Strategies Meeting 1998
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Strategies Meeting 1998
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The Canadian CEDAW Strategies Meeting Sunday, November 22
- Tuesday, November 24, 1998 This paper was written by Shelagh Day in collaboration with Andrée Côté. Commissioned for the Canadian CEDAW Strategies Meeting, the opinions are those of the author, disseminated to stimulate thought and discussion among those attending this Meeting. The paper will be posted to an online conference in December, 1998, to encourage input from those unable to attend the Meeting. This Meeting has been facilitated through the International Women's Rights Project of York University Centre for Refugee Studies, the Centre for Feminist Research and the Ad Hoc NGO Advisory Group, chaired by METRAC. For more information, please contact
lkaraian@yorku.ca
This is an important moment for women's human rights, an important time to develop our capacity to work at the international, as well as the domestic, level. There are several reasons for this. Women are being affected negatively by the rush to liberalize trade and investment, to form regional trading blocs, and to implement a hegemonic formula for economic prosperity which requires downsizing governments, and diminishing the scope and strength of social programs. Through these economic processes, governments around the world appear to be relinquishing sovereignty, including their ability to protect the human rights of women by regulating corporate conduct. Women, in future, may need to rely more on international human rights instruments and agencies for the protection and promotion of their human rights. At the same time, there is a growing recognition in the United Nations system that non-governmental organizations (NGOs) have an important role to play, and that the United Nations must become more open to their participation. National NGOs are now permitted to apply for consultative status at the United Nations. It is no longer necessary to be an "international" NGO like Amnesty International or International Women's Rights Action Watch, focussed on human rights in many different parts of the world. This broadens the opportunities for women to participate in United Nations deliberations. It also creates an opportunity for national women's NGOs to use United Nations fora to increase the scrutiny of implementation of international human rights standards in their own countries. In short, there is a need for women in every country to work at both the national and the international levels to ensure that human rights are respected and protected, and there appears to be a new opening for national women's NGOs to work in United Nations fora. 1. Using and Interpreting CEDAW There are four ways to use CEDAW: 1. As a political advocacy tool. This means using it to persuade federal and provincial governments to take steps that will advance the equality of women, and to refrain from taking steps that will retard or halt that advancement. This requires CEDAW literacy, that is, a general level of knowledge among Canadian women and women's NGOs about CEDAW, and the aspects of it that can be used effectively for lobbying purposes in the Canadian context. 2. As an instrument for reviewing Canada's performance on advancing the equality of women. Under the terms of CEDAW, Canada as a signatory to the treaty must file periodic reports on its compliance. These periodic reviews create a political opportunity for Canadian women to examine, comment on, and criticize Canada's performance, and to draw government and public attention to Canada's strengths and its weaknesses. 3. As an aid to interpreting the Charter's guarantee of equality. The former Chief Justice of the Supreme Court of Canada, Brian Dickson said:
He said further that:
So far then, the law on the relationship between international human rights treaties and domestic human rights guarantees is that Canada's international human rights obligations have two roles to play as aids to the interpretation of Charter rights. First, they are relevant to defining the content of Charter rights. Second, they may be useful in defining the scope of limits that can be imposed on them under s. 1 of the Charter. More particularly, the fact that a value has the status of an international human rights obligation is to be taken as indicative of a high degree of importance attached to that objective, in the context of s. 1 analysis. 4. As an addition legal forum for appeal of any women's case that has failed in domestic courts, once the Optional Protocol to CEDAW has been finally drafted and adopted. Given these four ways to use CEDAW, women in Canada need to think carefully about how to use CEDAW most effectively to advance their equality. Looking at CEDAW simply as law, we are not in the same position as, for example, women in Latin America where there is little jurisprudence related to women's rights. In those countries, CEDAW, and general recommendations made by the CEDAW Committee interpreting the treaty, are being used by women's legal advocates as doctrine when they appear in courts. In Canada, the idea of substantive equality is more developed and has some purchase in the courts. Nonetheless, the challenge is to develop ways to invoke CEDAW in a way that will strengthen domestic Canadian guarantees of equality for women. Looking at CEDAW as a tool for political advocacy, CEDAW's power is that it articulates the positive obligations of governments to "eliminate all forms of discrimination against women," obligations that Canada has underwritten by signing on to the treaty, and that are binding on federal, provincial and territorial governments. CEDAW can have an important function in political discourse, as a standard against which to assess political and economic decisions, and as a committment that governments have promised to honour. Women's increased involvement in using international human rights instruments both as law and as tools for political advocacy is essential. However, an important part of this work is to look critically at the instruments and determine how they can be made to assist women in Canada, and in other countries. A. Giving CEDAW A Substantive Equality Reading Frankly, CEDAW is a badly drafted Convention. It was concluded hastily in order to produce a concrete result for International Women's Year in 1979. It is also twenty years old and much has happened to alter general understanding of the nature of discrimination and what is required to change entrenched patterns of subordination since it was written. There are two ways in which CEDAW is badly drafted: 1)some of its provisions too easily lend themselves to a formal equality reading; and 2) the specificity of some provisions implies that issues that are not addressed are omitted on purpose. In its simplest manifestation, formal equality asserts that equality can be achieved by treating women and men identically, and in particular by treating them identically on the face of laws that apply to them. Thus, formal equality with respect to access to public office is satisfied as long as there are no laws which, on their face, bar women, or men, from standing for, or holding office. By contrast, substantive equality asserts that equality can be achieved only by taking those steps that will make women equal in their real conditions. Consequently, substantive equality with respect to access to public office will only be satisifed when women are equally able to exert the political influence that public office carries. Article 12 of the Convention provides an example of a provision that poses a problem by its language. Article 12 states :
