5.1 Introduction
In part, the existence of CEDAW reflects the ongoing efforts of women since the foundation of the United Nations to make sure that the issues of gender and
discrimination would form a fundamental part of its agenda. However, these efforts have had mixed results. This chapter places the development of CEDAW in context at the United Nations in order to provide some background and insight into its strengths and weaknesses as a treaty. I argue that, while CEDAW reflects a history of willingness by the UN to broach issues of women’s rights, this has been within a limited
framework. In particular, I consider whether the acceptance of extensive reservations to CEDAW indicates a desire at the UN for an appearance of unity on women’s rights over an agreement on substance. Also, I sketch some of the significant developments on women’s rights in the UN since the adoption of CEDAW and consider whether these are likely to have a substantive bearing on the effectiveness and future relevance of the treaty as an instrument for the advancement of women’s human rights. I conclude that, despite its limitations, CEDAW is important as part of the historical process of
women’s human rights development.
5.2 Women’s rights at the United Nations
Of the 160 signatories to the 1945 UN Charter, the founding document of the United Nations, just four were women. However, the participation of a small group of women as delegates, councillors and technical experts and lobbying by women’s organisations were instrumental in ensuring that the Charter contained a reference to the ‘equal rights of men and women’ alongside the commitment to human rights (Division for the
Advancement of Women 2006, p. 7; Galey 1995; Tinker & Fraser 2004, p. xvi; Zwingel 2005b, pp. 81-2).
A new visibility of women’s rights issues after the Second World War was attributed in no small part to the many non-traditional roles that women had played during the wartime period (United Nations Department of Public Information 1996, p. 8). In ‘An Open Letter to the Women of the World’, presented by US delegate Eleanor Roosevelt to the UN General Assembly on February 12, 1946 and signed by 16 other
74 women delegates, it was noted that the ‘new chance for peace was won through the joint efforts of men and women … at a time when the need for united effort broke down barriers of race, creed and sex’. Women were called on to ‘share in the work of peace and reconstruction as they did in war and resistance’ and governments were urged to ‘encourage women everywhere to take a more active part in national and international affairs’ (Division for the Advancement of Women 2006; Pietilä 2007, p. 131; United Nations Department of Public Information 1996).
Created early in 1946, the Sub-commission on the Status of Women reported to the Commission on Human Rights, but it was argued by a number of women delegates and NGO representatives, including the Chairperson of the Sub-commission Bodil Bergtrup, that it should become a full commission in its own right. Bergtrup had argued for a separate commission in order that women’s concerns should not be ‘dependent on the pace of another commission’, as they would be if considered alongside other human rights issues (Morsink 1991, p. 230; Pietilä 2007, p. 14). In the June 1946 resolution establishing the new Commission on the Status of Women (CSW), the Economic and Social Council (ECOSOC) directed it to ‘prepare recommendations and reports to the Economic and Social Council on promoting women’s rights in political, economic, civil, social and educational fields’ and to make recommendations ‘on urgent problems requiring immediate attention in the field of women’s rights’ (Division for the
Advancement of Women 2006). ECOSOC then referred these recommendations to be considered and decided upon by the General Assembly and its Third Committee on Social and Humanitarian Affairs (Galey 1994, p. 132).
According to Galey (1995, p. 14), the CSW had a unique connection to the women’s movement internationally. A former United Nations Directorof the Human Rights Division, John Humphrey commented in his memoirs that:
more perhaps than any other United Nations body the delegates to the
Commission on the Status of Women were personally committed to its objectives … [and] acted as a kind of lobby for the women of the world … There was no more independent body in the UN. Many governments had appointed … as their representatives women who were militants in their own countries’ (Humphrey, in Morsink 1991, p. 232). .
