cedaw in the jordanian legal system- a handbook for practitioners

USINGCEDAWIN THEJORDANIANLEGALSYSTEM:A HANDBOOK FOR PRACTITIONERS

Dr. Mohammad Khalil Al-Moussa

Preface by Asma Khader

Mizan Law Group for Human Rights (Mizan)

Mizan was established by a team of lawyers as a non-profit and independent organisation in 1998. Its goals include the protection of human rights, the promotion of democracy, policy reform, and raising awareness on human rights. The Organisation leads a number of initiatives in Jordan including offering legal assistance and protection to vulnerable groups such as children, women, prisoners, refugees, and elderly people. In addition, Mizan works to increase the capacity of legal practitioners enhancing their knowledge on international human rights instruments and their use at the domestic level. Ultimately, Mizan strives to enhance the legal protection of human rights and fundamental freedoms in Jordan as they are laid out in international and national laws. The organisation plays a central role in encouraging policy reform in line with international standards, in particular promoting the dialogue between national institutions and civil society. Mizan has an office in Amman as well as north and south of the Hashemite Kingdom.

The Jordanian National Commission for Women (JNCW)

The Jordanian National Commission for Women is a semi-governmental organisation founded in 1992 under the chairmanship of Her Royal Highness Princess Basma Bint Talal. It is a translation of the Royal vision of enhancing the role of women and an expression of Jordan’s commitment to the advancement of the status of women and to the implementation of all provisions of conventions, treaties and action plans internationally recognised. The Commission is composed of ministers, representatives from the civil society and the private sector and a number of experts. The Commission functions, entrusted to it by The Council of Ministers, include: the revision of laws and legislations to ensure that they do not discriminate against women; proposition of public policies aimed at empowering women in various fields; working as a liaison between the governmental and non-governmental organisations; implementation of programs and projects, including capacity building, and the preparation of periodic reports on the status of women; and finally, overseeing the preparation and updating of the national strategy for women and

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monitoring its implementation. To carry out these tasks, the Commission continuously strives to strengthen networking and communication with the various groups and organisations within the society.

Italian Consortium of Solidarity (ICS)ICS is an International Non-Governmental Organisation founded in 1993 as a network of Italian associations and local groups operating on issues related to human rights, peace and development sharing the same values and working methodology. ICS is engaged in the protection of victims of armed conflicts and international crisis as well as the promotion and protection of human rights and fundamental freedoms. Through partnerships with various organisations, ICS has been able to implement a number of projects in the Middle East and it has been active in Jordan since 2008. The focus of these programs has increasingly been the protection and promotion of human rights, often through capacity building programs focused on the use of international legal instruments.

Note to Readers

The primary audience of this publication are Arabic speaking practitioners, nevertheless the decision to produce a bilingual publication was guided by the fact that this work can benefit not only those in Jordan but it can also be used as a tool for advocates for the Convention of the Elimination of Discrimination Against Women in other countries, allowing them to create similar material; in addition to assisting the promotion of CEDAW, it will also assist international experts to become better acquainted with the Jordanian legal system, including the representatives of UN human rights institutions.

Please note that the original publication was written in Arabic, and translated into English. The English version differs slightly from the Arabic version due to the translation and editing process.

Note on the AuthorProfessor Mohammed Khalil Al-Moussa obtained his PhD in international law from the Faculty of Law at the University of Nantes, France, in 1999. He has worked as an Assistant Professor in the Department of Legal Studies at Al al-Bayt University, and as lecturer at both the Jordanian Diplomatic Institute, and Hashemite University, he also taught at Al-Zaitouneh University. Professor Al-Moussa is currently teaching International Human Rights Law and International Humanitarian Law at the University of Bahrain. He collaborates with a number of NGOs in Jordan.He has published several research papers and books in Arabic, including: the Juridical Function of International Organizations (Amman: Wael Publications, 2003), the Interpretation of International Human Rights Convention in the light of the Practice of Treaties Bodies (Journal of Law, University of Kuwait, 2004), the Use of Force in the Contemporary International Law (Amman: Wael Publications, 2004), International Law of Human Rights (Amman: House of Culture and for Publishing and Distribution, 2005), the Impact of Reservations Made by States (The Journal of Law, University of Bahrain, 2006), Guide for the Application of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Amman: Adalah Centre for Human Rights Studies, 2008).

