Human Rights of Women: National and International Perspectives

15. General Approaches to Domestic Application of Women's International Human Rights Law

Chapter 15 General Approaches to the Domestic Application of Women's International Human Rights Law Anne F.Bayefsky The Rationale International standards in the field of human rights are numerous and their quantity continues to grow rapidly. But the eagerness of the international community to set standards masks a deep-seated reluctance to design adequate corresponding implementation schemes. The consequence of this hypocrisy has been the establishment of international supervisory bodies with different enforcement tools. The Human Rights Committee set up by the International Covenant on Civil and Political Rights, with additional powers granted by an Optional Protocol, considers individual communications concerning violations of the Covenant. The power of individual petition is not available, however, with respect to violations of the Convention on the Elimination of All Forms of Discrimination Against Women(the CEDAW Convention), signed some 15 years later. In general enforcement machinery for the human rights treaties has tended to weakenin the 25 years since the Optional Protocol was signed. Perhaps nowhere is the gulf between standards and enforcement more evident than in the context of women's rights. There are over 20 treaties devoted specifically to women and issues related to sexual discrimination.1 All human rights treaties that contain provisions for equality or nondiscrimination and that list prohibited grounds of discrimination include "sex." The general derogation clause of the Covenant on Civil and Political Rights disallows derogations from the requirement of nondiscrimination on the basis of sex.2 And in particular, women's rights are the subject of a comprehensive treaty, the CEDAW 352 Anne F. Bayefsky Convention. Furthermore, states continue to concern themselves with drafting new standards in the context of women's rights, including the recently adopted declaration on violence against women. On the other hand, even the CEDAW Convention itself reflects the marginalization of women's rights with respect to the implementation of international human rights law. This is evident from a number of factors. First, although over 120 states have ratified the Convention, many have done soconditionally. Approximately 40 states have made a total of roughly 105 reservations and declarations to the Convention. Many of the substantive reservations are wide-ranging and profoundly affect the integrity of the Convention. For example, Article 2 of the Convention contains a general statement of the obligations of states parties, requiring them to pursue withoutdelay a policyof nondiscrimination using all appropriate means, including the amendment of national laws. It also requires the repeal of discriminatory penal provisions . But Bangladesh has made the following reservation: "The Government of... Bangladesh does not consider asbinding upon itself the provisions of Article 2 [and other articles] as they conflict with Shari'a law based on Holy Qur'an and Sunna."3 Other states such as Egypt, Iraq, and Libya have also made similar broad reservations.4 Such general reservations strike at the essence of the Convention. Other more specific reservations are directed, for instance, at the preservation of domestic laws that deny women equal rights with respect to the nationality of their children, equal rights to divorce, to choose a profession or occupation, and to acquire, dispose of, and manage property. Second, the Convention assigns the CEDAW Committee an annual meeting period of two weeks. Every other human rights treaty body meets for a greater length of time than the CEDAW Committee, specifically from three to nine weeks per year. The Torture Committee, for example, meets for four weeks a year, although the Torture Convention has about half the number of ratifications. Obviously this smaller allotment of resources to the supervisory organ of the CEDAW Convention dramatically reduces its ability to monitor implementation. Third, many states fail to adhere to their reporting obligations. Asof the end of its 1992 meeting, the Committee had examined 92 reports since itsbeginning in 1983; 112 reports were overdue. The Committee has taken the view that it can examine no more than 10 reports in its two-week sessions if it is to perform its task effectively. Fourth, the General Assembly has treated the Committee with disrespect. For example, in 1987 the CEDAW Committee requested that the UN system as a whole "promote or undertake studies on the status of women under Islamic laws and customs." This request was met with hostility in ECOSOC and the General Assembly. CEDAW was even General Approaches to Domestic Application of International Law 353 asked to review its decision. (Such pressures unfortunately seem to have succeeded in...