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SEMESTER V

POLITICAL SCIENCE III

UNITED STATES TRYST WITH CEDAW

Tanushree Arvind
BA0130073

THE TAMIL NADU NATIONAL LAW SCHOOL


TIRUCHIRAPPALLI

TABLE OF CONTENTS

TABLE OF CONTENTS ................................................................ 2


INTRODUCTION............................................................................3
KEY WORDS...................................................................................4
RESEARCH METHODOLOGY
o AIM AND OBJECTIVE.........................................................5
o RESEARCH QUESTIONS.....................................................5
o METHOD OF WRITING........................................................5
o REVIEW OF LITERATURE..................................................6
CEDAW IN THE US.........................................................................7
WHY NOT CEDAW?
o FOREIGN ENTANGLEMENT..............................................10
o NON DEMOCRATIC PARTIES............................................10
o RESERVATIONS AND CORE CLAUSES...........................12
o RATIFY HERE SO AS TO HELP THERE............................12
o THE RIP VAN WINKLE EFFECT........................................13
UNSEXING CEDAW
o IN BUILT ERROR..................................................................14
o WHY ONLY WOMEN? .........................................................16
o ABBOTT AND SNIDELS DEFINITION..............................16
o CERD v. CEDAW....................................................................17
o ARE WOMEN HUMAN? .......................................................18
INCLUSION IS THE SOLUTION.....................................................19
CONCLUSION...................................................................................20
REFERENCES....................................................................................21

INRODUCTION

In the last thirty years, a process of global norm creation in the field of gender equality has
taken place. The Convention on the Elimination of All Forms of Discrimination against
Women (CEDAW) marks a milestone in this process: it emerged as the first legally binding
international instrument for the protection of women's rights. The 180 states that have ratified
2

the Convention have interpreted their treaty obligations in diverse ways, ranging from
reluctance to active incorporation.
On December 18, 1979, the United Nations adopted the Convention on the Elimination of All
Forms of Discrimination against Women. The call for a Women's Treaty emerged from the
First World Conference on Women in Mexico City in 1975. Until the UN General Assembly
adopted the CEDAW, there was no treaty that addressed comprehensively women's rights
within political, cultural, economic, social, and family life.
CEDAW is touted to be the most comprehensive and detailed international agreement which
seeks the advancement of women. It seeks to establish rights for women in areas not
previously subject to international standards. The treaty provides a universal definition of
discrimination against women so that those who would discriminate on the basis of sex can
no longer claim that no clear definition exists. It also calls for action in nearly every field of
human endeavour: politics, law, employment, education, health care, commercial transactions
and domestic relations. Moreover, it also envisages a Committee to review periodically the
progress being made by its adherents.
This paper seeks to analyse the working of CEDAW and ascertain whether it is actually
making much of a change in the international arena. Further, this paper also discusses in
length about the United States stance on its non-ratification of CEDAW along with reasons
for the same. This paper also brings out how CEDAW, as a product of western liberal
thought, has pressurised several countries to ratify their recommendations even though they
are prejudicial to the domestic politics and culture.
At first, this paper presents a history of CEDAW from the perspective of the United States so
as to set a backdrop to analyse the reasons as to why it has not been ratified despite being the
only the democracy in the world to not do so.
The paper then presents arguments as to why the Convention, as a brainchild of western
feminist philosophy is not appealing to the other side of the world and has certain in built
flaws.
The paper concludes with certain suggestions to the Convention that can make it wider in its
scope.

Key Words
CEDAW, Feminist, Gfeminist, non-identitarian, anti-essentialist

RESEARCH METHODOLOGY

Aim and Objective


4

The aim of the paper is to analyse the working of CEDAW subjective to the political and
cultural situation in the United States and bring out the reasons for the vehement disapproval
of its ratification.
This paper also seeks to bring out the reasons as to why CEDAW is has not gained popularity
being a western liberal thought and having certain in built flaws in its operation and
approach.

