The United Nations (UN) Women’s Convention CEDAW entered into force on September 3rd 19812. Besides the International Bill of Rights, it is one of the most widely ratified human rights treaties and the major international instrument concerning women, built on the principles of equality and non-discrimination3. Article 1 of the Convention defines discrimination against women as:
‘any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social4, cultural, civil or any other field.’
As this definition suggests, the Convention is designed to have a wide-ranging effect, including womens equal participation in political, economic and social life. Also, it com-pels states to take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise (CEDAW, Art. 2(e)). The definition of equality
2CEDAW was adopted by the General Assembly of the United Nations on December 18th 1979 and opened for signature on March 1st 1980. The Convention entered into force in 1981, which means that from 1982 onwards, it became legally binding.
3The term ‘International Bill of Rights’ is commonly used when referring to the three main UN Human Rights Treaties: The Universal Declaration of Human Rights (UDHR), The International Covenant on Civil and Political Rights (ICCRP) and The International Covenant on Economic, Social and Cultural Rights (ICESCR). As of August 2008, there have been 185 ratifications, accessions and succession to CEDAW. States that have only signed and not ratified are not bound to put the provisions of the Con-vention into practice. States parties are permitted to submit reservations when ratifying the ConCon-vention (CEDAW, Art. 28, 29), if these are compatible with the general objective and purpose of it. See UN Di-vision for the Advancement of Women: URL: http://www.un.org/womenwatch/daw/cedaw/states.htm.
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used by CEDAW encompasses both formal orde jure equality as well as actual orde facto equality, implying that states are not only held responsible for themeans they undertake, but also for theresults of their efforts to end discrimination.
The UN Committee on CEDAW is the main body responsible for monitoring and evalu-ating states parties’ compliance with the Convention. It frequently interprets the treaty text and disseminates recommendations to help states in fully translating the standards into domestic law and practice (CEDAW, Art. 17). States parties are expected to follow the Convention’s reporting procedure by which they submit a report on the legislative, judicial, administrative or other measures which they have adopted to give effect to the provisions of the present Convention and on the progress made (CEDAW, Art. 18).
3 Theoretical Framework: The Varying Costs of Compliance
The theoretical model presented here draws from previous studies and approaches that provide us with different explanations of state compliance that will help with the assess-ment of the different costs of state compliance with a treaty like CEDAW.
I assume the states parties to the Convention to be rational actors who pursue their goals with the help of cost-benefit calculations of their specific actions (see Hathaway, 2003).
With regard to CEDAW, three categories of costs can be distinguished. First, Interna-tional Human Rights Law teaches us that a state is compelled to attend to certain duties and obligations imposed by CEDAW. Second, Rational Functionalism elaborates on the role a states reputation plays and lastly, a multitude of approaches, such as classic regime theory, have stressed the importance of the domestic opportunities that exist for opposi-tion and interest groups.
The differences in the nature of political and socio- economic rights and the way in which womens general status is affected by IHRT will assist in identifying the varying costs of compliance of the categories of rights. Political rights include the right to vote, to run for a political office and to hold elected and appointed government positions. Social and economic rights are often intertwined, but generally speaking all rights concerning family law correspond to women’s social rights, such as the right to initiate divorce, to enter mar-riage on an equal basis with a man, but also the right to health care, education, freedom from religious practises such as female genital mutilation and forced sterilization. Eco-nomic rights usually include the right to equal pay for equal work, the freedom of choice of profession, job security and maternity leave and freedom of sexual harassment in the workplace. I will mostly refer to the differences between women’s political and women’s socio-economic rights here.
3.1 State Duties imposed by CEDAW
Organizational theory shows that changing the status quo - be it only legally on paper or in actual practice - involves costs that a state has to be prepared to burden (Chayes and Chayes, 1993). Whether a state is prepared to comply with an IHRT is thus dependent on its assessment of these costs. Only if the costs for these rights can be broken down and constructed into direct responsibilities and duties that a state has to fulfil, will there be the possibility of change, of monitoring and perhaps even of advocating for them. Depending on the nature of the right, this might be simple, as is the case with so-called ‘correspond-ing rights’ (see Steiner et al., 2008: 185) imply‘correspond-ing for example that the right not to be tortured corresponds to the state’s duty not to torture its citizens. Other duties might not be explicitly spelled out in the treaty, such as a women’s right of equal education would
imply the state’s obligation to create institutions and procedures ensuring and monitoring the equal participation of females in the state’s educational system. Building on legal theory (Shue, 1996; Donnelly 2003; Steiner et al., 2008) five types of state duties are dis-tinguished5, which vary considerably across different categories included in CEDAW, as will be shown.
Generally speaking, the state’s duty of respecting the rights that have been imposed by signing CEDAW is the most fundamental and widely accepted obligation the government has to fulfil. As a negative or ‘hands-off’ duty (Steiner, 2008: 186), the state is to respect the individual and not prevent him or her from the enjoyment of the right, even if the right is never actually exercised (see Donnelly, 2003: 9).