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Preface Women are entitled to lead a life filled with dignity and equality in every respect. This fact is internationally recognised through international human rights treaties and norms. A respect for a woman’s inalienable right to equality is shared throughout Jordanian social, political and religious society, and is protected under Jordanian Law. However, statistical indices and data demonstrate the unfortunate reality of the continuing disparity between men and women across Jordan. Illiteracy, although low, continues to be higher amongst women than men. Similarly, women are more likely to be unemployed than men, with female unemployment standing at 24%, in contrast to 10% for men.

The constitutional protection of citizen’s rights in Jordan is clear and applies equally to women and men. The government is actively progressing towards removing any legislation which is discriminatory in application. Furthermore all religions in Jordan share the common value that a woman deserves both respect and the protection of her rights. This is reflective of the ethical values of Jordanian society that regards discrimination, ill-treatment and injustice directed against women as being counter to Jordanian culture.

Royal initiatives and government strategies, that seeks to promote the level of involvement of women in all aspects of Jordanian public life, as well as protecting women from violence, has positively affected the status of women in Jordanian society and they are eroding the obstacles to their advancement.

Despite these continuing efforts to overcome obstacles which hamper the advancement of women within Jordanian society, including the development of legal and institutional mechanisms aimed at the protection of women, manifestations of discrimination and violence against women, within the family, workplace and wider society, remain. . Jordanian women continue to suffer from discrimination and a large portion of them are still vulnerable to forms of violence and ill-treatment. Moreover poor awareness of women’s rights and the means of enforcing remains a critical issue.

The concern for the treatment of women in Jordanian society is one that is shared by women all over the world. Despite strong national, regional

and international efforts to promote and protect human rights, globally women continue to face discrimination; in many places they do not share the same social, cultural, economic, political and economic rights as men. Many women exist under the grave spectre of violence being directed towards them.

The international community has worked tirelessly towards eliminating discrimination against women through developing specialised conventions and declarations as well as creating institutional mechanisms within the United Nations framework.

It is within this framework that the international community, with General Assembly Resolutions 34/180, adopted the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), on 18 December 1979. This Convention reflects the collective will of the society of States to eliminate all discrimination against women. The Convention came into force on 3 September 1981. As of 7 September 2009 CEDAW has been ratified by 186 States, including 19 Arab States.Jordan signed the Convention on 3 December 1980, ratifying it on 1 July 1992 and published in the Official Gazette on 1 August 2007. This is in addition to other legal instruments ratified by Jordan that enshrine the principle of equality and non-discrimination, including the two international Covenants, on Civil and Political Rights and on Economic, Social and Cultural Rights. Despite initially signing CEDAW with some reservations, on 19 February 2009 the Jordanian government lifted its reservation to the fourth paragraph of Article 15 concerning the right to freedom of movement and choosing one’s place of residence. However, other reservations remain: including to: Article 9, paragraph 2, concerning the right of women married to foreigners to pass their nationality onto their children; Article 16, paragraphs c, d, g concerning, respectively, the rights and responsibilities during marriage and at its dissolution, towards children regardless of the marital status, and equality between husband and wife.

The practical steps taken by the Hashemite Kingdom of Jordan to implement CEDAW’s provisions are based on the constitutional and political commitment to achieve equality and non-discrimination among all Jordanians. It reflects the political will of Jordan towards the purpose and the content of CEDAW.

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It is essential to note that ratification is a sovereign act, and no state can be forced to perform this act. When a state initiates ratification or accession to an international agreement it triggers contractual, legal and political responsibility. It imposes duties on all three branches of the State to take the necessary steps to enforce the provisions of the relevant convention at the national level. These commitments include providing information and specialised knowledge on how to enforce the Convention’s provisions to judges, law enforcement officials and other legal professionals, as well as promote an understanding of its content and ethos amongst relevant stakeholders, in the case of CEDAW this includes women themselves.

Within the Jordanian legal system, publishing the Convention in the Official Gazette means that its provisions have become mandatory. It also means that it is the responsibility of the legislative branch to take the necessary steps needed to amend any laws that are incompatible with the Convention. The judiciary is compelled to use the provisions of the Convention when dealing with relevant cases.

This important, pioneering and specialised project, including the technical and practical information included in this manual, will contribute to the effective implementation of CEDAW and assist practitioners in the application of its provisions. This will have a tangible impact on the lives of Jordanian women.

The availability of legal remedies for the protection of rights envisaged under the law should be guaranteed to all. For women in particular, the right to dignity, justice and equality should be legally ensured and protected. Protecting from human rights violations is a key responsibility of the State, but also it is one that should be shared across the whole Jordanian society. The responsibility falls on all of us!