75 However, despite this relative independence the CSW was not immune to the global political mood. Like the UN itself, in the early period the CSW was dominated by western and pro-western members. A number of small political conflicts within the CSW reflected Cold War tensions, and there were minor clashes on other issues. However, the operations of the CSW were not significantly disrupted due to its overall political homogeneity (Galey 1995). Galey considers that ‘members, observers, and Secretariat staff predominately reflected a traditional western view of women’s place in society and polity’ (1995, pp. 15-6). A former CSW member also recalls that:
A constant topic of debate in the commission … was the superiority of women’s status in the Soviet bloc as against the advantages of women in market-oriented economies. The challenge of development to bridge the gap between the rich and the poor countries was not yet well articulated by women leaders coming from the South. They were not yet aware of the international dimensions of the women’s movement (Shahani 2004, p. 28).
Another significant aspect of the CSW was its connection to non-government organisations (NGOs). Prior to the 1970s, CSW members often held positions in national women’s organisations and helped the CSW to operate as an expert body, rather than the more political body of later years (reflecting the changing appointments as more women moved into government roles) (Galey 1995, p. 14; Zwingel 2005b, p. 85). From its earliest meetings the CSW allowed the participation in various ways of many women’s international NGOs. Approved NGOs with consultative status to ECOSOC gained the ability to observe CSW meetings and to make contributions (Division for the Advancement of Women 2006, p. 2). According to Piettla, ‘[NGOs] were the channel through which the Commission aspired to establish direct contact with the women of Member states’ (Pietilä 2007, p. 15). As only governments were able to propose items for consideration by CSW, NGOs soon worked out an effective way to get their issues on the agenda by persuading government representatives to adopt and submit their proposals. Over time this led to many NGO suggestions being adopted by the CSW, sometimes flowing through to UN resolutions (Division for the Advancement of Women 2006, p. 2; Pietilä 2007, p. 15).
From its formation until the drafting of CEDAW, the work of the CSW went through some changes in emphasis. In the period 1946–1962, the primary focus for
76 CSW was on the promotion of equality through raising awareness and supporting legal rights for women (Division for the Advancement of Women 2006, p. 4; Tinker & Fraser 2004, p. xvi; Zwingel 2005b, p. 82). From 1963 until International Women’s Year in 1975, CSW began to focus on the role of women in development both as ‘beneficiaries and as agents of change’ (Division for the Advancement of Women 2006, p. 6).
International Women’s Year in 1975 focused on three aspects of women’s rights: peace, equality and development. According to Tinker and Fraser (2004, p. xvi), delegates from communist countries had often argued that rather than legal rights, peace was the most significant issue for women in their countries due to the prior existence of legal equalities. Galey comments that:
over its historical development, the CSW has addressed three main categories of women’s issues that parallel the UN’s major purposes: (1) peace and security, (2) economic and social development, and (3) human rights without distinction as to race, sex, nationality, or religion (1994, p. 133).
The new emphasis on women in development marked an important change in the focus of the work of the CSW. The significance of women’s role in development had not initially been recognised by the United Nations until a number of crucial points about the nature of development were exposed. In the discussions and debates within the UN surrounding the First Development Decade 1960–1970 about the best ways to achieve economic development, capitalist approaches such as infrastructure and industrial projects were criticised for increasing the gaps between rich and poor. The importance of including social issues was highlighted as a way to counter this. Once social planning was incorporated into discussions of national economic development, it became clear that issues of women in development had to be included in the work of CSW (Tinker & Fraser 2004, p. xvii).
The involvement of two economists proved crucial to this process. Gloria Scott laid the foundations for the approach now identified as women in development through her work as head of social planning in the Department of Economic and Social Affairs governed by ECOSOC. A key meeting organised by Scott in 1972 was the Interregional Meeting of Experts on the Integration of Women in Development. Ester Boserup was rapporteur to the meeting as well-being on the UN Development Planning Committee. Boserup’s book, Women’s Role in Economic Development, was published in 1970 and
77 considered ground-breaking. Her work challenged the prevalent notion that women were inactive in agriculture. In fact, in many developing countries they were the main food producers. It also highlighted the ways in which population increases, access to land and technologies affected women’s participation in food production. She also highlighted the ways in which the imposition of western conceptions of men’s primary role in agriculture often disadvantaged women and their families (Boserup 2007, p. 6; Scott 2004; Tinker & Fraser 2004, p. xviii). Boserup believed that the CSW secretariat viewed her role at the meeting:
as a means to get members of the Commission to change their focus from the generally unpopular subject of abstract women’s rights to the popular one of economic development (Boserup, in Tinker & Fraser 2004, p. xvii).
