IHR

INTERNATIONAL HUMAN RIGHTS PROJECT

ON

INTERNATIONAL CONVENTION ON ELIMINATION OF ALL

FORMS OF DISCRIMINATION AGAINST WOMEN, 1979

SUBMITTED TO : SUBMITTED BY :

MS. SHALU, NUPUR WALIA

FACULTY, SEMESTER 9

UILS, PU SECTION A

38/10

INTERNATIONAL HUMAN RIGHTS || 9TH SEMESTER PAGE 2

TABLE OF CONTENTS

1. ACKNOWLEDGMENT

2. INTRODUCTION

3. HISTORY OF CEDAW

4. OVERVIEW OF THE CONVENTION

5. INDIA AND CEDAW

6. INITIATIVE BY THE INDIAN JUDICIARY

7. SHORTCOMINGS OF THE CONVENTION :

A) WEAK ENFORCEMENT MECHANISMS

B) RESERVATIONS

8. CONCLUSION

9. BIBLIOGRAPHY


ACKNOWLEDGMENT FIRST OF ALL, I WOULD LIKE TO THANK MY SUBJECT TEACHER MS. SHALU FOR

GIVING ME THIS PROJECT AND HELPING ME THROUGH THE COMPLETION OF IT, BY

GIVING TACTFUL OUTLINES. I HAVE LEARNT A LOT THROUGH HER LECTURES. I

WOULD ALSO THANK OUR LIBRARY STAFF FOR PROVIDING ME WITH RESOURCEFUL

BOOKS.

ACKNOWLEDGED BY :

NUPUR WALIA

38/10


INTRODUCTION

Beyond general human rights instruments, there are a few very important specialized

treaties relating to equality and non-discrimination. The two instruments that come to mind

foremost in this regard are the International Convention on the Elimination of All Forms of

Racial Discrimination (ICERD, 1966) and the Convention on the Elimination of All Forms of

Discrimination Against Women (CEDAW, 1979), also known as the Women's Convention.

UDHR also states that all human beings are born free and equal in dignity and rights and that

everyone is entitled to all the rights and freedom set forth therein, without distinction of any

kind, including distinction based on sex.1 This project basically deals with CEDAW.2

CEDAW provides a broad definition of discrimination against women, illustrating the

point made that international law often provides broader protections than domestic law.

CEDAW expands the notion of equality for women beyond that currently embraced by most

national laws. Under CEDAW, 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 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.3

The treaty provides for women's rights in various arenas such as government and political

life, education, employment health care, and other areas of social and economic life. It also

provides for special protections for women such as "temporary special measures" to advance

women and to protect maternity. At present, there are 186 member states and 98 signatories

of CEDAW. Like all specialist treaties, the CEDAW is monitored by an expert committee

namely Committee on the Elimination of All Forms of Discrimination against Women

(hereinafter, the ‘Committee'.)4

However, the main aim of CEDAW, i.e., revamping the weak mechanism for

protection of human rights of womankind would have been hard to achieve without the

elaboration of the Optional Protocol to the Convention. The shortcomings of CEDAW could

only be rectified through the adoption of this Optional Protocol. Since 1997, the Committee

1 Brownlie Ian & Gill Guy S. Goodwin, Brownlie’s Documents on Human Rights, Oxford University Press, 6th Ed., New York, 2010, Pg 4292 Mishra Sujata, Women’s Health and Social Issues, Arise Publishers & Distributors, 1st Ed., New Delhi, 2011, pg 423 Article 1 of the Convention defines Discrimination against women4 HTTP://WWW.LAWTEACHER.NET/INTERNATIONAL-LAW/ESSAYS/AN-ANALYSIS-OF-THE-CEDAW.PHP (last visited on 13th October, 2014 at 5:42 p.m.)

http://www.lawteacher.net/international-law/essays/an-analysis-of-the-cedaw.php


has met twice a year (for a total of four weeks). An Optional Protocol was drafted in 1999 to

provide a complaint process for individuals to petition the Committee regarding violations by

states parties. The Optional Protocol entered into force in December of 2000. The Optional

