SEMESTER V POLITICAL SCIENCE III

UNITED STATES’ TRYST WITH CEDAW

Tanushree Arvind

BA0130073

THE TAMIL NADU NATIONAL LAW SCHOOL

TIRUCHIRAPPALLI

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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 SNIDEL’S DEFINITION..............................16

o CERD v. CEDAW....................................................................17

o ARE WOMEN HUMAN? .......................................................18

INCLUSION IS THE SOLUTION.....................................................19

CONCLUSION...................................................................................20

REFERENCES....................................................................................21

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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

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.

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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

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RESEARCH METHODOLOGY

Aim and Objective

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.

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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.

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I. CEDAW IN THE UNITED STATES

Heralded as a leading nation and a big daddy, one of the world’s 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 non-

discrimination 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

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principle that men and women should have equal rights, and the development of

proposals to give effect to such recommendations.

Also known as the women’s 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 women’s rights within political, civil, cultural, economic

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, CEDAW’s 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. 1

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.1 Amrita Bamrah, 34 YEARS AFTER SIGNING, UNITED STATES STILL HASN’T RATIFIED CEDAW, Available at http://www.unfinishedbusiness.org/20140717-34-years-after-signing-united-states-still-hasnt-ratified-cedaw/

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To circumvent the State’s 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

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 Hutar’s 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 women’s human rights worldwide. It has even released a paper debunking

the various myths that have thwarted any effort to ratification. 4

2 Available at http://citiesforcedaw.org/3

A FEW GOOD WOMEN: ADVANCING THE CAUSE OF WOMEN IN GOVERNMENT, 1969-74, AVAILABLE AT HTTPS://WWW.LIBRARIES.PSU.EDU/PSUL/DIGITAL/AFGW/BIOS/HUTAR.HTML

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

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II. WHY NOT CEDAW?

It’s hard to say that you’re not for women’s rights in today’s 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 women’s 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 Washington’s 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

5 WASHINGTON’S FAREWELL ADDRESS TO THE PEOPLE OF UNITED STATES, Available at http://www.gpo.gov/fdsys/pkg/GPO-CDOC-106sdoc21/pdf/GPO-CDOC-106sdoc21.pdf6 CEDAW: IT’S OLD, IT DOESN’T WORK AND WE DON’T NEED IT, Human Rights Brief,Article 7, Volume 10, Issue 2 (2003)

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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,

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 Ireland’s pro-life policy and pressed for a ‘national dialogue

on restrictive abortion laws’. 8

Ireland’s 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 NEARED8 Report by the Convention on the Elimination of All Forms of Discrimination against Women, Thirty-third session, 22 July 2005

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The commentary of the Committee, which to some extent is the product of non-democratic

institutions, cannot augment the democratic nature of Ireland’s 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 Arabia’s 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 law”9

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)

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“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 women’s 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

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 10 Nicholas Kristoff and Sheryl Wundunn, HALF THE SKY: TURNING INTO OPPORTUNITY FOR WOMEN WORLDWIDE (2008) 11 Lester Munson, supra note 6, at 10

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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 world’s 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

1. In built errors

CEDAW’s 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.

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13 Darren Rosenblum, UNSEX CEDAW: WHAT’S WRONG WITH “WOMEN’S RIGHTS”, Available at http://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=1006&context=iclc_papers14 Janet Halley, SPLIT DECISIONS: HOW AND WHY TO TAKE A BREAK FROM FEMINISM (2006)

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Further, CEDAW’s ‘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 Women’s 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 women’s 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

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 women’s rights matters

but it does not provide a workable solution. This is validated by the fact that 45 countries

15 Article 29- Convention on the Elimination of all forms of Discrimination against Women16 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/4/200417 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”

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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 women’s 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 CEDAW’s 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

3. Abbott and Snidal’s 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 18 See Rosenblum, note 13, at 1319 See Rosenblum, note 13, at 1320 Kenneth W. Abbott & Duncan Snidal, HARD AND SOFT LAW IN INTERNATIONAL GOVERNANCE, IN LEGALISATION AND WORLD POLITICS

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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 CEDAW’s 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 woman’s 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.

CEDAW’s 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 women’s 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 women’s issues outside human rights discussions and renders men as

external to core debates over gender inequality.

4. CERD v. CEDAW

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, CEDAW’s 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.

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But, they diverge at the definition of their key concept. CERD’s 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, race’s 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 CEDAW’s formulation

with that of CERD is valid.

5. Are women human?

CEDAW’s broad definition misdiagnoses “women’s” suffering as discrimination rather than

a pervasive set of social relations, one that is pervasive across the population and not limited

to 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 CEDAW’s answer, by its

existence outside of human rights, is that they are not.

IV. INCLUSION IS THE SOLUTION

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’22Mackinnon, ARE WE HUMAN? : AND OTHER INTERNATIONAL DIALOGUES (2006)

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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 women’s

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 men’s 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. CEDAW’s title and text should include men. Men’s suffering has become invisible to

CEDAW.

Stereotyping harms one gender by rigidifying the role expectations of another gender.

V. CONCLUSION

23 See Rosenblum, note 13, at 47

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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 women’s rights will be counterproductive.

REFERENCES

20

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: WHAT’S WRONG WITH “WOMEN’S 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

o CEDAW: IT’S OLD, IT DOESN’T WORK AND WE DON’T NEED IT, Human

Rights Brief, Article 7, Volume 10, Issue 2 (2003)

o Amrita Bamrah, 34 YEARS AFTER SIGNING, UNITED STATES STILL HASN’T

RATIFIED CEDAW

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

74,

Reportso Report by the Convention on the Elimination of All Forms of Discrimination against

Women, Thirty-third session, 22 July 2005

21

Factsheeto Amnesty International, A FACTSHEET ON CEDAW – TREATY FOR RIGHTS OF

WOMEN

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