As previously indicated, the creation of the CSW was considered by its founders to be essential in order for women’s concerns to be addressed adequately within the UN framework. However, in regard to women’s human rights, the success of this approach has been questioned as these concerns have often been sidelined in other UN bodies and viewed as the work of the CSW. In 1973 this was reflected by an administrative move that placed the CSW under the Centre for Development and Social Affairs rather than the Division of Human Rights. As a result, women’s concerns were subsequently considered by UN bodies other than the CSW principally as being matters of social and economic development. Initially CEDAW was also affected by this perception, being seen primarily as a development tool rather than one in support of human rights. Nevertheless, with the support and involvement of NGOs and other participants in the international women’s movement, the CSW was the focal point for driving a women’s rights agenda within the UN (Zwingel 2005b, p. 91). More recently there have been changes to the administration of both the CSW and CEDAW. As of January 2008, the CEDAW Committee has been serviced by the Office of the High Commissioner for Human Rights (Division for the Advancement of Women 2009a; UN Women 2011). Also, with the creation of UN Women in 2011, the CSW is now being administered by the new agency.
A summary of the events leading up to the development of CEDAW is contained in Figure 4 on the following page.
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Figure 4: Progress towards CEDAW
1945 United Nations Charter reaffirms ‘faith in fundamental human rights ... in the equal rights of men and women’ (Preamble).
1947 Commission on the Status of Women (CSW) is established to initiate and monitor UN action on behalf of women.
1948 Universal Declaration of Human Rights proclaims that ‘everyone is entitled to all the rights and freedoms set forth in this Declaration without distinction of any kind, such as race, colour, sex’ (Article 2).
1954 General Assembly recognises that women are ‘subject to ancient laws, customs and Practices’ inconsistent with the Declaration and calls on governments to ‘abolish’ them (Res. 843, IX).
1963 General Assembly, noting continued discrimination, calls for a draft of a Declaration on the Elimination of Discrimination against Women (Res. 1921, XVII).
1966 Commission on the Status of Women submits draft to General Assembly, which returns it for revision ‘bearing in mind the amendments which have been submitted’ (Res. 2199, XXI).
1967 General Assembly adopts the revised Declaration on the Elimination of Discrimination against Women ‘to ensure the universal recognition in law and in fact of the principle of equality of men and women’ (Res. 2263, XXII).
1968 Economic and Social Council initiates reporting system on implementation by governments of Declaration’s provisions (ECOSOC Res. 1325, XLIV).
1970 General Assembly urges ‘the ratification of or accession to the relevant international instruments relating to the status of women’ (Res. 2716, XXV).
1972 The UN Secretary-General asks for the views of governments on the ‘nature and content of a new instrument.’
1973 ECOSOC appoints a 15-member working group to begin drafting a convention with effective procedures for its implementation.
1975 International Women’s Year World Plan of Action calls for ‘the preparation and adoption of the convention on the elimination of discrimination against women with effective procedures for its implementation’ (Item 198).
1977 General Assembly appoints Working Group of the Whole ‘to continue consideration’ of the draft convention (Res. 32/136).
1978 General Assembly recommends the working group complete its task (Res. 33/177). 1979 General Assembly adopts completed draft and invites signatures and ratifications (Res.
34/180).
1981 Convention on the Elimination of All Forms of Discrimination against Women enters into force with the required 20 ratifications.
79 The concept of CEDAW as a separate convention for women’s rights arose from a perception that the human rights contained in the 1948 Universal Declaration of Human Rights (UDHR) and associated Covenants were not adequately being applied to women (Pietilä 2007, p. 27). This is despite the fact that significant efforts had been made within the text of the UDHR to promote gender equality, a result that was not achieved without struggle (Morsink 1991, p. 230). Overall, the UDHR would have significantly less authority today if the content and wording of the original drafts had not been influenced by those lobbying for the inclusion of women’s rights (Morsink 1991, p. 256). The UDHR provided a starting point from which has flowed many of the binding provisions in international law for the protection of rights (Morsink 1999, p. xi). As Zwingel explains, ‘(t)he codification of human rights departs from the Universal Declaration of Human Rights and finds its expression in a number of Covenants and Conventions’ (2005b, p. 78).