Asma Khader

Table of Contents

Note to Readers 5

Note on the Author 5

Preface 6

Introduction 12The Project 14

The Primary Objectives of the Handbook 15

How the Handbook is Structured and How to Use It 16

I. Human Rights and the International Convention on the Elimination of All Forms of Discrimination against Women 18

Women's Rights and the Universality of Human Rights 20

International Instruments on Women's Rights 22

Defining the Convention on the Elimination of All Formsof Discrimination Against Women

23

Ratification, Signature, and Accession to the Convention 24

Basic Principles of CEDAW 25

State Parties’ Obligations under the Convention 26

Reservations 28

II. Rights guaranteed in the Convention on the Elimination of All Forms of Discrimination against Women. 30

Definition of Discrimination Against Women 32

Prohibition of Trafficking in Women and Exploitationof Prostitution

33

Political Rights and Participation in Public Life 34

Right to Nationality 36

Right to Education 36

Employment Rights 38

Right to Health 39

Economic Rights 40

Equality in Civil Matters, Marriage and Family Life 40

Prohibition of Violence Against Women 42

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VI. Models of application of CEDAW in Different Legal Systems 84

Attorney General of Botswana v. Unity Dow(Botswana Supreme Court, 1992)

86

Ephrahim v. Pastory (High Court of Tanzania, 1990) 88

Njobeka v. Mkorogoro (High Court of Tanzania, 2001) 88

Dhungana v. Government of Nepal (High Court of Nepal, 1993) 89

Vishaka v. State of Rajasthan (3 BHRC, 261) 90

Municipal Corporation of Delhi v. Female Workers(High Court of India)

91

Annexes 92

Convention on the Elimination of All Forms of Discrimination Against Women

94

Optional Protocol to the Convention on the Eliminationof All Forms of Discrimination against Women

107

Useful websites 113

Contact Information 114

III. Guarantees of Control and Supervision of the Implementation of the Convention 46

Committee on the Elimination of DiscriminationAgainst Women

48

Reports of States Parties 49

Models and Content of Initial and Periodic Reports 50

Examination of Reports 51

Special Reports 53

General Recommendations 53

The Optional Protocol 54

Content of the Optional Protocol 55

Individual Communications 56

Conditions of Admissibility of Individual Communications 56

Consideration of Individual Communications 59

Inquiry Procedure 60

IV. The Convention on the Elimination of All Forms of Discrimination Against Women in the Jordanian legal system 62

Jordan's Reservations to the Convention 64

Incorporation of CEDAW into the Jordanian Legal System 66

Status of the Convention in the Jordanian Legal System 68

The Importance of Jordan's Accession to the Optional Protocol 70

V. The role of judges, prosecutors and lawyers in enforcing CEDAW 72

The Direct Applicability of CEDAW 74

The Direct Applicability of the Principle of Equality 77

The Interpretative Use of CEDAW 79

CEDAW in Lawyers’ Practice 80

Why Should Lawyers Invoke CEDAW in Domestic Courts? 82

12 Introduction

The project Strengthening Local Capacity to Protect Women’s Rights in Jordan was established in 2008 and is being implemented by Mizan Law Group for Human Rights and the Italian Consortium of Solidarity - in cooperation with the Jordanian National Commission for Women, and is funded by the European Union. Its aim is enhancing the protection of women’s rights, and therefore contributing to the reduction of discrimination and violence against women in Jordan. This handbook explores the international instruments that promote these principles, particularly the Convention on the Elimination of All Forms of Discrimination Against Women (henceforth CEDAW or the Convention), examining both its status and the potential for its application in the Jordanian legal system. The purpose of this handbook is to develop the skills and competences of lawyers, public attorneys, judges and other practitioners on the use of CEDAW within the Jordanian legal system.

Introduction

14 Introduction 15Introduction

The Project

Strengthening Local Capacity to Protect Women’s Rights in Jordan deals with judges, public attorneys, lawyers and other actors involved in the Jordanian legal system. The idea of enhancing the capacity of these groups in using international instruments and the necessity of this publications derives from Mizan’s desire to enhance the role of lawyers, and in particular its own lawyers in the field of legal assistance and protection of victims of human rights abuses. Mizan has a decennial experience in this field, and throughout the years its lawyers attempted in a number of occasions to use CEDAW to litigate their cases in domestic tribunals. However, to date no Jordanian court has based any of its decision on CEDAW. It is envisaged that, after the completion of the project, the target groups will be better able to effectively use the provisions of CEDAW in their case work.

