BY BAI ZHONGHONG  

Bai Zhonghong

1. The International Protection of Women's Human Rights: Emergence of CEDAW

For a long time, women's rights have been excluded from traditional discourse on human right. The traditional discourse on human rights has developed without considering its impact upon women. Transforming this discourse to a perspective that will consider the needs and vindications of women is absolutely essential[1]. Although international efforts addressing women's issues presumed to be associated with women began in the nineteenth century, it was in the postwar period that such activity gained a coherent focus under the auspices of United Nations. The United Nations has played an active and important role in this transformative process of acknowledgement and development of women's human rights.

The United Nations was created following World War Ⅱ. Its purpose and the basic principles it affirms, including the principle of non-discrimination, are set forth in the UN Charter.2 Then in 1946, The Commission on the Status of Women was created, just one year after the United Nations Charter entered into force. This Commission, which deals with all matters concerning women, demonstrates the United Nations' commitment to the principle of non-discrimination in relation to women. The Commission has played a very important role in the process of elaborating the human rights mechanisms adopted within the framework of the United Nations. As the human rights provisions in the United Nations Charter were extremely vague and general; it soon became apparent that they would need to be specified. Therefore, interested States Parties drafted the Universal Declaration of Human Rights, which was adopted on December 10, 1948. It is important to point out the significant role of the Commission on the Status of Women in the creation of the Universal Declaration. Throughout the drafting process, the Commission constantly defended the inclusion of the female perspective into the text. The Universal Declaration is also an important document in respect to women's rights, in which the preamble, Article 1, 2, also reiterate the principle of non-discrimination. In 1966, the United Nations adopted two International Covenants on human rights:  the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights. In addition to promoting human rights, these covenants also contain specific references to the principle of non-discrimination.  The language of the two human rights covenant is practically identical to the instruments above and was intended to have the same meaning.

A brief historical overview indicates that the United Nations has also done a commendable job recognizing certain aspects of women's rights.3 Although these instruments reflected the growing sophistication of the UN system with regard to the protection and promotion of women's human rights, the approach they reflected was fragmentary, as they failed to deal with discrimination against women in a comprehensive way. In addition, there was concern that the general human rights regime was not, in fact, working as well as it might to protect and promote the rights of women.4Up until the 1970s, however, there was still no international human rights treaty that comprehensively addressed women's rights within political, cultural, economic, social and family life and obliged states to take action to end discrimination against women. For a long time, women were not considered as a targeted group requiring assistance from the international community to promote the rights.5 Since then, women's groups in various countries have successfully brought the issue of gender bias and discrimination to international attention. Discrimination against women has now become a global issue. In this regard, the adoption of the United Nations Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) in 1979 was an important milestone which marked an international commitment to the cause of women's rights. Known as the international bill of rights for women, it was adopted in the middle of the UN Decade for women, entering into force on September 3, 1981, following the "deposit with the secretary General of the United Nations of the twentieth instrument of ratification or accession"6. As the title suggests, the goal of the goal of the convention is to end discrimination faced by women in their pursuit of civil, political, economic and cultural rights.Currently, 185 countries - over ninety percent of the members of the United Nations - are parties to the Convention.7 It is now the second most widely ratified international human rights treaty except the Convention on the Rights of the Child, 1990, which 191 countries have ratified. Needless to say, CEDAW represents the most serious systematic attempt by the United Nations to fight decidedly for the rights of women.8 It is the most important instrument concerning women's human rights.

2. Main Provisions of CEDAW

CEDAW is composed of a Preamble and thirty articles. In the preamble, it acknowledges that "extensive discrimination against women continues to exist", and emphasizes that such discrimination "violates the principles of equality of rights and respect for human dignity". This treaty is aimed at the elimination of discrimination against women, "for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men". In sum, the elimination of the discrimination that persists against women and their right to be equal before the law are crucial elements of the women's convention.9