A brief discussion of the treatment of women’s rights within the UDHR will be outlined here as the rights contained in the UDHR historically provided an important precursor for CEDAW. One of the first tasks of the CSW had been to provide input on the draft articles for the Universal Declaration of Human Rights (Division for the Advancement of Women 2006, p. 4). Consistent lobbying efforts by the CSW representatives and Soviet delegates were responsible for the strong thread of gender equality. The Declaration reflects this through the deliberate use of inclusive terms such as ‘everyone’ and ‘no one’ throughout, and the reference to ‘the equal rights of men and women’ in the preamble (Morsink 1991). The strong influence of women’s rights perspectives was evident in the drafting process through the retention of several important clauses including the references to ‘equal suffrage’, ‘equal pay for equal work’, and the right of all persons to an individual legal identity (to clarify the legal status of wives in some countries) (Zwingel 2005b, p. 84). These clauses are couched in terms emphasising non-discrimination. While sex discrimination was explicitly
mentioned by women delegates, who often argued for more specific wording, the final clauses were a compromise expressing a general intention rather than mentioning women in particular (Morsink 1991, pp. 252-5). Other important clauses were those pertaining to marriage. They referred to ‘men and women of full age’ being entitled to ‘equal rights as to marriage, during marriage and at its dissolution’, and stated that a marriage must have ‘free and full consent’ of both parties. In particular, the question of
80 divorce was contentious but was included. Morsink comments that ‘(t)he drafters
treated the question of divorce as one of non-discrimination rather than as itself a basic and independent human right’ (1991, p. 249).
From a women’s rights perspective, several concerns and omissions remained in the original wording of the UDHR. The Declaration contains statements supporting the family as a ‘natural and fundamental group unit of society’ (UDHR Article 16/3) and outlining a ‘right to a standard of living adequate for the health and well-being of himself and of his family’ (UDHR Article 25/1). The use of the word ‘natural’ was designed to exclude the possibility of non-heterosexual families and invites concerns that women might be viewed as subsumed within the family unit. These concerns are further heightened by the reference to the family wage, presuming a male breadwinner (Morsink 1991). This position in the UDHR on the family wage recalls that of the 1907
Harvester judgement, which established a basic wage in Australia based on living costs for a family of five: ostensibly a male breadwinner, female homemaker and three children (Devereux 2005, p. 41). Also, all provisions in the UDHR were limited to the public sphere, made explicit by the right to privacy in Article 12.
In the period after the adoption of the UDHR a number of attempts were made to codify the intent of the Declaration by enshrining specific rights for women within international law. Zwingel states that the CSW ‘initiated conventions in fields identified by Commission members as the most important for improving the status of women’ (Zwingel 2005b, p. 84). These included the adoption of conventions that supported women’s political and marriage rights, rights to non-discrimination in regard to
education and employment and a condemnation of trafficking and exploitation through prostitution. However, many other issues surrounding women’s rights were extremely contentious, and attempts to reach joint agreements were often blocked (Pietilä 2007, p. 28; Zwingel 2005b, p. 84). Acknowledging the continued unequal treatment of women, the General Assembly recalled the principles outlined in the UN Charter and UDHR in 1954 when it urged member states to abolish ‘customs, ancient laws and practices relating to marriage and the family which are inconsistent with these principles’ (United Nations General Assembly 1954).
In 1963, the General Assembly requested a draft of a Declaration on the Elimination of Discrimination against Women (DEDAW). This was in response to a
81 request that was co-sponsored by 22 countries,22 primarily from developing countries and Eastern Europe. Shaheed is of the opinion that ‘these particular countries made the request because they understood that discrimination against women is a major obstacle to development’ (2010, p. 194). While noting that some progress had been made toward