However, as clearly formulated in the Women’s Convention, the duty of respect also im-plies the obligation of the state to ensure that others also keep their ‘hands-off’. Article 2(e) entails that states will not only be held responsible for the public sphere located be-tween state and the individual, but also for the private sphere bebe-tween individuals, as well as individuals and non-governmental bodies. Whereas a woman’s right to vote and her freedom to work in a profession outside of her house might both theoretically rely on the state’s respect thereof, the actual realization varies with the state’s capacity and willing-ness to create institutions and procedures and thus an environment in which these rights can actually be exercised. While public funds are also needed in order to institutionalise the right of women to vote, for a government to exercise influence over private individuals’
relationships, as would be the case with family law, significantly more time, expertise and financial backing is required (see Brysk, 2005; Ch. 1, 3; Freeman, 2002: Ch.6).
The next set of duties obliges the states parties to protect the stated rights and prevent violations thereof. As displayed above, CEDAW implies that states ensure the full enjoy-ment of non-discrimination of women, which means they must do whatever is necessary to protect women from discrimination. Protection, in contrast to mere respect of rights has been vital to the advancement of women’s rights (see Steiner et al., 2008: 188). As with the creation of institutional frameworks, protecting rights involves public expenditures that tend to vary according to the area at issue. The protection of women’s human rights in areas that affect men and women equally can often be guaranteed through existing in-stitutional expertise, other areas such as inequality within a marriage involve the creation of new forms of protective means (amnesty international, 2006: 62).
With the initiation of the International Covenant on Economic, Social and Cultural Rights (ICESCR), the state’s duty to provide goods and services to satisfy the individual’s rights to e.g. food and shelter (Steiner et al., 2008: 189) was brought to the centre of inter-national attention. These so-called positive rights generally have the effect of directly improving the situation of the rights-holder (instead of just ‘not worsening’ it, as with
5Later in this study, when I refer to a states respect for women’s rights, I am actually implying these duties.
the right not to be tortured). Women’s economic rights, such as the right to maternity leave and the right to equal pay for equal work generally require far higher normative, institutional and financial state involvement than the right for women to join political parties and vote. Studies have shown that basic socio-economic rights such as the right to own and inherit land, own credit, livestock and technical know-how are often denied to women. For a state to end this discrimination, a change in agrarian laws, family laws, rural employment strategies and most importantly a change in the normative concept of paternity are needed (see Butegwa, 1994; Youssef, 1995). One might argue that, given the political representation of women, these reforms might yield electoral benefits for the government. However, protecting the socio-economic rights of one part of the popula-tion directly implies ‘taking away’ benefits from the other half in this case. By contrast, allowing women to run for a political office only requires widening out the electoral pro-cedure, i.e. ‘erasing a ban’, a process that also affects the previous candidate group, but with less severe distributional consequences (see Mertus, 1995; Youssef, 1995; Cook, 1994) The last duty reinforces the differences in the nature of political, economic and social rights. States parties are obliged to promote and advocate for the protection and respect of the rights they have agreed to comply with. This duty expects states to complement their prior efforts with a holistic framework aimed at promoting the rights laid down in CEDAW, thus imposing further costs on the state. By consequence, states parties face a multitude of tasks that vary according to the nature of the right. For a country like Tunisia, reforming stereotypes such as ‘family codes’, that guide the role of women within the family and marriage bears far higher costs than granting women increased political representation6. Women’s human rights violations that are rooted in cultural practices, such as female genital mutilation (FGM) display the need for state promotion very clearly.
Legal provisions declaring FGM an illegal act that is subjected to punishment may help abolish it in countries where the practice was ‘imported’ by immigrants and is thus not the conventional routine (see Toubia, 1995). In countries, however, where the majority of the population follows this tradition, publicly accessibly information, state funded campaigns and counselling opportunities for victims, potential victims and their parents have proven to be far more important than the mere legislative backing (Oboler, 2001)7.
Not all rights stated in the Women’s Convention have thus been equally accepted uni-versally in different cultures and societies (see below). I expect technical and somewhat neutral matters such as the right to vote (see Donnelly, 2003) to therefore be easier and cheaper to be institutionalised than for example the social right of a woman to enter into marriage on a basis of equality with men or the right of a women to choose her profession freely (Jawad, 1998).
6See ‘North Africa: Women Secure More Rights’, in Africa Renewal (United Nations): 12. August 2008 URL: http://allafrica.com/stories/200808130656.html.
7Thede jureexistence of legal provisions banning FGM has been in place in most Sub-Saharan African countries since the ruling of their colonial governments. However, public opinion to date shows disdain for these rulings or remains ignorant of their existence (see Toubis, 1995).