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.