Protocol also gives the Committee the power to examine grave or systematic violations by a

state party, including a visit to the state. However, the Committee must ‘invite' the

cooperation of the state with the inquiry and the state party must consent to any visit. The

inquiry must also be conducted confidentially. Although no reservations are allowed to the

Optional Protocol, states can opt out of this inquiry procedure. Currently it has 79 signatories

and 98 parties.5

HISTORY OF CEDAW 6

Equality of rights for women is a basic principle of the United Nations. The Preamble

to the Charter of the United Nations sets as one of the Organization's central goals the

reaffirmation of "faith in fundamental human rights, in the dignity and worth of the human

person, in the equal rights of men and women". Article 1 proclaims that one of the purposes

of the United Nations is to achieve international cooperation in promoting and encouraging

respect for human rights and for fundamental freedoms for all without distinction as to, inter

alia, sex. By the terms of the Charter, the first international instrument to refer specifically to

human rights and to the equal rights of men and women, all members of the United Nations

are legally bound to strive towards the full realization of all human rights and fundamental

freedoms. The status of human rights, including the goal of equality between women and

men, is thereby elevated: a matter of ethics becomes a contractual obligation of all

Governments and of the UN.

The International Bill of Human Rights strengthens and extends this emphasis on the

human rights of women. The International Covenant on Economic, Social and Cultural

Rights and the International Covenant on Civil and Political Rights, both of 1966, which

translate the principles of the Declaration into legally binding form, clearly state that the

rights set forth are applicable to all persons without distinction of any kind and, again, put

forth sex as such a ground of impermissible distinction. In addition, each Covenant

specifically binds acceding or ratifying States to undertake to ensure that women and men

have equal right to the enjoyment of all the rights they establish.

5 Supra note 46 http://www.un.org/womenwatch/daw/cedaw/ (last visited on 20th October 2014 at 6:06 p.m.)


The International Bill of Human Rights, combined with related human rights treaties,

thus lays down a comprehensive set of rights to which all persons, including women, are

entitled. However, the fact of women's humanity proved insufficient to guarantee them the

enjoyment of their internationally agreed rights. Since its establishment, the Commission on

the Status of Women (CSW) has sought to define and elaborate the general guarantees of

non-discrimination in these instruments from a gender perspective. The work of CSW has

resulted in a number of important declarations and conventions that protect and promote the

human rights of women.

Originally established in 1946 as a sub commission of the Commission on Human

Rights, but quickly granted the status of full commission as a result of the pressure exerted by

women's activists, the mandate of the CSW included the preparation of recommendations

relating to urgent problems requiring immediate attention in the field of women's rights with

the object of implementing the principle that men and women should have equal rights, and

the development of proposals to give effect to such recommendations. Between 1949 and

1959, the Commission elaborated the Convention on the Political Rights of Women, adopted

by the General Assembly on 20 December 1952, the Convention on the Nationality of

Married Women, adopted by the Assembly on 29 January 1957, the Convention on Consent

to Marriage, Minimum Age for Marriage and Registration of Marriages adopted on 7

November 1962, and the Recommendation on Consent to Marriage, Minimum Age for

Marriage and Registration of Marriages adopted on 1 November 1965. Each of these treaties

protected and promoted the rights of women in areas in which the Commission considered

such rights to be particularly vulnerable. But it was believed that, except in those areas,

women's rights were best protected and promoted by the general human rights treaties.

The text of the Convention on the Elimination of All Forms of Discrimination against

Women was prepared by working groups within the Commission during 1976 and extensive

deliberations by a working group of the Third Committee of the General Assembly from

1977 to 1979. Drafting work within the Commission was encouraged by the World Plan of

Action for the Implementation of the Objectives of the International Women's Year, adopted

by the World Conference of the International Women's Year held in Mexico City in 1975,

which called for a convention on the elimination of discrimination against women, with

effective procedures for its implementation. Work was also encouraged by the General

Assembly which had urged the Commission on the Status of Women to finish its work by


1976, so that the Convention would be completed in time for the 1980 Copenhagen mid-

decade review conference (World Conference on the United Nations Decade for Women:

Equality, Development and Peace). Although suggestions were made to delay completion of

the text for another year, the Convention on the Elimination of All Forms of Discrimination

against Women was adopted by the General Assembly in 1979 by votes of 130 to none, with

10 abstentions. In resolution 34/180, in which the General Assembly adopted the Convention,

the Assembly expressed the hope that the Convention would come into force at an early date

and requested the Secretary-General to present the text of the Convention to the mid-decade

World Conference of the United Nations Decade for Women.