Research Questions
Q1. What are the reasons for the non-ratification of CEDAW by the United States, which was
active in its formulation?
Q.2 Why is it that CEDAW has not gained a strong foothold in the domestic policy
formulation of countries like the CERD? Why is not wider in its scope?
Q3. Does the approach of CEDAW need some reworking? What are the recommended
changes?

Method of Writing
This paper undertakes a qualitative analysis of the above questions based on secondary materials. The
paper does not create any new data. Instead, it focuses on understanding the data available in light of
the above questions and interpreting them to the best knowledge of the researcher. The paper follows
a deductive method of reasoning.

Review of Literature
This paper does not subscribe to any one particular school of thought. Rather, it seeks
guidance from a number of authors belonging to different schools of thought in order to
analyse the efficacy of CEDAW. This paper has seeks to determine the efficacy of CEDAW

with an implicit liberal perspective. While analysing these concepts, the Researcher has relied
heavily on the arguments made by Lester Munson and Darren Rosenblum.
This paper therefore seeks enrichment by taking varied perspectives into account.

I.

CEDAW IN THE UNITED STATES

Heralded as a leading nation and a big daddy, one of the worlds most industrialised
nations, the Unites States of America has not ratified the Convention on Elimination of

All Forms of Discrimination against Women (CEDAW) and without ratification the U.S
is not bound by its provisions.
Constituted in the year 1979 by the United Nations General Assembly, it is often
described as an International Bill of Rights for Women.
CEDAW was signed by President Jimmy Carter guaranteeing gender equity within its
first year. And in addition to Carter, two other Presidents have tried to push for the
ratification and implementation of CEDAW but in vain. Spring of 1993 saw 68 Senators
signing a letter to President Clinton asking him to take necessary steps to implement
CEDAW. In 1994, the Senate Foreign Relations Committee (SFRC) held hearings on
CEDAW and recommended to be ratified. This recommendation however came with
several reservations, declarations and understandings (RUDs). This was an initiative of
the Clinton administration. The recommendation fell flat when Senator Jesse Helms, a
leading conservative and long time CEDAW opponent prevented the vote in the Senate.
In the early phase of his administration, George W. Bush looked favourably on the
ratification of CEDAW but was lobbied by Conservatives calling the Treaty anti-family
and radical feminist manifesto. With 12-7 vote, the Senate Foreign Relations Committee
approved for the Treaty to be ratified. But it was never sent to the Senate for advice and
full consent on ratification. The Obama administration supports ratification of CEDAW as
a top priority and fully supports a Senate action.
The International Bill of Human Rights lays down a set of comprehensive rights to which
all persons, including women are entitled. The Commission on the Status of Women
(CSW) has sought to define and elaborate on these general principles on nondiscrimination from the perspective of gender. A brainchild of the CSW, the key focus
areas included the preparation of recommendations relating to urgent problems requiring
immediate attention in the field of women's rights with the object of implementing the
principle that men and women should have equal rights, and the development of
proposals to give effect to such recommendations.
Also known as the womens equality treaty, CEDAW provides countries guidelines on
how to protect and promote the progress of women. By ratifying CEDAW, countries have
committed to end the gender bias and implement suitable domestic laws that would end
discrimination against women in all forms. It is the only international instrument that
comprehensively acknowledges womens rights within political, civil, cultural, economic
7

and social life. The Convention is the only human rights treaty that affirms the
reproductive rights of women. It targets at culture and tradition as influential forces in the
formation of gender roles and family relations.
The status of human rights for all in the U.S was reviewed by UN Member States at the
Human Rights Council (HRC) in a process known as the Universal Periodic Review.
The U.S government submitted an official report along with stakeholder information to
bring to for the issues that need addressing. It was one of the last opportunities to pressure
the Obama Government to meet international human rights obligations. Recommended by
participating member states, CEDAWs ratification gained unanimous consent from all
stakeholders.
Opposition for CEDAW stems from conservative groups who believe that it will
challenge the laws of U.S and threaten the social and religious thread that holds the
country together. Besides undermining traditional family values, those against ratification
believe that it would go against the free market system if the concept of equal pay for
equal work is recognised. Backed by religious right, Home School Legal Defence
Association and Concerned Women for America believe that CEDAW would negate
parental rights and create a possible back door for ERA (Equal Rights Amendment)
Feminists.
By not ratifying CEDAW, the United States walks hand in hand with countries like Iran,
Somalia, Sudan, and South Sudan.