The main activities carried out within the project include: the provisions of legal assistance to vulnerable women on civil matters, criminal cases, labour rights and other areas of law which relate to discrimination and other violations of women's rights; seminars, workshops and training courses that focus primarily on the procedural aspects relating to the application of CEDAW in Jordanian courts; the organisation and coordination of litigation surgeries or working groups to practically assist lawyers in preparing and litigating cases before the Jordanian courts, through the use of CEDAW.

This publication is a critical feature of the project. The handbook is designed to be an innovative and practical guide to CEDAW and its application in the Jordanian judicial system. It is a comprehensive instrument to be used by legal practitioners in their day to day work.

The Primary Objectives of the Handbook

The primary objective of this handbook is to enhance the capacity of lawyers, public attorneys, judges, and legal aid and advocacy organisations to understand the status of CEDAW within the Jordanian legal system, and how the rights set forth in the Convention can be used in domestic courts.

This manual covers the procedural aspects of CEDAW and tackles the legal implications of its provisions. This is achieved by examining the authoritative legal opinions provided by international human rights treaty bodies, in addition to jurisprudence, related to CEDAW that has emerged from national and regional courts.

It is anticipated that this handbook will contribute to the development of other projects that will continue the work of promoting the use of CEDAW in the Jordanian legal system.

Ultimately the main goals and objectives of this handbook can be summarised as follows:

1. Promoting women’s rights in Jordan, through the provision of procedural and practical guidance on how to implement CEDAW. This will allow actors operating in the Jordanian judicial system to understand the mechanisms and the means to prosecute cases based on CEDAW.

2. Raising awareness of the importance of CEDAW, particularly among groups concerned with its judicial application. At the present time there is a general lack of awareness among legal practitioners on how, why and when the Convention should be applied.

3. Highlighting national, regional and international examples of the application of CEDAW, to encourage domestic application.

Goals and objectives of the handbook:

1. Promoting women’s rights in Jordan, through the provision of procedural and practical guidance.

2. Raising awareness on the importance of applying CEDAW, particularly among groups concerned with its judicial application.

3. Highlighting national, regional and international examples of the application of CEDAW, to encourage domestic application.

4. Encouraging public authorities to accede to the Optional Protocol to CEDAW.

16 Introduction 17Introduction

In light of the structure of the Jordanian legal system, a number of recommendations are made on how to ensure the effective application of the provisions of CEDAW. The handbook does this by exploring the application of the Convention in other legal jurisdictions, including its application by other States. Jurisprudence is critical to gathering a technical understanding of the ways in which Jordanian legal practitioners could use CEDAW more effectively. The suggestion is not that Jordan should directly emulate other states’ practice but rather they should be inspired by, and benefit from it.

It should be kept in mind that CEDAW is not the only valuable instrument in protecting women’s rights; there are also other means that should be used in any effective and comprehensive action. Nevertheless, as the original and most comprehensive instrument challenging for the rights of women, CEDAW remains the strongest asset in the work of legal practitioners in Jordan. Ultimately, the aim of this handbook is to encourage the development of a strategy for legal practitioners to support the application of the provisions of CEDAW within the Jordanian judicial system and therefore to ensure that the human rights of women are protected.

4. Encouraging the public authorities to accede to the Optional Protocol to CEDAW. In fact, it is anticipated that if the judiciary in Jordan applies the Convention and ensures the respect for the rights stipulated therein, this will encourage public authorities to accede the Optional Protocol, thus accepting the procedural guarantees that it contains, in particular the individual communication mechanism. It has been noted that States that provide effective legal remedies for the victims of discrimination are also more willing to accede to the Optional Protocol.

How the Handbook is Structured and How to Use it

The handbook addresses the provisions listed in CEDAW and explores their ethos. It does not exhaustively examine each individual article or the entire scope of application of CEDAW, but it operates as an insightful tool for those looking towards its implementation.

CEDAW is the primary international tool that aims at promoting and protecting women’s rights, though there are other significant documents. Therefore this handbook is not limited to CEDAW, as it also analyses pertinent international human rights instruments that are significant to women’s rights.

The manual explores the history of CEDAW in Jordan, including Jordan’s reservations to the Convention; it looks at the Optional Protocol to CEDAW, and underlines the importance of ratifying the Protocol, since it represents the stronger tool available to guarantee the compliance of public authorities to the provisions of the Convention.

The handbook analyses the status of CEDAW within the Jordanian legal system, including the role of legal practitioners in ensuring the application of the provisions of the Convention.