At the special ceremony that took place at the Copenhagen Conference on 17 July

1980, 64 States signed the Convention and two States submitted their instruments of

ratification. On 3 September 1981, 30 days after the twentieth member State had ratified it,

the Convention entered into force - faster than any previous human rights convention had

done - thus bringing to a climax United Nations efforts to codify comprehensively

international legal standards for women.

OVERVIEW OF THE CONVENTION 7

In the first part of the CEDAW Convention, which consists of 16 articles,

discrimination is defined, and there is a list of situations or environments in which women

may be discriminated against, including in politics, the economy, labor, education and health.

The Convention's content, more than simply defining women's human rights, stresses

two concepts: equality between the sexes as a basic objective, and the necessity of

eliminating discrimination as an ultimate goal.

Over time, the concept of equality has evolved. For the theorists of the French

Revolution, equality involved two main ideas: a) equality of all citizens before the law; and

b) abolition of all privileges gained from birth, religion, or race. Now it is conceived that

equality before the law, or formal equality, is a means to reach equality of rights,

opportunities and responsibilities, or real, de facto, equality. The objective is to go beyond

mere legal equality, seeking social change and transformation of cultural and social norms.

7HTTP://WWW.PDHRE.ORG/CEDAW/OVERVIEW.HTML (last visited on 19th October, 2014 at 6:35 p.m.)

http://www.pdhre.org/cedaw/overview.html


This means that law is not everything, but rather a means to reach an end. It is,

however, a very important means, because it legitimizes women's aspirations and serves as a

lever or catalyst for social change.

The Convention demands that States adopt appropriate measures to eliminate

discrimination against women within all spheres of life, public or private. Following the

Convention, States must:

Abolish discriminatory norms.

Modify laws that are not in line with the Convention.

Dictate new laws and take concrete actions that will promote equality.

Article 1 defines what is understood as discrimination. Two types of discrimination are

recognized:

Acts that purposely discriminate against women.

Acts that, although they may not have that intent, nonetheless result in some kind

of discrimination.

Article 2 defines measures that States should take to eliminate discrimination against women,

including reforms at the constitutional, political and legal levels, as well as monitoring and

sanctioning to eliminate discrimination against women by any person, organization or

enterprise. Along with laws and regulations, states must modify practices and customs that

put women in discriminatory positions. Rather than just dictate laws, states need to promote

equality plans, initiate campaigns in the media, change educational programs, etc.

Article 3 requires that governments take all necessary measures, including legislative, to

guarantee the development and advancement of women. States must revoke laws and

practices that negatively affect women, even if they seem to be "gender neutral."

Article 4 encourages states to adopt "positive measures," special measures of a temporary

nature to accelerate de facto equality between women and men. It clarifies that affirmative

action measures should not be considered discriminatory.

Article 5 demands that States take all appropriate measures to modify cultural models, social

and cultural patterns of conduct of men and women, and practices, prejudices and customs


which are based on the idea of the inferiority or the superiority of either of the sexes. It also

demands that family education must clarify the common responsibility of men and women in

the upbringing and education of their children. The Convention doesn't specify what

behavioral patterns it is referring to, nor does it explain the necessary measures to eradicate

them. Good guides to consult are the Nairobi "Forward Looking Strategies" and the Beijing

Platform for Action.

Article 6 aims to suppress all forms of traffic in women and exploitation of women in

prostitution. Article 7 guarantees equality of political participation of women and men.

Article 8 demands women's participation in positions of government representation at the

international level. Article 9 grants to women equal rights with men in regard to nationality.

In particular, it clarifies that a woman's nationality should not automatically be changed by

marriage or a change in her husband's nationality.

Economic, social, and cultural rights are guaranteed in Articles 10 (education), 11

(employment), 12 (health and family planning), 13 (family benefits, credit, and cultural life),

and 14 (equality in the rural environment).