This Article, read in an isolated fashion, seems premised on the assumption that what is needed to eliminate discrimination in the field of health is to treat women the same as men, except, of course, when women's biological difference is showing, that is during pregnancy and childbirth. This oversimplified version of equality could lead to ignoring the well-known fact that women's health issues and needs are different from men's, not just at the time of pregnancy and childbirth, and that equality for women in the field of health requires responding to the realities and particularities of women's health and women's lives. Both the flaws of formal equality language and of overspecificity/omission can be addressed, but addressing them must be a threshold strategy for women, if CEDAW is to be of assistance. We must be sure that we give the Convention a substantive equality reading, and that we take steps to ensure that the CEDAW Committee and governments also give it a substantive equality reading. Women in Canada are well-schooled in doing this feminist work because we have been thinking for the last twenty years about how to read both statutory human rights laws, and s. 15 of the Charter, in a manner that will lead to equality in women's real conditions. There is an answer to the old-fashioned formal equality language of some parts of CEDAW. The Preamble, and the first six Articles of CEDAW, which set out the general principles and undertakings of the Convention, preclude giving the Convention a simple same treatment or formal equality reading. They do so for these reasons: a) Recognition of Systemic Subordination One of CEDAW's most important strengths is that it is a Convention about women's equality. It is not a gender neutral instrument. The Convention acknowledges at the outset that women are an oppressed and subordinated group in all societies, and states that the Convention's goal is to bring an end to this oppression. The collective dimension of women's oppression is explicitly acknowledged in Articles 5 and 6 of CEDAW which address two different ways in which women as a group are subordinated 1) through the social construction of stereotyped and subservient roles and 2) through the commodification of their sexuality. b) Explicit Rejection of Formal Equality The Preamble to the Convention explicitly acknowledges that formal guarantees of equality have not been successful in eliminating women's inequality. It states that despite the existence of various treaties guaranteeing equal rights to women, "extensive discrimination against women continues to exist." The explicit purpose of the Convention is to ensure that measures are adopted that will "[eliminate] ... discrimination in all its forms and manifestations." c) Obligation to Ensure that Rights Can be "Enjoyed" CEDAW requires States Parties, or signatories to the Convention, to enact legal guarantees of equality and to provide the means of fully enforcing them. It also obliges States Parties to guarantee women the "enjoyment" of these legal rights. "Enjoyment of the rights" means actually experiencing the benefit of the right, having the content of the right made real in one's life. d) Obligation to Ensure Practical Realization of the Right to Equality CEDAW also requires States Parties "to ensure, through law and other appropriate means, the practical realization of [the principle of equality]." This, like the obligation to ensure the "enjoyment" of the right, is an obligation of result. e) Obligation To Take "All Appropriate Measures" Most of the specific Articles in the Convention state that States Parties shall "take all appropriate measures" to eliminate discrimination against women in education, public life, etc. Legislation may be required, but legislation is not the complete solution. All appropriate measures must be taken by governments, and their agents, to ensure the concrete materialization of women's rights, be those measures legislative, executive or administrative. f) The Need for Affirmative Action The Convention also recognizes the need for governments and other actors to implement affirmative measures to overcome the historical disadvantage of women. This clarifies that the underlying goal of the Convention, inspite of its formal equality language, is de facto equality for women. The general rule of the Convention must be understood to be that women should be treated in a way that will bring the subordination of women to an end and produce equality in the real conditions of women's lives, regardless of whether that treatment is the same as, or different from, the treatment of men. The affirmative action article reinforces the Convention's interest in real, material equality for women by repudiating a formal version of equality that would automatically deem measures discriminatory if they involve treating women differently from men. So the Convention provides ample room for advocating for a substantive equality reading. The simplest argument is that it would be perverse, and completely contrary to a Canadian purposive approach, to read the Convention in such a way that it could not fulfill the goal of eliminating all forms of discrimination against women. We would be mistaken, however, to believe that this advocacy does not need to be done, that we can just pick up CEDAW and use it as a tool as though its content were secure and would always work for us. On the contrary, it is essential to engage in this work, as in work with human rights statutes and the Charter, knowing 1) that we must, continually, be the inventors of the content of the tool we are using, and that it will only be as good as we make it, and 2) that we face formidable opposition. In this case, the idea of substantive equality remains a much-contested one, and even unknown to many. Also, in the struggle to make CEDAW work for women, we face powerful opponents whose goal is to narrow its meaning and application, because they cannot countenance formal equality for