First of all, discrimination is defined as "any distinction, exclusion, or restriction made on the basis of sex", which impairs the enjoyment by women of "human rights and fundamental freedoms in political, economic, social, cultural, civil or any other field"(Article 1). Unintentional as well as intentional discrimination is prohibited; private as well as public actions are regulated. Other areas are also covered:  exploitation of prostitution is prohibited in Article 6. Article 7 establishes women's rights to vote and to hold public office on a basis of equality with men. Article 9 gives women equal rights in conferring their own nationality on their children. The importance of education is underlined in Article 10 which details measures to be taken in the area of education. Some additional provisions require specific protection for women. Article11 prohibits employment discrimination on grounds of sex and it addresses employment issues relating to pregnancy and maternity. It requires countries "to ensure the right to equal remuneration,including benefits, and to equal treatment in respect of work of equal value". In addition to the obligation to condemn discrimination against women, the countries which ratify this convention undertake "to embody the principle of equality of men and women in their national constitution or other appropriate legislation" and to adopt laws or other measures including appropriate sanctions against sex discrimination.10 The particular problems of rural women, and rights specific to their advancement, are outlined in Article 14. Article 15 provides for the equity of women before the law in all civil matters, requiring states to ‘give women equal rights….to administer property'. Finally, under 16, states parties are required to "take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations". The remainder of the thirty articles of the Convention are concerned with the enforcement mechanisms and details of ratification, accession, designated depositary, and arbitration of disputes between states parties concerning implementation of the Convention.11

3. The Success and Limitations of CEDAW

CEDAW is the first comprehensive international agreement dealing with the human rights of women, which is called "the definitive international legal instrument requiring respect for, and observance of, the human rights of women".12 As noted, the basic legal norm of the Convention is the prohibition of all forms of discrimination against women. This norm cannot be satisfied merely by the enactment of gender-neutral laws. In addition to demanding that women be accorded equal rights with men, CEDAW goes further by prescribing measures to ensure that women everywhere are able to enjoy the rights to which they are entitled. States parties to CEDAW are bound to uphold these rights through the enactment and implementation of national laws and policies. Within one year of signing the convention, a state must report to the Committee on its efforts to meet the Convention's goals. Thereafter, it is required to submit a country report once every four years.13 Therefore, the goals of the convention seem noble and thoughtfully conceived.

The convention also operates in the context of progressive development and strives in good faith towards the goal of the elimination of discrimination against women.14As predicted by its proponents, it has been generally applicable in signatory countries. For instance, the High Court of Tanzania cited the Women's Convention, which has been ratified by the Tanzanian legislature, in determining that Tanzanian law provide women protection against sex discrimination.15 This case concerned a woman who sold land inherited from her father to a non-clan member. Her action was challenged by her clan members who argued that according to custom she had no right to inherit land. The High Court of Tanzania affirmed her right to inheritance. In this context, international obligations took precedence over domestic customary law. Thus, the implementation of this convention indicates that there has been some progress in the area of protecting women's rights under international human rights law.16

The adoption of CEDAW was a triumph for women's for women's organizations that has brought the issue of gender bias and discrimination to the attention of the international community. However, it has also been subjected to criticism. A serious problem that has had a profound impact on the effectiveness of CEDAW is that States Parties expressed a great number of reservations concerning certain provisions. This has turned CEDAW into the international human rights treaty with the greatest number of reservations. Furthermore, according to certain experts some of these reservations go against the object and purpose of the Convention, which is expressly prohibited both by the Vienna Convention on the Law of Treaties and by CEDAW Article 28.2.17The issued a General Recommendation suggesting that all States Parties should reconsider their reservations with the aim of retracting them. In this regard, considering the number of reservations and the significance of their content, the World Conference on Human Rights held in Vienna in June 1993 decided that "ways and means of addressing the particularly large number of reservations to the Convention should be encouraged."18The Conference also urged the States to" withdraw reservations that are contrary to the object and purpose of the Convention or which are otherwise incompatible with international treaty law." Despite the efforts to minimize the undesirable impact of these reservation, it has been noted that state parties to the Convention have lodged 80 substantive reservations to it.19 The reservation impairs the effectiveness of the Convention marginally although it has 185 signitory states.

Another key deficiency of the convention is its lack of an effective enforcement mechanism especially lack of support to women who wish to bring individual complaints. There is only a system of interstate complaints against violation. Indeed, a provision in the Convention permits state parties to lodge their complaints against each other on the basis of their violations of the international treaty. Thus, any state that is a party to the convention could raise the matter with another country that is seen to have violated the Convention. However, this provision has never been applied. It is not difficult to see the nations are not willing to file complaints against each other in matters pertaining to women's rights. Obviously, such a system of interstate complaints is not effective.20 When it comes to legal redress, CEDAW has a narrow power:  the committee (The United Nations Committee on the Elimination of Discrimination against Women, an expert body established in 1982, is composed of 23 experts on women's issues from around the world) excludes considerations of individual complaints against their governments. Put simply, it does not provide for any individual complaints procedures. Other criticisms of CEDAW have centered on two issues:  the omission of a specific provision on violence against women. These limitations or deficiencies make it possible to develop the Convention to promote women's human rights in effect.