Article 15 reaffirms the recognition of equality before the law between women and men,

especially in the fields related to the legal capacity of women, freedom of movement, and

choice of residence.

Article 16 outlines the need to eliminate discrimination in all matters relating to the family

and marriage. Human rights protections, until then tied to the public environment, are

introduced in the private environment. This is very important because it proves that laws

written to guarantee equality are incomplete if they don't address the discrimination women

face in their own homes. Division of tasks and responsibilities within the home which puts on

women's shoulders the almost exclusive responsibilities of children's upbringing and

housework overloads women so that they are restricted from full and free participation in

social and political life. If this problem is not resolved, despite other legal reforms,

improvements in conditions for women will be delayed indefinitely.

The second part of the Convention explains the mechanisms created to monitor States

Parties' adherence to the Convention. These include reports that each government that signed

the Convention must present to the Committee on the Elimination of Discrimination Against


Women. The first report is to be submitted a year after ratification of the Convention.

Subsequent reports are to be presented every four years. In each report, States should specify

what kind of measures have been taken to eliminate discrimination against women, in each

area addressed in the Convention.

Non-governmental organizations may present their own alternative reports, called Shadow

Reports, in which they outline their views on the situation of women and on measures taken

-- or not taken -- by their governments. These Shadow Reports are sent to members of the

CEDAW Committee, who take them into account and formulate questions for or request

explanations from the government delegations. Unfortunately there are no sanctions -- except

for political pressure -- for countries that fail to present their reports.

The CEDAW Committee is made up of 23 experts from different countries. Each member

serves for four years. Committee members are nominated by their governments and elected

during a special meeting convened by the UN Secretary General every two years in New

York.

INDIA AND CEDAW

India has ratified the Convention on the Elimination of All Forms of

Discrimination Against Women (1979) on July 9, 1993. Ratification of the Convention

obliges India to honour the obligations imposed by the Convention. In Madhu Kishwar

v. State of Bihar,8 it was held by the SC that the Convention on the Elimination of All

Forms of Discrimination Against Women is an integral scheme of the Fundamental

Rights and the Directive Principles. Article 2(e) of CEDAW enjoins the States Parties to

breathe life into the dry bones of the Constitution, International Conventions and the

Protection of Human Rights Act, to prevent gender-based discrimination and to

effectuate right to life including empowerment of economic, social and cultural rights.

Article 2(f) read with Article 3, 14 and 15 of CEDAW embodies concomitant right to

development as an integral scheme of the Indian Constitution and the Human Rights Act.

It is therefore desirable that the enabling legislature is enacted to give legal effect to the

Convention so that the discrimination against women which exists due to legal, social

8 A.I.R. 1996 SC 2178


and cultural traditions is eliminated. Rights provided therein will remain meaningless to

a large number of women due to their poverty, ignorance and illiteracy. 9

India while ratifying the Convention made two declarations and a reservation. The first

declaration reads: with regard to Article 5(a) and 16(1) of the CEDAW, the Government

of the Republic of India declares that it shall abide by and ensure those provisions with

conformity with its policy of non-interference in the personal affairs of any community

without its initiative and consent. The second declaration states with regard to Article

16(2) of CEDAW, the Government of the India declares that though in principle it fully

supports the principle of compulsory marriage, it is not practicable in a vast country like

India with its variety of customs, religions and the level of literacy. In additions to the

above declarations, India made a reservation by stating that it does not consider itself

bound by paragraph 1 of Article 29 of the Convention which relates to the settlement of

disputes through arbitration.10

It is to be noted that the declaration relating to compulsory registration of

marriage has become meaningless in view of the declaration of the Supreme Court in

Seema v. Ashwani Kumar,11 wherein the court held that marriages of all persons who

are citizens of India belonging to various religions should be made compulsorily

registrable in their States, where the marriage is solemnized. The Court asked the States

to notify the registration within three months. An official shall be appointed under the

rules to register marriages. As and when the Central Government enacts a comprehensive

statute, the same shall be placed before the Supreme Court for scrutiny. Counsel for the

