist legal scholarship that already exists, some of the issues experienced in the Committee’s previous views, such as the difficulty of identifying indirect discrimination, may be less likely to arise. Thus, the CEDAW Committee needs to be encouraged to continue to become more progressive in its interpretation and application of the Convention and in the views that it issues in its communications procedure. Nonetheless, the views issued by the CEDAW Committee have been invaluable for advancing women’s human rights and much potential exists in the future for the CEDAW Committee to further build upon the jurisprudence that it has already developed.
1. Due to the quasi-judicial nature of the CEDAW Committee, 'author' is the applicable term (rather than 'applicant' as used in judicial contexts).
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