Pluralistic countries like Malaysia have used CEDAW to give their women the choice to
opt out of a system of personal law that might discriminate against them shows the
relevance and importance of the Treaty.
To circumvent the States unwillingness to ratify CEDAW, the Cities for CEDAW
campaign was launched to push cities to pass laws to eliminate gender bias. San
Francisco and Los Angeles are currently the only two cities to have passed an ordinance
with regard to CEDAW. 2
1 Amrita Bamrah, 34 YEARS AFTER SIGNING, UNITED STATES STILL HASNT
RATIFIED CEDAW, Available at http://www.unfinishedbusiness.org/20140717-34years-after-signing-united-states-still-hasnt-ratified-cedaw/
2 Available at http://citiesforcedaw.org/
8

It is also pertinent to note that the U.S played an important role in drafting CEDAW. A
Republican woman, a Nixon appointee, Patricia Hutar, persuaded the United Nations to
draft CEDAW. President Ford sent a bipartisan delegation comprising of accomplished
American women to Geneva so as to help draft the initial text of CEDAW.3 It is to be
noted that Hutars skill as a negotiator was critical in persuading Communist countries in
approving the Treaty. The U.S ranks 65 in the wage equality for similar work according to
World Economic Forum. The United States ranks in the bottom half when it comes to the
percentage of women representation in national parliaments. Although women
participation is highest in the Congress now, it still accounts to only 19.4% when the total
female population is 51%.
Amnesty International has also recommended that the U.S should ratify CEDAW and use
it to promote womens human rights worldwide. It has even released a paper debunking
the various myths that have thwarted any effort to ratification. 4

II.

WHY NOT CEDAW?

3 A FEW GOOD WOMEN: ADVANCING THE CAUSE OF WOMEN IN GOVERNMENT, 1969-74,


HTTPS://WWW.LIBRARIES.PSU.EDU/PSUL/DIGITAL/AFGW/BIOS/HUTAR.HTML

AVAILABLE AT

4 Amnesty International, A FACTSHEET ON CEDAW TREATY FOR RIGHTS OF WOMEN,


available at https://www.amnestyusa.org/sites/default/files/pdfs/cedaw_fact_sheet.pdf
9

Its hard to say that youre not for womens rights in todays world where people everywhere
are fighting for their rights and countries across the world are willing to protect those who are
standing up for democracy. The raging debates over which country should take what
proportion of the refugees from Syria is a testament to the same. Many across America,
largely feminists believe that womens rights will be advanced by the ratification by the U.S
Senate of the Convention on the Discrimination of All forms of Discrimination against
Women. A compelling rhetoric indeed, but it is imperative to see the other side of this much
debated Convention.
1. Foreign Entanglements?
George Washingtons farewell address makes a recommendation avoid foreign
entanglements. 5
Washington did not urge Americans to avoid involvement in the world. He reminded his
countrymen that the timeless principles of democracy and freedom are too costly a price to
pay so as to make unwise compromises on international diplomacy and give-and-take.
According to Lester Munson6, this is exactly that sort of an entanglement which Washington
warned against.
The CEDAW Committee that reviews the status of women in countries that are parties to the
Convention and makes recommendations are viewed as binding. Having a dispute resolution
mechanism and a strict enforcement policy are one of the main reasons attributed to the
success of WTO in regulating free trade in the international arena. However, in this case,
although the objective is appreciable, the mechanism by which it works is deeply flawed.
2. Non Democratic parties
The Committee members are elected by CEDAW parties. One of the main arguments against
the working of the Committee is the presence of several non-democratic regimes like that of
China, Cuba, Iraq, Libya, North Korea, Saudi Arabia and Myanmar (Burma). In other words,
5 WASHINGTONS FAREWELL ADDRESS TO THE PEOPLE OF UNITED STATES,
Available at http://www.gpo.gov/fdsys/pkg/GPO-CDOC-106sdoc21/pdf/GPO-CDOC106sdoc21.pdf
6 CEDAW: ITS OLD, IT DOESNT WORK AND WE DONT NEED IT, Human Rights
Brief,Article 7, Volume 10, Issue 2 (2003)