States shall ensure that the directions are carried out immediately. Later the SC on

October 25, 2007 held for the compulsory registration of marriages in respect of all

persons who are citizens of India even if they belong to various religions. 12

It is to be noted that equality of status has been guaranteed to women by the Constitution

under Article 14, 15 and 16. The Constitution has also cast the duty on every citizen to

renounce practices derogatory to the dignity of women.13 It being a part of Directive

Principles of State Policy, is not enforceable in a court of law but if the States makes any

law to prohibit any act or conduct in violation of this duty, the Court would uphold the

9 Dr. Agarwal H.O., International Law and Human Rights, Central Law Publications, 19 th Ed., Allahabad, 2014, pg 854 & 85510 Ibid, at 85511 AIR 2006 SC 115812 Agarwal, Supra note 9 at 85513 Article 51-a(e)


law as a reasonable restriction of the fundamental rights. But it can be considered a myth

to millions of women as they are victims of various kind of violence within houses, at

work places and in the educational system. They are still subject to suppression. Tall

promises for improving the plight of women was made during 2001 which was declared

as ‘Women’s Empowerment Year’ but they were far from being fulfilled. National

Policy for the Empowerment of Women was placed before a group of ministers but the

policy has not been adopted. Seminars were organized on number of issues affecting the

conditions of women, no improvement has been made. They are being discriminated as

compared to brothers at home and their male colleagues at work.14

Jana Matson Everett identified five specific factors responsible for low status of women

in India both in the family and in society: the Hindu religion, the caste system, the joint

family system, Islamic rule and British colonialism. The values of Hinduism held the

male superior to female, and ‘tradition’ holds the key to many of the problems relating to

women and their development. This is because the role women play in society and the

images we have of them have not developed simply from exigencies of biology and

social situations but are rather deeply rooted in the myths, legends, religion and culture.

It is here that one finds, the underlying causes that kept the Indian women in

subservience and devoid of any identity. This tradition has gain such significance and

come to be accepted as the unwritten law of the land, so that any effort to modify this

accepted status of women sounds not only alien but even repugnant to women

themselves. It is this that makes the task of social change particularly difficult in India.

Hence it is not surprising, as S. Ruth observed, that women have lost the power of

naming, of explaining and defining for themselves the realities of their own experience. 15

There is no doubt that women in our society are undergoing changes in their aspirations,

perceptions, expectations and values. Even though women’s problems generally

command a high priority in contemporary Indian society, rural women are still to liberate

themselves from centuries of psychological, economic and social discrimination. The

reason why a large number of rural women are not aware of their customary and legal

rights are fourfold: illiteracy, excessive involvement in domestic chores, household

constrains and economic dependence on males. Since the rural ethos predominates and

14 Agarwal, Supra note 9 at 85515 Nirmal Chiranjivi J., Human Rights in India Historical, Social and Political Perspectives , Oxford India Paperbacks, 2nd Ed., New Delhi, 2003, pg 103


governs the social life of a large part of India, one can discern not only the degree of

backwardness of women but also that changes are marginal.16

INITIATIVE BY INDIAN JUDICIARY

Though CEDAW has not been incorporated, the judiciary and its proactive role have

paved the way to use the principles of the treaty in many judgments. The Supreme Court in

Vishaka’s case17 has held that any international convention, not inconsistent with the

fundamental rights and in harmony with its spirit must be read into these provisions to

enlarge the meaning and content to promote the object of the constitutional guarantee. This

decision thus enabled women to invoke the provisions of the international treaties and its

enforcement. In this case, the Supreme Court has laid down the guidelines for combating

sexual harassment and while doing so it has adopted the definition of sexual harassment from

General Recommendation 19 of the Convention. In Gita Hariharan case18 dealing with the

rights of woman to be a guardian for the minor child, the principles of the Convention have

been applied to hold the provisions of the Hindu Guardianship and Minority Act, 1956, as

being discriminatory. In Bandhua Mukti Morcha v. Union of India19, the Supreme Court

dealing with child labour held thus “No doubt, the Government, while ratifying the

Convention with a reservation of progressive implementation of the governance, reminded

itself of the obligations undertaken there under, but they do not absolve the State in its

fundamental governance of the imperatives of Directive Principles of the Constitution,

particularly, Articles 45, 39(e) and (f), 46 read with the Preamble, Articles 21, 23 and 24 of

the Constitution rendering socio-economic justice to the child and their empowerment, full

growth of their personality — socially, educationally and culturally — with a right to leisure

and opportunity for development of the spirit of reform, inquiry, humanism and scientific

temper to improve excellence — individually and collectively" So also in M.C..Mehta v.

