Thursday, 28 June 2018

The relevance of CEDAW today

The Convention on the Elimination of all Forms of Discrimination Against Women (“CEDAW”), is a treaty quite glorified in its times. It is treated almost as the Universal Declaration of Human Rights (“UDHR”) of women’s rights and indeed many similarities can be found with the UDHR and the CEDAW for both are frameworks based on which development of international human rights law has happened even when the CEDAW itself is based on the UDHR. It is interesting to note that despite its non-binding nature, the UDHR still remains the holy grail of human rights as a source to draw rights from – such is also the case with CEDAW in my humble opinion. I have mixed opinions about the nature and relevance of the CEDAW as a document relevant in modern times to champion the cause of women’s rights in general for much has changed in the socio-economic scenario since the adoption of CEDAW. These views are expressed in the following paragraphs.

            At its outset, CEDAW contained certain provisions that were seen as radical and ground-breaking which undermined its effectiveness at the start with blanket reservations on non-implementation of Arts. 2 and 9(2) being made by all Islamic countries as men and women cannot be considered equal under Sharia law[1]. CEDAW had set out with a noble objective to establish equality of women in all spheres – public and private but disregarded customs, practices or religion which sometimes, more often than not formed the basis of this discrimination. CEDAW, though not completely ineffective, could not achieve much in countries which followed discrimination on the basis of religion and customs like the Islamic countries as mentioned hereinbefore. What was required was social movements in the grassroot level, activists and dissemination of knowledge about equality instead of a piece of paper that declared responsibility on states. Non-production of the desired effect could not undermine the inherent importance of CEDAW as a legal framework convention for protection of women's rights.

            Even before the conception of women’s rights as an international issue, in Bengal, Raja Rammohan Roy championed the cause by eradicating the sati system from Bengal, then eventually spreading awareness to the whole of India. He was one of the pioneers of a system of gender-neutral rights by advocating for right to property to be gender-neutral under Hindu law, which is the norm today. In that sense, the objective of CEDAW had already began its journey in the late 1700s in Bengal and has come a long way. This example is to support the fact that the sensitive fabric of religion and customary practices cannot be trampled upon except by education and awareness, only possible through effective leaders like Raja Rammohan Roy. CEDAW, being a non-self-executing treaty could do little to help the really needy women of the developing and underdeveloped countries whose rights failed to realise due to the massive hindrance caused by illiteracy, religion and economic stagnation. CEDAW might have given a helping hand to those women who were resourceful and belonged to the upper strata of society so as to be able to afford a dispute settlement internationally.

            Although not as practically useful as it is on paper, CEDAW was the starting point of the realisation of women’s rights and the guiding light of international conscience revolving around issues relating to women’s rights. It was the first major acceptance, on principle, of responsibility of discrimination against women and that something needed to be done to counter this imbalance. This gave rise to the suggestion that individuals as well as communities can bear rights, which led to the debate of liberal feminism vs. radical feminism. It entails the acceptance that women are not only individual bearers of rights as self-owners but also bear rights as a community of the sex, i.e. women collectively have a right against the state against discriminatory laws and action. Therefore, it flows that women are capable of acquiring and exercising independent rights through their own self, as opposed to, e.g. women being the acquirer of rights and their husbands being the exerciser of these rights in case of married women. This foundational basis for CEDAW is why CEDAW is relevant today, not because of the legal romanticism that it could uplift women’s rights around the world.

            CEDAW, in today’s world, would also be a treaty that overlooks many contemporary rights of women that are accepted around the world, e.g. right to abortion, right to sexuality etc. CEDAW also fails to give justice to those women who are under “dual-oppression”, e.g. women who are lesbian and are Muslim, especially in a state whose government are representatives of the religious order. CEDAW, although applicable to personal laws, does not make this principle of non-discrimination in personal law non-derogable which has resulted in numerous reservations regarding the same, including India[2]. Needless to say, most discrimination occurs through personal laws, which became expressly visible in India through the much highlighted triple talaq issue. This therefore entails that CEDAW has created the big gap in this public-private divide in the rights of women subject to consideration in the international arena as well.

            To conclude, CEDAW, in today’s world can be seen as a relevant document to understand that women have been, and are being discriminated against in today’s world. CEDAW is the foundational framework from where developments can be made to include more issues of importance to gender justice including eventually acknowledging the fact that not only women, but transgenders are also victims of gross discrimination. I think that the CEDAW in a few years should be replaced by a more modern treaty reflecting the rights of women both individually and collectively, accepting the fact that when ‘law’ discriminates, it is a discrimination by the one from where women seek their solace. CEDAW is the beginning point of the path which entrusts states with the responsibility of affirmative action for women, and to not treat them as an object of sympathy and weakness instead of treating as equals.

[1]See reservations and declarations by Algeria, Bahrain, Bangladesh, Brunei Darussalam, Egypt, Iraq, Jordan, Kuwait, Lebanon, Libyan Arab Jamahiriya, Malaysia, Oman, Saudi Arabia, Syrian Arab Republic, Tunisia, and United Arab Emirates available at last accessed Jan. 26, 2018.
[2] See note 1 for the reservations.


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