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members of the Committee come from environments which do not support basic human
rights.
Another point pertinent to note here is the fact that, another party to CEDAW is Nigeria
where a woman was recently sentenced to death by stoning for the crime of adultery. 7
Being a liberal democracy, a country whose presence in any dispute is considered as a
harbinger of democracy and freedom, the question most Americans are asking is why they
would want nations such as these electing members who formulate recommendations and
policies that would govern their internal politics and policies.
These members do serve as individuals and not as representatives of their nations but there is
no assurance that their judgements will not be clouded by their domestic politics.
One need not look to such marginal regimes for troubling conflicts of interest, however.
France and Germany are both signatories to CEDAW and have citizens on the Committee.
Yet, the United States has serious problems with both nations on the issue of child
abductions. There are numerous incidents of French and German parents bringing their
American children, in violation of American divorce decrees, to France and Germany where
they are protected by local courts in contravention of international conventions. Indeed, these
nations also refuse unconditional extradition of people who murder our women and girls. We
should not pretend that these nations, with which we otherwise have so much in common, do
not have ulterior motives in their dealings with the United States in international fora.
The problem of involvement of non-democratic nations in the policy formulation by CEDAW
becomes highly problematic when they begin questioning democratic nation states. In 1999,
the Committee took issue with Irelands pro-life policy and pressed for a national dialogue
on restrictive abortion laws. 8
Irelands policy on abortion laws are the result of a democratic process which only the most
defiant activist can quibble about.

7 Michelle Faul, Global News, NIGERIAN GIRLS, WOMEN STONED TOM DEATH BY
BOKO HARAM AS RESCUERS NEARED
8 Report by the Convention on the Elimination of All Forms of Discrimination
against Women, Thirty-third session, 22 July 2005
11

The commentary of the Committee, which to some extent is the product of non-democratic
institutions, cannot augment the democratic nature of Irelands existing policy.
3. Reservations and Core Clauses
Another fatal flaw in the working of the Committee is their interpretation of the convention.
The convention, unlike more recent UN treaties, does not itself prohibit reservations, the
normal mechanism by which nations protect themselves from objectionable treaty provisions.
The CEDAW Committee has, however, announced that Article 2 of CEDAW, which
constitutes the broad, over-reaching central obligation under the treaty, is central to the
objects and purpose of the treaty, therefore no reservations to this Article are permissible,
even for national, traditional, religious or cultural reasons. . . . The Committee has also
announced that, in addition to Article 2, Article 16 (family roles and marriage) is a core
provision of the treaty. According to this interpretation, a state party cannot protect its
domestic laws or constitution through the use of reservations.
Even if such reservations are allowed, there have been cases where such reservations have
rendered the very convention futile and accord the convention absolutely no importance.
Such is the case of Saudi Arabias overreaching reservation which states In case of
contradiction between any term of the Convention and the norms of Islamic law, the Kingdom
is not under the obligation to observe the contradictory terms of the Convention.
In response to this, several western-European countries have submitted their responses along
the lines of the one made by Denmark to Saudi Arabia:
The Government of Denmark finds that the general reservation with reference to the
provisions of Islamic law is of unlimited scope and undefined character.
Consequently, the Government of Denmark considers the said reservations as being
incompatible with the object and the purpose of the Convention and accordingly inadmissible
and without effect under international law9