A significant question usually arises when addressing women’s rights. It concerns the importance and the need to have a separate convention which deals exclusively with women’s rights. All other international human rights instruments in fact, explicitly clarify that the rights they guarantee are to be enjoyed equally by both men and women. Furthermore, the Charter of the United Nations (1945) clearly addresses the issue of equality and stresses the principle of equality based on sex in more than one of its provisions, particularly in the section dedicated to fundamental rights. The concept of equality is common across the three major international human rights instruments, the Universal Declaration of Human Rights (UDHR - 1948)1, and the two International Covenants on Civil and Political Rights (ICCPR - 1966) 2 and Economic Social and Cultural Rights (ICESCR – 1966) 3.

1 See http://www.un.org/en/documents/udhr

2 See http://www2.ohchr.org/english/law/ccpr.htm

3 See http://www2.ohchr.org/english/law/cescr.htm

1 Human Rights and the International Convention on the Elimination of All Forms of Discrimination against Women


21Human Rights and the International Convention on the Elimination of All Forms of Discrimination against Women

Paragraph 31 of the same GC also asserts that Article 26 of ICCPR “requires States to act against discrimination by public and private agencies in all fields”. To explain this point, the Committee utilised examples from cases that were submitted to the Committee itself, such as the Aumeeruddy- Cziffa et al v. Mauritius case. This case is about a woman from Mauritius that lost her citizenship because she married a foreigner. As this would not happen to a male Mauritian who married a foreign female, the committee concluded that Mauritanian legislation directly discriminated on the ground of sex, and found it to be in breach of Article 26 of the Covenant.

It is clear that while discrimination against women can be open and blatant, such as in the above case, often it is much more subtle. In many instances discrimination is not codified, but it is in practice that discrimination exists. Paragraph 31 continues, pointing to the fact that there are many areas where women are discriminated against, without any legal protection, with the example that “a large proportion of women are employed in areas which are not protected by labour laws, that prevailing customs and traditions discriminate against women, particularly with regard to access to better paid employment and to equal pay for work of equal value”.

In addition to the UDHR and the two International Covenants, there are many other international and regional human rights conventions which contain provisions that seek to protect the rights of women such as: the Convention on the Rights of the Child (1989)5, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment (1985) 6, the Convention Against Discrimination in Education (1960)7, and the Rome Statute of the International Criminal Court (2003)8, the Geneva Conventions (1949) and its Additional Protocols (1977)9. Regional instruments include the European Convention for Human Rights10, the African Charter on Human and Peoples’ Rights and its Additional Protocol II11, and the Arab Charter on Human Rights12.

Women’s Rights and the Universality of Human Rights

The universality of human rights is recognised in all international human rights instruments. Critical to the protection of women’s rights, these international legal instruments affirm the incompatibility of sex based discrimination with the universal nature of human rights. Article 2 of UDHR states that “everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as […] sex”.

This principle is further enshrined under the ICCPR and the ICESCR. Article 2(1) of ICCPR affirms the principle of equality among all individuals, with Article 26 specifically prohibiting discrimination based on sex. Article 2(2) of ICESCR emphasises the prohibition of discriminating in the application of those rights it sets forth on the basis of sex. Furthermore Article 3 of both Covenants states “State Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all […] rights set forth in the present Covenant”.

Numerous state obligations arise from the aforementioned provisions. The Human Rights Committee confirms in General Comment (GC) No. 28 (2000) 4 that “the State Party must not only adopt measures of protection but also positive measures in all areas so as to achieve the effective and equal empowerment of women”. Referring to Articles 2 and 3 of ICCPR, in paragraph 4 the Human Rights Committee asserts that these articles “mandate States Parties to take all steps necessary, including the prohibition of discrimination on the ground of sex, to put an end to discriminatory actions, both in the public and the private sector, which impair the equal enjoyment of rights”.

One of the most important opinions expressed by the Human Rights Committee, in paragraph 5 of GC 28, is that State Parties to the Covenant “should ensure that traditional, historical, religious or cultural attitudes are not used to justify violations of women’s right to equality before the law and to equal enjoyment of all Covenant rights”.

4 Human Rights Committee, General Comment 28, Equality of rights between men and women (Article 3), U.N. Doc. CCPR/C/21/Rev.1/Add.10 (2000).

