Part VI of CEDAW concerns itself with a number of technica1 matters which will not be discussed here.
Under Article 29 of CEDAW, two or more state parties can refer disputes about the interpretation and implementation of CEDAW to arbitration, and if the dispute is not settled, it can be referred to the International Court of Justice. This procedure is subject to a large number of reservations and has never been used.
Additional Enforcement Mechanisms
In 1994, the Commission on Human Rights created, by resolution 1994/45, the post of special rapporteur on Violence Against Women, and created procedures whereby information could be obtained from governments on cases concerning alleged violence against women.
It is also worth remembering that mechanisms under different treaties may be employed. Communications could be made under the first Optional Protocol to the ICCPR. Communications concerning laws that discriminate against women could be made under this Protocol and by reference to Article 26 of the ICCPR.
This provides that men and women are equal before the law, and that the law must guarantee effective protection against discrimination. This procedure was used in Broeks v Netherlands 172/1984where a Dutch Unemployment Benefits Act was successfully challenged on grounds of discrimination.
The mechanism that we considered in Chapter 5, the 1503
Procedure of the Commission of Human Rights, may also be used.
Discrimination or violence against women may also fall under Article 14 of The Convention on the Elimination of All Forms of Racial Discrimination, or Article 22 of the The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Analysis of Rights in CEDAW and Other Human Rights Instruments
It is worth noting that more states have made reservations to this treaty than to any other human rights treaty. What does this suggest about the resistance to women's rights at a state level?
Pages 181-185 of Steiner and Alston contain an interesting analysis of rights and duties, and we will examine this in depth.
The comment on the state duties points out that human rights law has made a distinction between positive and negative rights. It is worth remembering that all rights correlate with duties to make sense of this
analysis. You might also want to look again at Chapter 3 of this subject guide, where we considered the legal nature of rights. Negative rights place a duty on the state not to interfere in certain areas where individuals have rights. Positive rights place a positive duty on the state:
the duty to do something, such as providing food. Social and economic rights fell into this latter category. The classic civil liberties, for the most part, fall into the former category. However, to what extent is this distinction useful? If one remembers that rights develop over time, then a negative duty merely not to interfere, can become a positive duty to facilitate an area of activity: to encourage free speech, for instance.
Respect for the rights of others
This was a good example of a basic negative duty placed on the state. It is a basic human rights notion, laying down a fundamental standard that could even extend beyond the state to private parties. To the extent that a state should ensure private parties respect the rights of others, a negative duty has turned into a positive duty.
The creation of institutional machinery
There are many provisions in both the Declaration and CEDAW that require the provision of certain institutions: a voting system, or an independent legal system, for instance. This is a positive duty placed on a state; it would be hard to think of it as a negative duty simply not to interfere.
The duty to protect rights and prevent violations
Once again the strict negative/positive distinction tends to break down here. The duty to protect rights means that a state must not interfere, i.e.
has a negative duty; but the duty to prevent violations is positive as it requires the creation of a police force and a legal system.
Provide goods and services to satisfy rights
Welfare rights which involve state expenditure are good examples of positive duties: the state has to provide institutions and resources, a health service, for instance.
Promotion of rights
Another positive duty, for reasons similar to those stated above.
It would seem, then, that a strict distinction between positive and negative rights is not useful. Indeed, the extract from the article by Nickel, suggests that one needs a more sophisticated way of understanding the complex nature of rights. Consider the prohibition of
CEDAW). The duty to refrain from an act is universal and general- it is addressed to both state and non-state bodies. However, an 'adequate response to the claim to freedom from torture also requires finding individuals or institutions that can protect people against torture’ (185).
This positive duty is not necessarily universal. It is only binding on those states or institutions that can mobilize the necessary resources.
Nickel then makes a further distinction between the primary addressees, i.e. the state in our example, and secondary addressees who bear
‘secondary or back up responsibilities’.
Thus, the people at large in a country, and also international agencies, are secondary addressees because they owe duties to assist, encourage and pressure governments to refrain from torture (186). The point of this analysis is to clarify the sense in which rights are always linked with duties; and duties can fall on different bodies.
SELF ASSESSMENT EXERCISE
1. In what ways could CEDAW be enforced?
Feminist Criticisms of CEDAW
Feminist critiques of the Universal Declaration have made a number of points. There have been criticisms of Article 16 because it valorisesa notion of the family that is both unclear, and, in relation to Article 25(2), ill thought out. One issue that the Declaration does not cover adequately is the rights of the abused child, or even the abused wife against the family. Other criticisms of the ICCPR raise the issue that the reporting system does not deal properly with violations of women's rights.
Criticisms of CEDAW address the fact that it has led to a ‘ghettoisation’
of women's rights issues. Furthermore, in comparison with other human rights bodies, the enforcement mechanism under CEDAW is poorly funded.
Are these criticisms fair? Clearly any assessment of these claims would depend on a derailed study of the reports under the ICCPR; it would also be necessary. to look at the figures for the budget of various UN agencies before one could assess the claim that CEDAW is under-funded. One would also have to bear in mind gender mainstreaming, and other recent developments before one could make an overall assessment of these claims.
Summary
In this section we have looked at the subsrantive rights contained in CEDAW. We have also considered the enforcement mechanisms that exist under the treaty. We then turned to a more formal analysis of
rights, and attempted to analyse the complex interplay between rights and duties.
o The Optional Protocol
CEDAW also has an optional protocol. Its Articles, so far as they concern us, are explained below.
6.1.1 Why was there a Need for an Optional Protocol?
The Optional Protocol to CEDAW was based on commitments made in the Vienna Declaration in 1993 and the 1995 Fourth Conference on Women. It was created by a resolution of the General Assembly. The protocol begins by asserting the competence of the Committee on the Elimination of Discrimination against Women to receive and consider communications in accordance with Article 2.
Article 2 provides that communications may be submitted by or on