women, let alone equality in women's real conditions. B. Reading CEDAW In A Larger Human Rights Framework It is also essential that CEDAW not be interpreted in isolation from the other major human rights instruments, and from the post-CEDAW documents like the Forward-Looking Strategies and the Platform for Action which should be considered aids to understanding CEDAW's current implications. One of the problems that is blatant in the international human rights system, and not so explicit, but just as real in domestic human rights law, is the division of civil and political rights from economic, social and cultural rights. This occurred in the UN system when governments, after drafting the Universal Declaration on Human Rights (UDHR), began to elaborate binding treaties containing those rights. At that time, the rights which appear together in the Universal Declaration, presenting an integrated vision of what is necessary to make human beings secure and free, were divided into two. Two Covenants were drafted, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), and they continue to stand as the central human rights instruments. The ICCPR declares that everyone has civil and political rights such as the right to life, liberty, and security of the person; to freedom from slavery; to freedom from torture or cruel, inhuman, or degrading treatment; and to freedom from arbitrary arrest, detention, or exile. It also declares the right of everyone to freedom of thought, conscience and religion, and freedom of expression, peaceful assembly, and association with others. It sets out the democratic rights to take part in the conduct of public affairs, to vote, and to be elected at genuine periodic elections. This Covenant obliges States Parties to create enforceable laws that guarantee these rights. The ICESCR obliges States Parties to progressively realize social and economic rights, including the right of everyone to gain a living by work that is freely chosen; to social security, including social insurance; to an adequate standard of living, including adequate food, clothing and housing, and to the continuous improvement of living conditions; to the enjoyment of the highest attainable standard of physical and mental health; and to education. While the rights that appear together in the UDHR were divided into two Covenants, the Preamble to the ICCPR expressly asserts the indivisibility of civil and political freedoms from economic, social and cultural rights. It states: "...the ideal of free human beings enjoying civil and political freedom and freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy...economic, social and cultural rights." The Declaration of the 1993 Vienna World Conference on Human Rights also reconfirmed the indivisibility of rights. The indivisibility of rights is evident in women's lives. Women who are hungry will not be active participants in the democratic life of their societies, and women who do not enjoy freedom of expression cannot struggle for their economic and social equality. Women who do not have adequate economic resources available to them cannot enjoy the most basic security of the person, because they cannot escape if there is male violence in their families. Thinking about women's real lives makes it evident that the division of rights into the categories of civil and political and economic, social and cultural rights cannot mean that some have priority over others. Rather, the achievement of equality for women calls for an approach that, in fact, recognizes that all rights are indivisible, interrelated and interdependent. However, the bifurcation of rights has created a central problem. Civil and political rights have been treated as the real rights in the human rights scheme, because they are expected to be made immediately enforceable in courts by States Parties. By contrast, economic, social and political rights have been treated as "soft," not real rights because the ICESCR does not require them to be made immediately enforceable in courts, and there is no complaint mechanism attached to them in the UN system, nor in most domestic systems. The fact that complaint mechanisms do not exist yet, however, does not diminish the obligations that signatory States have agreed to fulfill. In any event, CEDAW was developed after the ICCPR and the ICESCR and it contains elements of both civil and political rights, and economic, social and cultural rights, knitting the fundamental rights together to ensure the concrete realization of women's equality. Nonetheless, when using human rights ideas and instruments to advance their equality women confront a problematic mindset, international in scope, that it is based both on the bifurcation of civil and political rights from economic, social and cultural rights, and on universal sexism. Until recently, women have not been recognized as victims of human rights violations because human rights and human rights violations have been viewed through a male relationship with the state, and influenced by a capitalist bias against government involvement in redistributive social and economic measures. As a result, the experiences of women have been discounted and ignored. The established paradigm of a human rights violation has been the one underwritten by Amnesty International, that is, the torture and/or murder of a political dissident by officials of government. It was only in 1993 at the Vienna World Conference on Human Rights that women made a breakthrough and obtained recognition from both NGOs and governments that the violence that women around the world commonly experience in their families and communities is a violation of women's human rights. The torture and murder of women at the hands of men (fathers, husbands, employers) is no less widespread and no less political than violence by state officials. Despite the importance of the Vienna breakthrough, women should be wary about violence against women becoming the sole defining paradigm of a violation of women's human rights. This would permit women's poverty and economic inequality to be ignored as not a real rights problem, and to be treated as unconnected to the violence women experience. Civil and political rights have been made paramount by men and for men. These rights also tend to define equality as merely equal treatment in the administration of the law. Because of this, it is important to guard against women's right to equality becoming understood as principally about civil and political rights. Women's right to equality can only be understood as encompassing and requiring the realization of the whole panoply of articulated rights, and perhaps more, because women's inequality has civil, political, economic, social and cultural dimensions. In particular, because of our history of economic and social subordination, it is essential for