State of Tamil Nadu20 the Supreme Court has given directions to the Government to monitor

and prevent child labour in the Shivakasi cracker manufacturing establishments. In

Municipal Corporation of Delhi v. Female workers (Muster Roll)21 the Supreme Court

dealing with the daily wage women employees’ right to claim maternity benefit has 16 Ibid, at 103 & 10417 AIR 1997 SC 301118 AIR 1999 SC 114919 (1997) 10 SCC 54920 (1996) 6 SCC 75621 AIR 2000 SC 1274


recognized the child bearing role of women as a social function, as stipulated under Article

5(b) of CEDAW.22

SHORTCOMINGS OF THE CONVENTION

WEAK ENFORCEMENT MECHANISM:23

State Parties that have ratified the Women's Convention are bound by its terms. Prior to the

adoption of the Optional Protocol, the Convention provided two procedures by which to

monitor State Parties' compliance with the terms of the Convention. These included the

interstate procedure and the reporting procedure, which together represented the only means

of enforcing the obligations of the Convention upon State Parties. The interstate procedure,

set forth in Article 29, addresses the conflicting interpretations and applications of the

Convention between State Parties. Disputes that arise out of such differing interpretations are

first put to arbitration to negotiate a solution to the disputed interpretation. Barring a

resolution within six months, the dispute can ultimately be sent to the International Court of

Justice (ICJ) for a final decision. The value of this procedure is substantial, as the ruling of

the ICJ has binding effect upon State Parties under international law. Yet there are several

obstacles to the effective deployment of this mechanism of Convention enforcement. First,

most State Parties have little incentive to initiate the interstate procedure. The underlying

principle of non-intervention in the internal affairs of States is an international norm that is

strongly supported by most States. In this regard, States tend to be concerned with the

retaliatory effect of any such intervention into another State's domestic application of the

Convention, particularly as nearly every State is vulnerable to criticism of its domestic

policies towards women. Second, the effectiveness of the interstate procedure is greatly

hampered by the fact that any State can refuse to be held to the procedure. Article 29(2) of

the Convention allows State Parties to declare upon ratification of the Convention that they

are not bound by this interstate procedure. Finally, the practical force of the interstate

procedure has not been tested, as no State Party has ever invoked the interstate procedure.

The State reporting mechanism, set forth in Article 18, previously represented the only

effective means of monitoring State Parties' adherence to the Convention. The reporting

mechanism operates like those of many other human rights treaties. It obliges State Parties to

22 HTTP://WCD.NIC.IN/CEDAWREP2005.PDF (last visited on 19th October 2014 at 11:50 p.m.)23 Supra note 4

http://wcd.nic.in/cedawrep2005.pdf


submit an initial report within one year of ratification of the Convention, followed by

periodic reports at least once every four years. In general, the reports must include the steps

the State Party has taken to integrate the Convention obligations into domestic laws and

policies as well as identify difficulties the State has faced in upholding the Convention. These

reports are submitted to CEDAW, which examines the report in the presence of the relevant

State Party representatives and other interested parties. Article 17 of the Convention gives

specific authority to CEDAW to review State Parties' reports and scrutinize their

implementation and adherence to the Convention before the international community.