5 See http://www2.ohchr.org/english/law/crc.htm

6 See http://www2.ohchr.org/english/law/cat.htm

7 See http://www.unesco.org/education/pdf/DISCRI_E.PDF

8 See www.un.org/icc

9 See http://www.icrc.org/web/eng/siteeng0.nsf/htmlall/genevaconventions

10 See http://www.hri.org/docs/ECHR50.html

11 See http://www.hrcr.org/docs/wBanjul/afrhr.html

12 See http://www.diplomacy.edu/arabcharter/hypertext.asp



5. Declaration on the Elimination of Violence Against Women: adopted by the General Assembly in 1993. The Declaration is a qualitative addition to the previous international instruments because it is the first international instrument directly dealing with violence against women.

Defining the Convention on the Elimination of All Forms of Discrimination Against Women

The General Assembly of the United Nations adopted the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) on 18 September 1979. The Convention has since then been almost universally accepted, with 185 State ratifications13; notable exceptions include the United States, Iran and the United Arab Emirates.

The idea of the Convention was first proposed by the United Nations Commission on the Status of Women. The Declaration on the Elimination of Discrimination Against Women (1967) had paved the way for the Convention. The General Assembly decision to make the decade 1976-1985 the United Nations Decade for Women created the right momentum for the preparation of the Convention. Finally CEDAW entered into force on 3 September 1981. CEDAW served to enshrine the moral obligations already contained in the Declaration into legally binding obligations.

In the preamble of CEDAW, the Convention is defined as “an international bill of women’s rights”. It is a comprehensive international convention which addresses areas specifically relating to women. CEDAW compiles previously recognised rights, including the prohibition of discrimination in the enjoyment of rights, while at the same time adding new and innovative provisions, such as: equality in public and private life, challenging socio-cultural practices of discrimination, and addressing in particular the situation of rural women.

In conclusion, equality between women and men in the enjoyment of human right has long been included in international human rights and humanitarian law. Nevertheless the necessity to protect women’s rights through specific instruments continues to exist.

International Instruments on Women’s Rights

The protection of women’s rights does not stop with the formal recognition of equality included in the various international human rights instruments. The United Nations, in fact, have adopted a number of additional international conventions and declarations related specifically to women:

1. Convention on the Political Rights of Women: adopted by the General Assembly in 1952 and entered into force in 1954. This Convention emphasises the equality of women and men in their eligibility to stand for elections to public office and leadership positions.

2. Convention on the Nationality of Married Women: adopted by the General Assembly in 1957, decreed the inadmissibility of an automatic change in the nationality of women upon, or subsequent to, entering a marriage contract.

3. Convention on Consent to Marriage, Minmum Age for Marriage and Registration of Marriages: approved by the General Assembly in 1962.

4. Declaration on the Elimination of Discrimination Against Women: adopted by the General Assembly in 1967, which paved the way for CEDAW. The declaration states that discrimination against women is an affront to human dignity and stresses the equality of women and men in political rights, in the acquisition of nationality, and in marriage.

Equality between women and men in the enjoyment of human right has long been included in international human rights and humanitarian law. Nevertheless the necessity to protect women’s rights through specific instruments continues to exist.

CEDAW is defined as “an international bill of women’s rights”. It is a comprehensive international convention which addresses areas specifically relating to women. It compiles previously recognised rights, while adding new and innovative provisions.

13 See http://www.un.org/womenwatch/daw/cedaw/states.htm



The primary goal of CEDAW is to bind all State Parties to the commitment to eliminate all forms of discrimination against women: most notably in the workplace, education, public life, health and family. CEDAW is significantly different from its predecessors in that it emphasises both the protection of rights as well as non-discrimination.

Like other human rights conventions, CEDAW only identifies the general principles and framework of the rights it sets forth. It leaves State Parties to choose the methods of implementation, to determine how best to integrate CEDAW within their legal systems, and to establish suitable means for its enforcement. Individual States’ autonomy to decide how to integrate CEDAW into both their legal and social systems has resulted in a diverse range of implementation mechanisms adopted by States. For instance some States apply CEDAW’s provisions directly, others integrate them into domestic legislation, while some have enshrined the principles of CEDAW within their Constitution.

Ratification, Signature, and Accession to the Convention

Signing CEDAW, as any other convention, represents the first stage in the formal adoption of the document by the State. At this point the State is not legally bound to adhere to the provisions of the Treaty. However, Article 18 of the Vienna Convention on the Law of Treaties requires States to avoid any conduct that undermines the Convention in question or disrupts its object and purpose.

Ratification signifies the clear consent to the State Party to adhere to the Convention. A distinction must be made though between international ratification and national ratification. National ratification does not render the State internationally bound to the provisions of the Convention. For this to occur, the State Party must submit the convention to the depository, defined within the Convention. In the case of CEDAW, the depository is the Secretary-General of the United Nations.