women to insist that without economic equality there is no equality for women. Women, by viewing the whole scheme of human rights through an equality lens, can make a contribution to bringing rights together that will assist others. Women need to resist the isolation of CEDAW from the other treaties. The Covenants are in some ways stronger and better written instruments, and they fill in important gaps in CEDAW. For example, CEDAW's treatment of women's poverty and economic inequality is patchy. Article 11 deals with employment, including women's right to equal access to employment and the benefits of it, equal pay for work of equal value, maternity leave, supportive social services - particularly childcare, and social security when unable to work due to age, illness or disability. Article 13 very generally requires States Parties to eliminate discrimination in "other areas of economic and social life" and specifically names women's right to family benefits, bank loans, and other forms of credit. Article 14 deals with rural women, and it is the Article that appears most sensitive in its language to women's vulnerabilty to poverty. It states that women in rural areas have the right "to enjoy adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply, transport and communications." However, the issue of women's poverty is not specifically addressed in CEDAW, and, because of the repetition of language, such as "equal rights with men," "on equal terms with men," and "on a basis of equality of men and women" the general injunctions to eliminate all forms of discrimination against women could be read on this question as standing for the proposition that women are equal if they are no more destitute than men. As Women and the Equality Deficit argues, this empty version of equality can be repudiated, if we put CEDAW and the ICESCR together and recall that women are guaranteed the equal right to enjoy their economic, social and cultural rights, including the right to an adequate standard of living set out in Article 11 of the ICESCR. The ICESCR can be used to argue against reading CEDAW in a shallow fashion because to do so would diminish the substantive meaning of women's economic and social rights, as guaranteed by the ICESCR. The ICESCR guarantees women the right to an adequate standard of living and to the continuous improvement of living conditions. It guarantees everyone the right to work, to health, and to education. It does not guarantee to women the right to the same rate of poverty as men, but rather the right to the social and economic conditions that are consistent with the maximum available resources of the state. The ICESCR precludes equalizing downwards, that is creating "equality" by making more men poor, because it entitles everyone to "the continuous improvement of living conditions." As the ICESCR Committee states in its General Comment No. 3, because of the general obligation in the ICESCR to take steps "with a view to achieving progressively the full realization of the rights," there is a very strong presumption against "any deliberately retrogressive measures." Equalizing downwards would be deliberately retrogressive, as would taking steps, such as diminishing social programs, that deepen women's economic and social inequality. In short, if the ICESCR and CEDAW are read together it is clear that women's equality has a bottom; that is the equality guarantees of CEDAW cannot be satisfied by equal rates of poverty for women and men, because they must, as a foundation, encompass the rights guaranteed to women in the ICESCR. CEDAW, in my view, then builds on this foundation. CEDAW requires the elimination of the economic disparity between women and men as groups. That economic imbalance, and women's economic dependence on men, is a key facet of women's subordination, and CEDAW is concerned with the subordination of women as a group. Thus, the two instruments together require not only the eradication of women's poverty, but also an equitable distribution of wealth, income, and resources between women and men as groups. This is offered as an example of analytical exploration that women need to do now. If CEDAW is to be an effective instrument for advancing women's equality, there is a lot of thinking, analysis and interpretive work to do on the part of women's advocates, the CEDAW Committee, and other UN oversight Committees. Some steps would be these: 1. Canadian women's advocates need to analyze specific laws and government policies in Canada to determine whether and how they contravene the provisions of CEDAW, or CEDAW read with other human rights instruments and agreements. This would have several benefits: 1) it would contribute to the development of a repository of information that could be used to prepare alternative women's reports to the CEDAW Committee; and 2) it would contribute to the development of grounded, practical and inventive interpretation of the Convention. 2. Canadian women should seek to exchange this information and analysis with women from other countries, so that an international "discourse" develops about the meaning and application of CEDAW. 3. Canadian women should be examining in what circumstances, or in order to respond to what inequality problems, is it useful to look at CEDAW in conjunction with other instruments, for example the Convention on the Rights of the Child (CRC) or the Convention on the Elimination of Racial Discrimination (CERD), or the ICESCR. For example, to address the issue of the right to health of the girl child, it may be useful to look at CEDAW, CRC, the ICESCR, and the Platform for Action together and to undertake an integrated analysis of the undertakings that have been made by Canadian governments in these treaties and agreements. 4. Canadian women should also seek to present this information and analysis to the CEDAW Committee when Canada's periodic reports are being reviewed. 5. The notion of "monitoring the implementation" of international human rights instruments and agreements, such CEDAW and the Platform for Action, needs to be explored with some seriousness. What is monitoring? Does it require establishing benchmarks for progress, thresholds for contravention? How should monitoring be done - by governments, by women's NGOs, by both but separately, by both co-operatively? What resources are available to support such monitoring? Will monitoring actually be useful to women? 