Further, CEDAW may issue general recommendations regarding the nature and extent of

State Parties' compliance with the Convention based on their reports. Within the context of its

role in the reporting procedure, CEDAW is unable to place sanctions upon States for their

non-compliance with the Convention. Nor can CEDAW engage in any form of arbitration

between State Parties, or an individual and a State Party, regarding the interpretation or

application of the Convention obligations. The reporting process was structured to allow for

constructive dialogue between State Parties and CEDAW regarding implementation of the

Convention. This dialogue was aimed at achieving progressive implementation of the terms

of the Convention based on each State Party's specific restraints and capabilities. The process

by which reports are reviewed by CEDAW, in addition to the strong and growing presence of

non-governmental organizations (NGOs) in the deliberative dialogue between State Parties

and CEDAW, is said to represent a comprehensive approach to enforcing State Party

compliance with the Convention. As has become clear over time, however, neither of the

Convention's original enforcement mechanisms has sufficed to achieve an effective vigilance

over violations of the Convention.

RESERVATIONS: 24

Another hindrance to the Women's Convention is the expansive number of reservations that

State Parties have made to their obligations. The Convention is among the most reserved of

U.N. human rights instruments. Reservations are allowed by the Convention under Article 28,

which permits ratification subject to reservations, provided that they are not ‘incompatible

with the object and purpose of the present Convention. Yet the Convention provides no

mechanism to determine whether a State Party violates the Article compatibility requirement.

Nor does CEDAW have the authority to evaluate or limit reservations that violate the terms

of Article 28. Further, unlike other similar U.N. human rights instruments, including the

24 Supra note 4


Convention on the Elimination of Racial Discrimination, there are no procedural limitations

on making reservations. The debates surrounding reservations to the Convention are closely

related to the fundamental normative controversies that challenge the universal commitment

to international women's rights. While State Parties may accept the "object and purpose" of

the Convention, they often differ on how the "object and purpose" of the Convention should

be achieved. Differing cultural and religious practices are often at the heart of this lack of

consensus. For example, many reservations deal with the conflict between full equality rights

and some interpretations of Islam that qualify the definition of sexual equality to something

significantly less than the expansive notion of sexual equality embodied in the Convention.

Other prominent reservations deal with national religious or customary laws that restrict

women's inheritance and property rights; nationality laws that do not accord women the same

rights as men to acquire, change or retain their nationality upon marriage and laws limiting

women's economic opportunities, freedom of movement and choice of residence. Many of

these reservations have been questioned in terms of their compatibility with the "object and

purpose" of the Convention.

The issue of the debilitating effects of the numerous reservations to the Convention

was raised by State Parties and put before the U.N. General Secretary in 1986. But because of

the highly divisive views on the subject amongst State Parties, the issue has never been

decisively resolved. Drafters of the Women's Convention justified the liberal policy toward

reservations as a means to maximize participation by States, as they anticipated the

conflicting normative dilemmas that later did arise regarding specific provisions of the

Convention.

They endorsed the reservations provision as a means of highlighting those domestic

practices that do not comply with the Convention and encouraged State Parties to explore

how such practices can be reconciled with the object and purpose of the Convention. In this

regard, CEDAW requires State Parties to address the subject of their reservations to the

Convention in every report to the Committee. But with little other incentive to refrain from

reserving, State Parties continue to use the reservations provision as a way to preserve the

status quo rather than work towards the advancement of the goals of the Convention.

CONCLUSION


Both the weak enforcement mechanisms and the general acceptance of the numerous

reservations to the fundamental obligations of the CEDAW indicate the larger lack of

commitment to the basic norms and values that inform the international women's rights

regime. Some have criticized the Convention as acting only as a symbolic commitment to

these norms and values. Whether or not one accepts these critiques, it is undeniable that the

challenges to achieving the Convention's goal of equality and non-discrimination go beyond

the limited effectiveness of its original procedures even if these procedures were to work

perfectly. Even if it is agreed that the principles and values that inform the Convention are

fundamentally sound, something more is clearly needed to link these principles with the

elimination of the concrete forms of discrimination still faced by women. Promoting these

principles in various real-life contexts will be crucial to the Convention's long-term ability to

improve the status of women in society. Prior to the adoption of the Optional Protocol, the

Convention offered no direct mechanism or incentive for States to reconcile their

commitment to the norms and principles of the Convention with the conflicting norms rooted

in domestic laws and practices. Yet the recent procedural innovations to the Convention

embodied in the Optional Protocol which have been discussed in detail earlier have the

potential to surmount this fundamental challenge, and it is absolutely necessary in the context

of internationally protected women's rights that it can do so.25

Though many countries have ratified the Convention but still the Convention is not

implemented like in the State of Afghanistan. Reality struck home for Afghanistan over the

Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).