Accession to a treaty is similar to ratification in terms of action and legal effect. According to articles 1, 2, 5 and 11 of the Vienna Convention on the Law of Treaties, accession is the “international act so named whereby a State establishes on the international plane its consent to be bound by a treaty”. Accession differs from ratification in the sense that it is not preceded by signature, in other words it allows for any non-signatory State to become a party to the Convention

Basic Principles of CEDAW CEDAW was developed to resolve the gaps in previous instruments that address women’s rights. In particular, CEDAW presents five innovative features that are missing from these:

1. The comprehensive and complete elimination of all forms of discrimination against women: the Convention seeks the elimination of all forms of discrimination against women whether in the public or private sphere. In other words, it aims at eliminating discrimination not only in the vertical relationships between state and citizen but also in the horizontal relationships within the community. Therefore it aims not only at eliminating discrimination based on sex in public policies and governmental practices, but it also seeks to eradicate societal discrimination including within individual relationships, the family and the community.

2. Changing the structural, social and cultural patterns of society: one of the essential characteristics of CEDAW is that it compels State Parties to eliminate and change all the structural, social and cultural patterns and practices that reinforce traditional gender stereotypes, which leave women vulnerable to discrimination.

3. Interim positive measures (positive discrimination): the fourth article of the Convention urges State Parties to take positive measures to accelerate de facto equality between men and women. These interim measures are described as positive



discrimination. This form of discrimination is not prohibited under international human rights law. These measures will be ended whenever the desired goal of equality is reached. Examples of such temporary measures include establishing quota systems which promote the prioritisation of women. This includes establishing a minimum number of women to be enrolled in universities, to hold parliamentary seats or to be senior staff in organisations.

4. The situation of rural women: another important feature of CEDAW is that it is the first international convention to address the situation of rural women specifically. Article 14 of the Convention obliges states to take into account the particular problems facing rural women and the vital role undertaken by them. State Parties are required to take appropriate measures to ensure that rural women also fully enjoy the rights set out in the Convention.

5. The role of women in production and development: the Convention seeks to integrate women into the process of production and development in various fields. Key areas include the work place, political participation, family life and education.

These areas will be addressed in more details in Chapter 3, which specifically explores the rights protected under the Convention.

State Parties’ Obligations under the Convention

It is essential to take into consideration that human rights are codified in treaties, which are defined as “international agreement[s] concluded between States”14 that create rights for individuals under the jurisdiction of these States. Treaties, including CEDAW, create both positive and negative obligations for State Parties. States have the negative obligation to refrain

from violating the rights set forth in CEDAW (obligation to respect), while at the same time they bear the duty to protect and fulfil these rights through the adoption and implementation of appropriate legislations and policies throughout all the spheres of state sovereignty. Human rights, are in other words, state obligations. This means that only State Parties can breach the provisions of CEDAW and other human rights treaties. In practice this also means that the Convention can be used in domestic courts only when the relevant case involves a failure by a state body of the obligation to respect, protect and fulfill individual rights as foreseen by CEDAW. Consequentially, physical and legal persons acting in their private capacity normally cannot violate human rights, and it will not be possible to hold them accountable for human rights violations. It is necessary for the state to be involved to make CEDAW applicable.

CEDAW has created a number of fundamental obligations relating to the elimination of all forms of discrimination against women. Article 2 of the Convention identifies the most important commitments:

1. Include the principle of equality between men and women in national legislation and, where applicable, in the Constitution;

2. Prohibit discrimination against women and determine appropriate penalties should this prohibition be violated;

3. Eliminate all discriminatory legislation and refrain from any other direct and indirect discriminatory practice;

4. Ensure effective remedies through competent courts and other public bodies in response to acts of discrimination;

5. Ensure the elimination of discriminatory acts against women, whether carried out by individuals, organisations or institutions;

14 Vienna Convention on the Law of Treaties, Vienna, 23/05/1969, Art. 2(a).



amount, nature and scope of reservations made by the State Parties16. The World Conference on Human Rights, held in Vienna in 1993, was compelled to call for the reduction of the reservation to human rights conventions as they are in contradiction with the spirit of human rights treaty law itself.

Arab States’ reservations primarily revolve around two issues: a conflict with either Islamic law or national law. The majority of reservations of these countries focus on articles 2, 7, 9, 10, 16 and 19 of CEDAW17. There is no doubt that many of these reservations made by Arab States, as well as a number of the Islamic States, are in violation of Article 28(2) of the Convention.