4. Ratify here so as to help people there


9 Beth A.Simmons, Frank Dobbin, Geoffrey Garrett -THE GLOBAL DIFFUSION OF
MARKETS AND DEMOCRACY, Cambridge University Press (2008)
12

The Bush administration is busy devastating third-world women. . . . It is trying to block a


landmark international treaty on the rights of women, even though the State Department
initially backed it. CEDAW would make no difference in America but would be one more tool
to help women in countries where discrimination means death.10
This argument is false because the real threat to womens rights in Saudi Arabia or
Mozambique or Nigeria is poverty, corruption and the lack of democracy. None of these
issues have been addressed by CEDAW.
5. The Rip Van Winkle Effect
Agreements between sovereign nations are binding only if both parties to the agreements are
placed at advantaged positions. In other words, both parties should gain absolutely.
Theoretically, a nation must see compliance to a convention as benefitting it.
Treaties at best are complied with so long as interest requires their fulfilment. Consequently,
they are virtually binding on the weaker party only; or, in plain truth, they are not binding at
all. The great American writer Washington Irving.
CEDAW was signed in year 1980, a time when the Cold War was at its peak. The war
between the two ideologies of liberal democracy and totalitarianism influenced every
movement and every effort made in the international arena, particularly the organs of the UN.
Whatever justification existed for CEDAW then is gone now.11
Awakened a generation later, like Rip Van Winkle, CEDAW has lost its relevance. While
terrorism and rogue nations are posing an imminent threat today, there definitely are more
pressing issues to be addressed.
There is also the danger that large groups of nations, alarmed (rightly or wrongly) at the
enormous relative power of the United States, will come together in opposition to American
interests and seek a new balance of power.
This phenomenon is widely recognised by political scientists as the act of balancing, which
is manifest in the UN. Quoting an example to substantiate this issue is when the United States
10 Nicholas Kristoff and Sheryl Wundunn, HALF THE SKY: TURNING INTO
OPPORTUNITY FOR WOMEN WORLDWIDE (2008)
11 Lester Munson, supra note 6, at 10
13

was dismissed from the UN Human Rights Commission by a combination of European


democracies and Eastern dictatorships. The Commission has proved to be a inefficient since
it is routinely unable to condemn the deplorable treatment of citizens in Cuba and China. It is
therefore only logical to expect that the working of CEDAW in the present times will be
equally dubious and feckless.
As a consequence, the following questions come to the fore:

Should non-democratic regimes like Iraq, Libya and North Korea be allowed to

even indirectly- exercise control over American domestic law and custom?
Can the citizens of the worlds greatest economy be instrucyed by a body whose

members are no way close to having a liberal democratic set up?


And most importantly, has the ratification of CEDAW by any country made a positive
impact in the alleviation of poverty, better education or strengthen healthcare?

Most Americans would say no to these questions.

III. UNSEXING CEDAW


CEDAW has faced substantial criticism for being an insignificant treaty. 12
Its weakness arises from the mistaken diagnosis: women may be some of the victims of
inequality, but gender disparities should be the focus of the convention. 13
CEDAW has often been analysed and criticised from the point of view of Governance
Feminism engaging in the governance of a variety of regulatory forms contemplated from
states to quasi-state institutions. Governance Feminists rely on an excessive criminalisation of
sexuality thus imposing havoc on men. 14
12
13 Darren Rosenblum, UNSEX CEDAW: WHATS WRONG WITH WOMENS
RIGHTS, Available at
http://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?
article=1006&context=iclc_papers
14 Janet Halley, SPLIT DECISIONS: HOW AND WHY TO TAKE A BREAK FROM
FEMINISM (2006)
14