Ratified by Afghanistan in 2003 during the early heady post-Taliban days when it seemed

like a bright future for women was inevitable, CEDAW is a treaty that requires/demands

gender equality in access to education, health care, and political participation. It is the basis

for global efforts to end violence against women. The Afghan government is failing in many

ways to live up to the commitment it made by signing on to CEDAW. When you ratify a

convention you don’t just get a pat on the back and then a pass on your obligations.26

In the Gujarat Riots of 2002 India also failed to protect the dignity and rights of women and

the investigation conducted by Gujarat police was also questioned. USA has still not ratified

25 Supra note 426 HTTP://WWW.HRW.ORG/NEWS/2014/07/11/AFGHANISTAN-FAILING-COMMITMENTS-PROTECT-WOMENS-RIGHTS (last visited on 13th October at 12:27 a.m.)

http://www.hrw.org/news/2013/07/11/afghanistan-failing-commitments-protect-womens-rights



the Convention. Ratification of CEDAW requires 67 Senators to stand together for women

and girls.27

Thus it can be stated that CEDAW could not achieve the desire effect in view of the fact that

women’s human right are still disregarded and violated world wide, in different ways and in

varying degrees mainly because inequalities between men and women have roots in societal

norms and values. They cannot change overnight as a result of international agreements or

even by legislation. CEDAW committee in 2004 stated that even 25 years after the adoption

of the convention, no country in the world has achieve total equality between the sexes both

in law and in practice. The Committee also stated that discriminatory laws remain in 178

states that are parties to the convention. In other countries laws might promote equality but

informal discrimination remains.28

In spite of the lack of a meaningful enforcement mechanism and various other shortcomings,

however, CEDAW has inspired feminist activism around the world and helped raise women’s

legal consciousness.29

BIBLIOGRAPHY

BOOKS

27 HTTP://WWW.CEDAW2011.ORG/INDEX.PHP/WHATS-IN-IT-FOR-US (last visited on 13th October 2014 at 12:49 a.m.)28 Gupta U.N., Human Rights Convention and Indian Law, Atlantic Publishers and Distributers, 4 th Ed., New Delhi, 2011, pg 23629 HTTP://PAPERS.SSRN.COM/SOL3/PAPERS.CFM?ABSTRACT_ID=1983565 (last visited on 13th October 2014 at 12:49 a.m.)

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1983565

http://www.cedaw2011.org/index.php/whats-in-it-for-us


1. Gupta U.N., Human Rights Convention and Indian Law, Atlantic

Publishers and Distributers, 4 th Ed., New Delhi, 2011, pg 236

2. Dr. Agarwal H.O., International Law and Human Rights, Central Law

Publications, 19th Ed., Allahabad, 2014, pg 854 & 855

3. Brownlie Ian & Gill Guy S. Goodwin, Brownlie’s Documents on Human

Rights, Oxford University Press, 6th Ed., New York, 2010, Pg 429

4. Mishra Sujata, Women’s Health and Social Issues, Arise Publishers &

Distributors, 1st Ed., New Delhi, 2011, pg 42

5. Nirmal Chiranjivi J., Human Rights in India Historical, Social and

Political Perspectives, Oxford India Paperbacks, 2nd Ed., New Delhi, 2003, pg 103

WEB LINKS1. HTTP://WWW.HRW.ORG/NEWS/2013/07/11/AFGHANISTAN-FAILING-COMMITMENTS-

PROTECT-WOMENS-RIGHTS

2. HTTP://WWW.CEDAW2011.ORG/INDEX.PHP/WHATS-IN-IT-FOR-US

3. H TTP://WWW.UN.ORG/WOMENWATCH/DAW/CEDAW /

4. HTTP://WWW.LAWTEACHER.NET/INTERNATIONAL-LAW/ESSAYS/AN-ANALYSIS-OF-THE-

CEDAW.PHP



http://www.un.org/womenwatch/daw/cedaw/

http://www.cedaw2011.org/index.php/whats-in-it-for-us



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