6. The CEDAW Committee should be urged to write more General Recommendations on the substantive interpretation that should be given to the Convention, or various parts of it. Article 21 of the Convention permits the Committee to issue such general recommendations. Currently there are 22 General Recommendations. The best known of these are General Recommendation 19 on violence against women, and General Recommendation 21 on discrimination in family life including nationality. Both of these Recommendations are long and detailed and provide specific direction to governments regarding implementation of the Convention. General Recommendation 19 on violence against women is important because violence against women is not mentioned in CEDAW. Nonetheless, the Committee concluded that violence perpetrated by public and private actors constitutes a form of discrimination against women that must be addressed if States Parties are to meet their obligations under the Convention. This is an example of the importance of General Recommendations because they permit the Committee to respond to the context of real issues and real events in which women's rights need to be exercised, as well as to changes in understanding of how women's subordination is perpetuated. The meaning of human rights standards cannot be considered fixed, since human rights standards must be responsive to the real lives of people. Now, the Committee could usefully write a General Recommendation on structural adjustment programs and their impact on women. 7. The Committee should be urged, not just to keep track of the substantive work of other treaty committees, but to engage with those committees that oversee the ICCPR, the ICESCR, (and the CRC, CERD and the Convention Against Torture and Other Cruel, Degrading or Inhuman Treatment or Punishment (CAT)) in active dialogue, and collaborative work to develop interactive interpretations of human rights instruments, and an interpretion of CEDAW that makes it central to the interpretation of the other Conventions. In 1995 the Chairpersons of the six treaty bodies made detailed recommendations about the "integration of gender perspectives" into the work of all the committees, and repeated these recommendations in 1996. In 1996, the UN Commission on Human Rights adopted a resolution recommending to all the treaty committees that their reporting guidelines be amended to reflect a great emphasis on "gender-specific information." Also the Committee on Civil and Political Rights (usually called the Human Rights Committee) announced that it would revise its general comment on Article 3 of the ICCPR dealing with discrimination against women. Yet will this "integration of gender perspectives" really assist women, unless there is some sophisticated, substantive cross-cutting dialogue in which women, and women's NGOs, play a central role? The CEDAW Committee needs to be urged to take leadership in the development of interpretations of all the treaties, and of the treaties together, that will advance women's substantive equality. 2. The Optional Protocol to CEDAW This complaint mechanism is very important. It will mean that women who make complaints of sex discrimination under Canadian law, and lose, - domestic remedies have to be exhausted - will be able to take their complaints a step further, into the international arena, by complaining to the Committee that oversees CEDAW that their rights under the Convention have been violated. It was through a complaint to the U.N. Human Rights Committee that Sandra Lovelace finally won recognition that s.12(1)(b) of the Indian Act violated her human rights. Under the Optional Protocol to the ICCPR Canadians can make complaints to the Human Rights Committee alleging that a civil or political right guaranteed under that Covenant has been breached by Canada, if they exhaust their remedies in Canada first. Two Aboriginal women, Lavell and Bedard, lost their Bill of Rights challenge to 12(1)(b) of the Indian Act when the Supreme Court of Canada ruled that they were not discriminated against because of their sex. The Court ruled that there was no discrimination even though s. 12(1)(b) deprived Aboriginal women of their Indian status when they married non-Indian men, while Indian men who married non-Indian women not only did not lose their Indian status but endowed that status on their wives. The Supreme Court of Canada reasoned that the Bill of Rights' guarantee of "equal protection of the law" required only equal treatment in the administration of the law, not equality under the law, that is, in the content of the law. Sandra Lovelace, whose right to live on her reserve was foreclosed by this ruling, complained to the U.N. Human Rights Committee, and that Committee ruled that Canada was in violation of Article 27 of the ICCPR because the effect of s. 12(1)(b) was to deprive Sandra Lovelace of the right to enjoy her culture. Since Sandra Lovelace's complaint was made, Canadian women have secured a constitutional guarantee of equality that includes equality under the law. Women specifically fought to include this language in s. 15 of the Charter this language, and to include s. 28, because of the decisions under the Bill of Rights, including Lavell, Bedard. Despite these constitutional guarantees, it may be important in future for women to be able to take a challenge on to a United Nations forum, if we fail in the Canadian system. A complaint mechanism that is specifically focussed on women's equality issues is important, given the lack of gender focus to date of the other treaty bodies. When the CEDAW Optional Protocol is completed and adopted, in addition to the periodic review of country reports, there will be a complaint procedure under the Convention. It should be noted, however, that the Optional Protocol is so named because it is optional. Signatories to CEDAW are not required to submit themselves to the complaint mechanism. If they choose not to then they are bound only by the treaty's periodic reporting requirements. Status of the Negotiations Despite a great deal of pressure from the Chairperson at last year's Commission on the Status of Women, the Working Group on the Draft Optional Protocol to CEDAW did not complete its work. However, NGOs representatives were not disappointed by the delay. By the end of the session, NGO representatives were sending clear signals to the negotiating governments that we would rather to wait for another year than have the governments adopt a weak Protocol. Because the model for decision-making in UN working groups is consensus, a lot of power rests in the hands of a nay-saying minority of countries who, apparently, wish to delay and to narrow the provisions of the Protocol as much as possible. Those countries who are "friends of the Protocol" made a number of important concessions in an effort to get consensus. However, it began to be clear that if they tried to conclude in the last hours of the 1998 session, the "friends" might have to give away too much. As a result, work on the Protocol will continue at the Commission on the Status of Women in March 1999, and major issues are outstanding. The major issues outstanding are these: a) Standing Standing means who has the right to make a complaint on behalf