1. In built errors
CEDAWs women centric approach is further entrenching the men-woman disparity in
international law when the goal of gender equality will be better served if such categories are
eliminated themselves. This calls for an analysis from an anti-essentialist perspective.
Further, CEDAWs soft law status and weak enforcement mechanism cripple its working.
This has reduced CEDAW to a mere reporting agency. While reporting does help in
measuring compliance, it does not force change.
States compliance was contemplated to be measured through two procedures, the interstate
procedure15 and compliance procedure. The interstate procedure contemplates that if any
dispute arises out of differing interpretations and applications, they are first put to arbitration
to negotiate a solution. In case of failure of arbitration, the matter is referred to the
International Court of Justice (ICJ) for the verdict. However, most states adopt the policy of
non-intervention in the internal affairs of other States and therefore do not initiate any
proceedings. Further, States can refuse to be a part of any procedure, making this the biggest
flaw in the working and enforcement of CEDAW. This brings out the cause for the sad reality
that no nation state has ever engaged in any interstate procedure.
The two week time frame within which all CEDAW reports are to be scrutinised makes it
impossible for a thorough research. Thereby, making its recommendations futile on the
grounds of lack of substantial authority. This led to the forty third session of the Commission
on the Status of Women (CSW) to adopt the Optional Protocol to the Womens Convention in
March 1999. This gave individual and groups the right to lodge complaints if the States
violate the terms of the Convention and allows CEDAW to conduct inquiries into serious
abuses of womens human rights. However, all this requires the consent and cooperation of
the State. The limited efficacy of the Protocol is evidenced by the fact that since the
inception of the protocol, only 10 cases have been decided. 16

15 Article 29- Convention on the Elimination of all forms of Discrimination against


Women
16 See Ms. A.S. v. Hungary, Convention on Elimination of All forms of
Discrimination Against Women, Communication No. 4/2004, U.N. Doc.
CEDAW/C/36/D/4/2004
15

Despite the Protocol, CEDAW has no sanctioning power. Even if it has the power to conduct
inquiries, it cannot force compliance. Soft law ceases enactment since States do not actually
cede their enforcement power. It eases the concerns of the State through reservations, escape
clauses and imprecise commitments. CEDAW has been ratified with the most number of
reservations when compared to any other human rights treaty to date. 17
CEDAW has been acknowledged by several countries with respect to womens rights matters
but it does not provide a workable solution. This is validated by the fact that 45 countries
which have ratified and acceded to the Convention have laws that explicitly discriminate
against women.
2. Why only women?
Initial women centric approach to CEDAW was necessary to define the detrimental effects of
sexism. But, what did women mean in 1979 when it was drafted? CEDAW does not provide
any definition of women which conveys a presumption of universality: it references a
biological category of females which is a universal one (womankind). During the formulation
of CEDAW, women was not a contested term. The drafters used the term without knowing
that it would limit its efficacy. The 1970s saw the rise in womens rights activists asserting
that international law needed to focus on women and their dismal experiences with sexism,
thereby serving as the key to second wave feminist goal of recognising women as proper
subjects of human rights. 18
The use of the word women avoids several cases of disagreements and poor ratification and
acceptance as is common in effecting contracts and settlements, where parties operate within
a field of vagueness so as to come to a consensus.
Perhaps CEDAWs silence in defining women furthered their goal of widespread ratification,
but it was at the cost of reifying popular and implicitly sexist, understandings of women. 19

17 Jennifer Riddle, MAKING CEDAW UNIVERSAL at 605 , Of the United Nations


human rights treaties, CEDAW has attracted the greatest number of reservations
with the potential to modify or exclude most, if not all, of the terms of the treaty
18 See Rosenblum, note 13, at 13
19 See Rosenblum, note 13, at 13
16