4. Strengthening International Protection of Women's Human Rights:  the Optional Protocol to CEDAW

The protection mechanisms for women's rights established by CEDAW are weak and CEDAW has remained a relatively ineffective weapon due to the reservation issue and lack of effective enforcement mechanism and the omission of a specific provision on violence against women. With respect to this, Theodor Meron has pointed out that CEDAW has become a second-class instrument within the family of United Nations human right treaties.21 Lately, international law has increasingly recognized that an individual may possess both rights and duties, and that the legal principle that individuals do not participate on the international scene has been eroded. Individual complaints procedures have been included in some international treaties, including the International Convention on the Elimination of All Forms of Racial Discrimination (1969) and the Convention against Torture. This takes the form of "Optional Protocol".22 Very often, human rights treaties are followed by "Optional Protocols" which may either provide for procedures with regard to the treaty or address a substantive area related to the treaty. Optional Protocols to human rights treaties are treaties in their own right, and are open to signature, accession or ratification by countries who are party to the main treaty, which either provide for procedures with regard to treaty, or address a substantive area related to the treaty. Increasingly, women's organizations called for the introduction of an Optional Protocol to CEDAW to strengthen international protection of women's human rights and to improve on and add to existing enforcement mechanism for women's human rights. With great efforts, the Optional Protocol to CEDAW was finally adopted by the General Assembly through Resolution 54/4 on October 6, 1999 and entered into force on December 22, 2000, and currently 90 States are Parties of the Protocol as of 27 November 2007.23

The Optional Protocol to CEDAW opens up opportunities for women to assert their rights against oppressive regimes and has significantly enriched the protection mechanisms of women's rights at the international level. It represents an unprecedented step forward in women's quest for justice and equality on the global sence.24 But how effective is the Optional Protocol likely to be? In light of the lessons from CEDAW, the Optional Protocol gives its fundamentally procedural character, not allow for the possibility of including reservations and rejects the possibility of formulating reservations, which could seriously weaken the Protocol and undermines its credibility, contrary to its aim of increasing the efficacy of CEDAW, and reservations work against the object and purpose of the Convention itself. This is, without a doubt, one of the Protocol's most positive aspects, since this action may set a good precedent for future developments in international human rights law. Thus, according to Article 17, "no reservations to this Protocol shall be permitted". Of course, the Protocol, as its name implies, is an optional unsturment. Therefore, the effectiveness of the new mechanisms depends on ratification by States Parties to CEDAW.

 The optional protocol to CEDAW includes: The optional protocol includes a communication procedure and an inquiry procedure. Communications Procedure gives individuals and groups of women the right to complain to the Committee on the Elimination of Discrimination against Women about violations of the Convention. The optional protocol includes an inquiry procedure. An inquiry procedure enables the Committee to conduct inquiries into serious and systematic abuses of women's human rights in countries that become States parties to the Optional Protocol. The procedures of the Optional Protocol strengthen the protection mechanisms of women's rights. Furthermore, it will place the Convention alongside the most important treaties adopted by the United Nations. The existence of more demanding protection mechanisms in the Protocol encourages better compliance from States Parties.25 Mechanisms of the two procedures force the States that ratify the Protocol to initiate significant efforts towards a better and more effective application of CEDAW.

5. Conclusion

As we enter the twenty-first century, the reality of violations against women's rights and oppression remain harsh. Many nations, developed and developing, have constantly violated women's rights, both at the domestic and international level. Parallel to this, an international tolerance of discrimination against women has been persistent. Many nations are able to turn a blind eye to such violations by successfully putting forward the sovereignty argument, which effectively excludes criticisms from outside. An international common effort is called for to introduce positive changes advancing women's rights.26 At international level, despite the fact that CEDAW and its Optional Protocol play an active and important role in protecting women's human rights, the campaign for the elimination of discrimination against women has been a long, uphill struggle, since we know CEDAW and its Optional Protocol is merely a "soft" international law relying on political pressure rather than legal force, and we still have a long way to go to change the deeply rooted attitude in our male-dominated society and to achieve actual equality with men. The progress is slow, but certain. We need global solidarity and support for our local struggles which involve not only national endeavors, but also international efforts.

lecturer of Zhuhai College, Jinan University; Ph.D Candidate, Law School of Wuhan University.