of whom. This is a key issue. There are two questions 1) who can make a complaint and 2) on behalf of whom can a complaint be made? 1. Can a complaint be made only by an individual woman; or can it also be made by another individual who is her designated representative (lawyer or relative); by a groups of individuals; or by an organization, such as an NGO? 2. Can a complaint be made only on behalf of an individual woman who is a direct victim of a violation, or also on behalf of a group of named individuals, or also on behalf of a group of unnamed individuals? The answers to these questions will determine whether the most vulnerable women can use the Protocol. At the March 1998 session, representatives from Southern African delegations, including Botswana and South Africa, stated very strongly that for the women that they represent, the mechanism will be useless unless organizations, as well as individuals, can make complaints, and unless complaints can be made on behalf of women who are not individually named. They indicated that women will be too afraid to make complaints by themselves, in their own names, no matter how egregious the violations of their rights. The two proposals currently under consideration are these:
[Text between square brackets indicates that it is not yet agreed to. In these alternative proposed paragraphs, neither whole paragraph has been agreed to, and the words or phrases in square brackets are also not yet agreed to.] Can NGOs make a complaint? Although the language "by or on behalf of an individual or groups of individuals" does not appear to allow NGOs to make a complaint, some delegations argue that it does because of practices of other UN Committees that have accepted complaints from NGOs, or assumed that they could, where other Optional Protocols have similar language. Canada believes that this language would "ensure that groups (which include organizations) are able to assist women in bringing complaints to the Committee." However, women's NGOs should remain sceptical of just what latitude this language, if it is included, will allow them to make complaints. The Comparative summary of existing communications and inquiry procedures and practices under international human rights instruments and under the Charter of the United Nations (E/CN.6/1997/4 21 January 1997) which was prepared for the 1997 session of the Commission on the Status of Women says this about standing:
This makes it clear that NGOs wanting to make a complaint on behalf of an individual or group of individuals will be required to justify why they are making it and not the victims, and to show that they are authorized by the victims of the discrimination. If no explicit clarification of the right of NGOs to make complaints on behalf of women is achieved during the negotiations, it will be important to ensure that a number of delegations indicate in their comments that they believe that language permitting complaints to be made "on behalf of an individual or groups of individuals" does allow NGOs to make complaints. This will give direction to the CEDAW Committee regarding their interpretation of the Protocol. Complaints on behalf of unnamed women Neither of these proposals would allow complaints to be made on behalf of unnamed women. It is assumed by the delegations negotiating the Optional Protocol that complaints made "on behalf of... groups of individuals" will be groups of named individuals. While Canada says it supports NGOs being able to make complaints, Canada does not support complaints being made on behalf of unnamed women. This creates a serious hole in the prospective Protocol from the point of view of Canadian women. Unless change occurs, it may well mean that, if Action Travail des Femmes (ATF) v. CN Rail were happening now, and the case lost in Canadian courts, ATF would not be able to proceed to the CEDAW Committee to vindicate the rights of women applicants for non-traditional jobs at CN Rail who were refused work, discriminated against and harassed. If they got over the hurdle that ATF is an NGO, they would still face a standing question because ATF complained on behalf of unnamed, as well as named, women. Similarly, an equal pay case, such as PSAC v. Canada, if it lost in Canadian courts, could probably not be taken to CEDAW under the Optional Protocol because, by definition, equal pay complaints are made on behalf of unnamed victims of systemic pay discrimination. So far, we must conclude that the complaints procedure under the Optional Protocol is not being designed to deal with systemic discrimination. At the conclusion of the March 1998 session the bottom line NGO position on standing was: a) NGOs must be able to make complaints, and the phrase "on behalf of" must be retained; b) "provisions of the Convention" must be substituted for "rights set out in the Convention." The ability to complain about violations of the "provisions of the Convention" is broader because there are obligations on governments set out in the Convention that a narrow-minded interpreter could decide are not "rights"; c) "directly affected by" must be substituted for "victims of a violation." Again this language is considered broader. NGOs had no developed position in the 1998 session on the issue of complaints being made on behalf of unnamed victims. b) Opt-Out on the Inquiry Procedure In addition to the communications procedure the draft Protocol includes a provision that would allow the Committee, where there is a serious and/or systematic violation of women's human rights, to initiate an inquiry. However, there is now a proposal on the table to allow an opt-out procedure to this inquiry procedure. This would allow countries who have opted in to the Optional Protocol to, nonetheless, opt out of the inquiry procedure. The NGO position at the 1998 session was that there should be no opt-out on the inquiry procedure. Because it appears that complaints made on behalf of unnamed women will not be permitted, this procedure appears to be the only means of dealing with systemic discrimination against women as a group. On this point, Canada's position is that it is "very supportive of the inclusion of an inquiry procedure for serious and systematic violations of the Convention. Although we would prefer that this procedure be mandatory, the Chair of the working group has proposed to include an opt-out procedure which would allow States strongly opposing an inquiry procedure to become parties to the complaint mechanism. This will be subject to ongoing negotiations at the next session." c) Reservations In addition to the opt-out on the inquiry procedure, there is a proposal that reservations to the Optional Protocol be allowed. There is no precedent for this in other human rights treaties. Reservations are allowed to the treaties on substantive content if the reservations are