3. Abbott and Snidals definition20


The above definition supposes that international law derives its legitimacy from three
elements of the relationship between states and international bodies: obligation, precision and
delegation. The neutrality and the universality of the term used bound the parties to sign the
treaty and created an obligation to report to the Committee. The biological specificity gave
parties the ambit within which precise agreements could be entered into. CEDAW, being a
soft law calls for some delegation by states to the international body which presupposes the
use of an uncontested term that would serve as the subject of the Convention.
Critical race feminists and black feminists have questioned the use of the word women. A
comparative research has highlighted trenchant flaws in the universalistic conception of
women. Indeed, biological commonalities exist across women in different countries but the
experiences of women vary from one country to another, one culture to another and even
from one class to another. Work and family roles assumed by women also varies across these
axes. Therefore, the socio-economic factors that define the power relationship between men
and women vary and CEDAWs universalistic approach does not account for the impact that
these contingencies create in the international human rights sphere.
CEDAW can be viewed as Governance Feminism whose proponents called as GFeminists
exist not as a particular group of humanity but rather in their own universe. They assume
that a womans position as a victim is ubiquitous. In such an approach, the proponents often
assume that women play a central role and the broader issues of gender, and the role of men
in gender issues are at worst invisible or secondary.
CEDAWs universalised notion of women attempts to move the world from hundreds of
different gender systems to a universal one, which is neither pragmatic nor realistic. The
establishment of womens rights isolates, rather than emphasizes the role of gender in human
rights discourse.
This minority human rights model is inappropriate since it represents only half of humanity
and thus situates womens issues outside human rights discussions and renders men as
external to core debates over gender inequality.
4. CERD v. CEDAW
20 Kenneth W. Abbott & Duncan Snidal, HARD AND SOFT LAW IN INTERNATIONAL
GOVERNANCE, IN LEGALISATION AND WORLD POLITICS
17

Both these conventions address rights at a universal level and are instruments to supplement
two crucial U.N covenants: the International Covenant on Economic, Social and Cultural
Rights and the International Covenant on Civil and Political Rights.
CERD brings out the minoritarian and identitarian outlook of CEDAW by addressing
discrimination as a whole and not a category of its victims. This methodology of CERD
allows it to focus the oppression and all its iterations rather than focussing on a racialised
group. In contrast to this, CEDAWs exclusive approach to women has swayed it away from
the broader picture of gender inequality resulting in marginalisation.
Again, both the conventions seek to achieve international cooperation in promoting and
respecting human rights and fundamental freedom to all people without any distinction on the
basis of race, sex, language or religion.
But, they diverge at the definition of their key concept. CERDs definition is centred on racial
discrimination21 and does not single out any group while CEDAW targets a specific group
women.
It is an agreeable point of contention that feminist universalists could point out to the choice
of a non-identitarian language as a natural consequence of the complex phenomenon of racial
difference and its cultural multiplicity.
However, races complexity does not belittle that of gender beyond the binary of men and
women. Gender comprises of many factors like, biological, cultural and social, which when
combined together yield in multifarious results. Thus juxtaposing CEDAWs formulation
with that of CERD is valid.
5. Are women human?
CEDAWs broad definition misdiagnoses womens suffering as discrimination rather than a
pervasive set of social relations, one that is pervasive across the population and not limited to
21 Article 1 of the CONVENTION ON THE ELIMINATION OF RACIAL
DISCRIMINATION, In this Convention, the term racial discrimination shall mean
any distinction, exclusion, restriction or preference based on race, colour,
descent or national or ethnic origin which has the purpose of effect of nullifying
or impairing the recognition, enjoyment or exercise, on equal footing, of human
rights and fundamental freedoms in the political, economic, social, cultural or
any other field of public life
18

a specific set of victims. It envisions a class of passive victims who are the targe of
discrimination from an unspecified group.
Catharine MacKinnon recently asked Are women human?22 And CEDAWs answer, by its
existence outside of human rights, is that they are not.

IV.

