2 The 1951 Convention and its 1967 Protocol
3.1 Introduction to CEDAW
CEDAW, many times described as the international bill of rights for women, was adopted by the UN General Assembly in 1979 and entered into force in 1981. Sweden was the first country to ratify CEDAW in 1980 and today it has a total of 189 States parties, although many of them have made extensive reservations to it.251
CEDAW consists of a preamble and 30 articles, which include a definition of what constitutes discrimination against women and an agenda for how to end such discrimination. The definition of discrimination against women is contained in article 1 of the Convention, which states that “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, irrespectively 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.
CEDAW creates far-reaching obligations in relation to gender equality. More specifically, it establishes three obligations, which ought to be read as “sub-objectives” of the overall object and purpose of CEDAW: to eliminate all forms of discrimination against women.252 Firstly, the contracting States are obliged to “ensure that there is no direct or indirect discrimination against women in their laws and that women are protected against discrimination –
251 UN General Assembly, Convention on the Elimination of All Forms of Discrimination Against Women, 18 December 1979, United Nations, Treaty Series, vol. 1249, p. 13, available at: http://www.refworld.org/docid/3ae6b3970.html [accessed 6 January 2016];
Tomasevski 2000, p. 16.
252 Benninger-Budel et al. 2006, p. 246
committed by public authorities, the judiciary, organizations, enterprises or private individuals – in the public as well as the private spheres by competent tribunals as well as sanctions and other remedies”.253 States parties are thus not only obliged to eliminate direct discrimination, but also indirect discrimination, which “may occur when laws, policies and programmes are based on seemingly gender-neutral criteria which in their actual effect have a detrimental impact on women”.254
The contracting States are secondly obliged to “improve the de facto position of women through concrete and effective policies and programmes”.255 Article 4 of CEDAW allows States parties to adopt “temporary special measures”, which according to the CEDAW Committee is a central means to realise de facto or substantive equality for women.256
Thirdly, States parties must “address prevailing gender relations and the persistence of gender-based stereotypes that affect women not only through individual acts by individuals but also in law, and legal and societal structures and institutions”.257 This obligation is found in article 5(a) of CEDAW, which reads as follows:
State Parties shall take all appropriate measures:
(a) To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.
While all of these obligations are key to the promotion of women’s rights, the latter obligation in article 5 is central to this study for reasons which I will explore in the next section.
The members of the Committee are elected by the States parties and serve as independent experts that monitor the compliance of the States parties with CEDAW and contribute to its interpretation.258 The States parties are required to submit regular reports concerning the measures that have been taken in order to achieve the goals of CEDAW. The Committee’s mission is to consider these reports and address its concerns and recommendations to the States parties in the form of concluding observations.259
The Committee has further commitments under the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against
253 CEDAW, General recommendation No. 25, on article 4, paragraph 1, o the Convention on the Elimination of All Forms of Discrimination against Women, on temporary special measures, 2004, available at http://www.refworld.org/docid/453882a7e0.html [accessed: 7 January 2016], (Hereafter: General recommendation No.25), para. 7; See article 2 CEDAW.
254 General recommendation No. 25, Note 1.
255 General recommendation No. 25, para. 7.
256 General recommendation No. 25, para. 14.
257 General recommendation No. 25, para. 7.
258 Article 17 CEDAW; Tomasevski 2000 p. 13.
259 Article 18 & 20 CEDAW.
Women,260 which contains two mechanisms to hold governments responsible to their obligations under CEDAW: a communications procedure and an inquiry procedure. The communications procedure gives individual women or groups of women a right to submit claims of violations of rights protected under CEDAW before the Committee.261 This presupposes that all national remedies already have been exhausted.262 The inquiry procedure enables the Committee to initiate inquiries into situations of grave or systematic violations of women’s rights.263
Article 21 of CEDAW allows the Committee to make general recommendations based on the examination of reports and information received from the States parties. The general recommendations are addressed to the States parties and usually elaborate the Committee’s view of the obligations assumed under the Convention.264 The recommendations can be made on any issue that affects women and that the Committee considers should be devoted more attention to. Last year, the Committee issued a general recommendation which brought up the issue of female refugees and asylum seekers and the problems they encounter. This indicates that the relevance of gender in asylum claims is still being developed and is considered to be an important and current issue. This general recommendation is presented in the next section.
CEDAW does not explicitly state whether its provisions apply to all women within the States territory or jurisdiction. However, the Committee has established that CEDAW applies to both citizens and non-citizens:
Although subject to international law, States primarily exercise territorial jurisdiction. The obligations of States parties apply, however, without discrimination both to citizens and non-citizens, including refugees, asylum-seekers, migrant workers and stateless persons, within their territory or effective control, even if not situated within the territory. States parties are responsible for all their actions affecting human rights, regardless of whether the affected persons are in their territory.265
Furthermore, the fact that the Committee has issued several documents concerning for example trafficked women, female migrant domestic workers, unaccompanied or undocumented female children and asylum seekers (which I will present in the next section below), speaks for the view that the Committee has based its works “on an assumption of broad applicability”.266
260 Hereinafter: Optional Protocol.
261 Article 2 Optional Protocol.
262 Article 4 Optional Protocol.
263 Article 8 Optional Protocol.
264 UN Women, General recommendations, available at:
http://www.un.org/womenwatch/daw/cedaw/recommendations/index.html [accessed 6 January 2016].
265 CEDAW, General Recommendation No. 28 on the Core Obligations of State Parties under Article 2 of the Convention on the Elimination of All Forms of Discrimination against Women, CEDAW/C/GC/28, 16 December 2010, available at:
http://www.refworld.org/docid/4d467ea72.html [accessed 7 Januar 2016], para. 12.
266 Gallagher, 2012[2010], p. 153.
My point of departure is therefore that CEDAW, in relation to a State party, covers all women and not only women who are citizens.