not incompatible with the goal of the treaty in question. But none of the other complaint procedures contains a provision in its complaint procedure indicating whether reservations are permissible or not. The CEDAW Optional Protocol could create the negative precedent of being the first to specifically permit reservations to the complaint mechanism. In practice, countries have entered reservations or declarations under other protocols indicating either that a particular committee should not consider a complaint that has already been dealt with by other international complaint procedures, or that the committee should not deal with complaints regarding matters that occurred before the complaint procedure came into force for that State Party. As its name implies, the Protocol is already optional. Countries have to sign on, to agree to be bound by this complaint mechanism. Permitting reservations would add a further level of optionalism to the Optional Protocol. Canada "has been very supportive of a text which would include a [no reservations clause] in light of ... the excessive number of reservations to CEDAW". The NGO position at the 1998 session was that permitting reservations to the Protocol would be unacceptable. The political dynamics of the 1998 negotiations are likely to resurface in the 1999 session. The countries who most actively support a strong Protocol are South Africa, Ghana, Chile, Columbia, the Phillipines, the Netherlands, Sweden, Lichtenstein. There is a larger group of countries that take good positions, but are not as active, including Canada, Austria, Germany, U.K., France, Italy, Australia. Then, there is a group of active problem-creators - Egypt, China, Cuba, India, Tunisia, Algeria, and Morocco. Though this group was substantially outnumbered, they were strategic, more strategic than the friends of the Protocol. Some observers believe that these countries will never sign the Optional Protocol. Nonetheless, they appear to be interesting in weakening its effectiveness for all women. As with the substantive content of CEDAW, the complaint mechanism requires women's involvement to ensure that it will be an effective tool for advancing women's equality. Some steps are these: 1. Canadian women need to lobby for 1) NGO capacity to make complaints on behalf of individual women, or a group of women, or unnamed women 2) no opt-out on the inquiry procedure 3) no reservations to the Protocol. 2. Canadian women need to: a) consolidate agreement on their position among a number of Canadian women's NGOs b) conduct a joint lobby of the Canadian government well in advance of the March sessions c) encourage the Canadian government to lobby other governments, particularly China and Cuba, at the diplomatic level regarding their positions d) lobby at some key embassies in Canada, and e) send a couple of lobbyists with a clear brief to the New York sessions. 2. Canadian women need to consider how they can use the Optional Protocol effectively once it is in place. Organizations, such as LEAF, and others that have been involved in strategic Charter equality rights litigation, will need to begin to think about the prospect of taking women's cases that have been unsuccessful in Canadian courts on to the CEDAW Committee. Will the cases need to be argued differently under CEDAW? What resources will be needed to do this? What will determine whether this strategy is effective? 3. Once an Optional Protocol is in place the work of the CEDAW Committee will be expanded and transformed. The Committee will not only review country reports periodically, but adjudicate complaints brought before them. Their role as interpreters of the Convention will have added importance. This means that women who wish CEDAW to be a more effective instrument need to be concerned about the appointment process, the expertise and values of the women on the Committee, and the resources that the Committee has to do its work. Currently, the CEDAW Committee has less meeting time allotted for its work than any other treaty body. Lobbying will be required to get the CEDAW Committee more resources, and to ensure that it has a solid, capable membership. 3. NGO Participation NGO participation is a sine qua non [the element without which nothing else matters] if CEDAW is to be an effective tool for women. The vigor and effectiveness of human rights instruments depends on whether they actually respond to the realities of women's lives, including the most marginalized women. The vigor and effectiveness of human rights complaints procedures depends on whether women who are marginalized have real access to the use of them for the vindication of their rights. The vigor and effectiveness of CEDAW as a tool for political advocacy depends on whether Canadian women understand the Convention and its relevance to the issues that they are dealing with in their communities. At this stage, if CEDAW and the CEDAW Committee, and other international human rights instruments and treaty bodies, are to be effective forces in the lives of women, it will be because women actively participate in the development of CEDAW's interpretation and application, and the voices of the most marginalized women are heard. Since for Canadian women's NGOs that have a domestic focus, international work is relatively new, we have the opportunity to think hard about the model of NGO participation that we want to foster. A model that is inclusive, that is rooted in grass-roots organizations and experience, that ensures that the most disadvantaged women have a voice, that fosters an egalitarian partnership between women's NGOs and women based in academia, and that does not make lack of UN expertise and experience a bar to participation, is essential. That is what Canadian feminists need and should strive for. The work that Canadian women's NGOs have done so far in international fora suffers from a lack of co-ordination, and because of that a certain lack of focus. This is not a criticism of anyone or any organization. Some organizations, like the Voice of Women, are very experienced lobbyists in United Nations fora. They have been going to the United Nations to advance the cause of peace for several decades. They have also been providing grassroots education about international instruments for many years. However, many other Canadian women's NGOs are relative newcomers to the United Nations; interventions seem scattered, and educational efforts inadequate, when looked at as a whole. This is simply a reflection of the newness of our engagement, and of the few resources we have to put to this work. The diversity of the work is important. Canadian women's NGOs need to move with all our diverse interests and particular kinds of expertise into international work. However, it is also important that we have the capacity to develop some common