INCLUSION IS THE SOLUTION

The use of the word women instead of gender or sex has eaten away the efficacy of an
instrument like CEDAW. CEDAW sits at the core of international efforts which victimise
women so as to accord protection to them.
The focus on women by CEDAW leaves the transgender community in the lurch. This
posits some very relevant questions. Is a man who becomes a woman a woman in the eyes
of CEDAW? What is the status of a woman who becomes a man? Transgender individuals
lack the social position ascribed to men as per the social binary neither do they have a solid
recourse accorded to women as promulgated in CEDAW.
Similar to transnational laws, which include within its ambit states, non-state actors and
interaction between domestic legal structures and international ones thereby fostering
interactions and harmonisation of legal systems, CEDAW as an international law dealing with
women, sex and gender should be trans-ed to include all sexes, even those which fall
outside the sex binary. 23
However, the largest sex identity excluded by CEDAW is men.
CEDAW references men at certain instances but it is only to emphasise the equality between
men and women. Men therefore are considered as a yardstick, and progress in womens
22Mackinnon, ARE WE HUMAN? : AND OTHER INTERNATIONAL DIALOGUES (2006)
23 See Rosenblum, note 13, at 47
19

rights is measured in comparison to men. Although Article 5(a) seeks to protect men and
women from the gender stereotyping, it is an isolated one since drafters have not brought men
into the picture anywhere else but in this provision. Due to its isolated presence, it loses its
value and it is therefore safe to say that CEDAW is largely silent on mens rights and further
entrenches the issue of sex or gender binary.
It must be understood that men do not perpetuate gender inequality. It is the societal structure
that causes discrimination. Further, men also fall prey to sexism. Therefore, to eliminate
discrimination, both men and women have to fight the social structures through concerted
efforts. CEDAWs title and text should include men. Mens suffering has become invisible to
CEDAW.
Stereotyping harms one gender by rigidifying the role expectations of another gender.

V. CONCLUSION
The questions as to whether CEDAW has made an accurate or effective impact is answered in
the negative. Although the goals might be laudable, CEDAW is not accurate enough since it
is not inclusive of men, women who are NOT victims and transgender people. And CEDAW
is not effective because it still has not yielded any broad transformation as envisaged.
And this transformation can never be achieved as long as the focus remains to women who
are victims.
As long as CEDAW excludes from its purview violations of rights of men, any effort to
enhance womens rights will be counterproductive.

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REFERENCES
Books
o A. Heywood, GLOBAL POLITICS, 321 (2011)
o Beth A. Simmons, Frank Dobbin, Geoffrey Garrett, THE GLOBAL DIFFUSION OF
MARKETS AND DEMOCRACY, March 2008
o Nicholas Kristoff and Sheryl Wundunn, HALF THE SKY: TURNING INTO
OPPORTUNITY FOR WOMEN WORLDWIDE (2008)

Articles
o Mackinnon , ARE WE HUMAN? : AND OTHER INTERNATIONAL DIALOGUES
(2006)
o Kenneth W. Abbott & Duncan Snidal, HARD AND SOFT LAW IN
INTERNATIONAL GOVERNANCE, IN LEGALISATION AND WORLD
POLITICS
o Rosenblum, UNSEX CEDAW: WHATS WRONG WITH WOMENS RIGHTS
o Jennifer Riddle, MAKING CEDAW UNIVERSAL at 605 , Of the United Nations
human rights treaties, CEDAW has attracted the greatest number of reservations with
the potential to modify or exclude most, if not all, of the terms of the treaty
o Michelle Faul, Global News, NIGERIAN GIRLS, WOMEN STONED TOM DEATH
BY BOKO HARAM AS RESCUERS NEARED
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o CEDAW: ITS OLD, IT DOESNT WORK AND WE DONT NEED IT, Human
Rights Brief, Article 7, Volume 10, Issue 2 (2003)
o Amrita Bamrah, 34 YEARS AFTER SIGNING, UNITED STATES STILL HASNT
RATIFIED CEDAW
o A FEW GOOD WOMEN: ADVANCING

THE

CAUSE

OF

WOMEN

IN

GOVERNMENT,

1969-74,

Reports
o Report by the Convention on the Elimination of All Forms of Discrimination against
Women, Thirty-third session, 22 July 2005

Factsheet
o Amnesty International, A FACTSHEET ON CEDAW TREATY FOR RIGHTS OF
WOMEN

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