positions and strategies on key issues where there is a broad consensus and commonality of concerns. In June 1997 a meeting of women's NGOs was organized by the Canadian Research Institute for the Advancement of Women to discuss follow-up to Beijing. At that meeting women decided a) that they needed more co-ordination of international work so that there are some issues on which women have common positions and can do strategic lobbying and make strategic interventions; b) that they consider the advancement of the equality of all women in all countries around the world to be their broad goal, but their specific goal in undertaking work at the international level is to improve the conditions of women in Canada; and c) that macroeconomic policy, and all that flows from it, is the issue area of first priority. Some Canadian women's NGOs are now developing a plan that would allow for research, development of common policy positions, training for women who are going to UN fora, and public education in the women's community regarding international instruments and their implications for women in Canada. This plan will be put before a broader meeting of women's NGOs in early 1999 for discussion and approval. If the capacity of women's NGOs to engage in international work can be strengthened through co-operation and shared strategies that are focussed on particular issues, this will be an important step forward. Not all Canadian women can or wish to attend UN meetings, or do the lobbying at the international level. A truly participatory NGO process, however, requires the opportunity and resources to develop common positions and strategies, the trust and willingness to mandate representatives to carry them out, and the assurance that information and knowledge gained will be shared, so that the work can be built progressively. When Canadian women's NGOs move into international work we also move into connection with women's NGOs from around the world. This is exciting, but there are also some problems to reflect on as national NGOs become more involved. Until recently, human rights work at the United Nations has been carried out principally by International Non-Governmental Organizations (INGOs), such as Amnesty International, and Human Rights Watch. In the field of women's human rights, there are also INGOs. Some of the most influential of these are organizations that employ staff on a full-time basis to interact with the United Nations in order to advocate for women. The organizations and the women in them are knowledgeable about the United Nations system, plugged into the United Nations bureaucracy, and expert on international human rights law. However, they are not plugged into grassroots organizations, or linked with the most disadvantaged women. This is a model of international work that Canadian women's NGOs should be wary of replicating. More participation for national NGOs presents a challenge to the traditional working methods of these organizations. The women's INGOs will need to become more democratic in their methods of working, more willing to teach those with less expertise, and more responsive to the wisdom on substantive issues that comes from women working in national grassroots organizations. We have to curtail expert exclusiveness, by setting aside assumptions that only those women who are engaged professionally in human rights advocacy at the UN know enough to work effectively in these fora. There is also a challenge to the United Nations system. If NGOs are to participate more fully, United Nations bodies, including the CEDAW Committee, need to democratize their methods of work, provide more time and more openings for NGO participation, provide better, more accessible information, listen better, and be more responsive to NGO requests and concerns. Women's human rights mean what we make them mean. They are dynamic instruments, and their effectiveness depends almost entirely on our involvement. This is as true at the international level as it is at the national level. To make Canadian women's NGO work at the international level more accessible and more effective some steps are these: 1. Canadian women's NGOs need to develop some co-operative international work. To do this they need resources for research, and consultation with each other to develop common positions and strategies. 2. Canadian women's NGOs need to develop training resources for women dealing with UN bodies and attending UN meetings. 3. Canadian women's NGOs need a co-ordinated source of information about upcoming UN events and issues on UN agendas that are of interest. 4. Canadian women's NGOs need more popular education about international human rights instruments and their implications for women. 5. Canadian women's NGOs need improved methods of consultation with Status of Women Canada, the Department of Foreign Affairs and International Trade and other relevant departments about Canada's positions on issues that arise in international fora. 6. The Canadian government needs to provide women's NGOs with adequate resources to work at the international level. 7. The Canadian government needs to encourage United Nations bodies and agencies to take steps to become more accessible to NGOs. 8. Canadian women's NGOs need to engage women's INGOs in dialogue about methods of work and substantive positions. 4. Conclusion To use CEDAW effectively will require turning our minds to the exercise of giving this Convention the substantive equality reading that will permit it to respond to the real problems of women that we are trying to deal with. It will also require ensuring that CEDAW is read inside the broader human rights framework, drawing all the richness possible from other human rights treaties and agreements. It will require popular education to ensure a broader understanding among women of CEDAW, and the international human rights system in general. It will require a spirit of collaboration and trust among Canadian women's NGOs. Most of all it will require some common understanding of why we want or need to use CEDAW. There are only two reasons for using CEDAW: 1) it can effectively assist in advancing the equality of women in Canada, and/or 2) it can effectively assist in advancing the equality of women in other countries. Women in Canada should not engage in "CEDAW work" for its own sake, but because we have concrete goals. For example, if we wish to draw public attention to the human rights implications for women of international trade agreements, it may be useful to use CEDAW to illustrate how these agreements diminish the capacities of governments to fulfill the positive obligations to women that they have signed on to. Let us not do CEDAW work in a vacuum. Let us do CEDAW work strategically.
With thanks: original site created by Kelly Mannix. Maintained and updated by Nina Cherington. |