The Committee has discussed the reservations of some Arab and Islamic countries, and has engaged in constructive dialogue with them, with particular regard to reservations on Articles 2 and 16 as they are considered central to the Convention. The Committee has followed up on the issue of reservations since 1998, and has since worked with States in order to encourage them to withdraw or modify any reservations that violate Article 28(2).

The Committee has stressed that difference in cultural, religious and social structures and values are not sufficient reasons to deny the universality of women’s rights. Many Arab and Muslim countries have responded positively to the concerns and recommendations of the Committee withdrawing their reservations. Many non- Arab/Islamic countries including France, Canada, Brazil, Poland, Romania and Jamaica, have also withdrawn reservations. Article 22(1) of the Vienna Convention on the Law of Treaties permits the withdrawal of reservations at any time. This withdrawal is to be presented in writing. Upon submitting this, all the legal consequences associated with the reservation automatically become invalid.

Moreover in terms of obligations, under Article 17, State Parties must submit periodic reports, including an initial report, to the Committee on the Elimination of Discrimination Against Women in a timely manner describing the progress made in implementing the Convention.

Reservations Article 28 of CEDAW allows State Parties to make reservations to its provisions, provided that these reservations do not contravene the object and purpose of the Convention. This means that the Convention considers the criteria of inadmissibility as set forth in the Vienna Convention on the Law of Treaties.

During the ratification stage, many State Parties have made reservations to the provisions of CEDAW. Some of these reservations are procedural and do not affect the subject and purpose of the Convention. For example, Article 29(1) asserts that “any dispute between two or more States Parties concerning the interpretation or application of the present Convention which is not settled by negotiation shall, at the request of one of them, be submitted to arbitration. […] any one of those parties may refer the dispute to the International Court of Justice”. Article 29(1) has been widely criticised by States, and has been subjected to the largest number of reservations15 but since it is a procedural article, reservations to it are consistent to Article 28(2), as they do not violate key principles of the Convention.

On the other hand, a great number of reservations made on articles of CEDAW do affect the object and purpose of the Convention, resulting in a violation of Article 28(2). The Convention however, lacks a mechanism which allows for the rejection of invalid reservations. In fact, the main instrument to allow for this, Article 29(1), has had so many reservations placed on it that it was rendered almost unusable.

The Committee on the Elimination of Discrimination Against Women (the Committee) has expressed concern about the

Article 28 of CEDAW allows State Parties to make reservations to its provisions, provided that these reservations do not contravene the object and purpose of the Convention.

15 Among the Arab countries that placed reservations on this article are: Kuwait, Algeria, Bahrain, Tunisia, Egypt, Lebanon, Iraq and Yemen.

16 See: General Recommendation No. 4 (Sixth session, 1987), General Recommendation N. 20 (Eleventh Session, 1992), and paragraphs 41-49 of General Recommendation N. 21 (Thirteenth Session, 1994).

17 These articles are respectively dealing with: the prohibition of discrimination against women in the national constitutions and legislations, including repeal the existing laws, customs and discriminatory practices; equality in public life; equality in matters of nationality; equality in legal capacity; equal rights to marriage and the mechanism of settlement of disputes between States Parties.

CEDAW consists of thirty articles organised into six parts: 1. the definition of discrimination against women

and the procedures and measures necessary to eradicate it;

2. the political rights of women and their participation in public life, in addition to equality in matters related to nationality;

3. equality in the fields of education, employment, health and the condition of rural women;

4. legal capacity of women and marital rights;5. procedural elements aimed at supervising the

application of the Convention; 6. concluding provisions relating to the

administrative aspects of the Convention itself.

2 Rights guaranteed in the Convention on the Elimination of All Forms of Discrimination against Women.


33Rights guaranteed in the Convention on the Elimination of All Forms of Discrimination against Women.

men and women. The Convention itself, in fact, acknowledges diversity between man and women by including provisions on reproduction, motherhood and child care.

There is an important question arising from Article 1 that relates to the scope and application of the Convention: is the ratification of CEDAW all that is needed to address discrimination against women?

The answer is undoubtedly no. CEDAW embodies the minimum standards of protection that State Parties to the Convention shall provide. Therefore it does not represent the sole instrument that can be used to eradicate discrimination against women. It is the foundation on which national law should be developed in the struggle to eliminate all forms of discriminations against women.

Prohibition of Trafficking in Women and Exploitation of Prostitution

Under Article 6 of CEDAW, “States Parties shall take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women”.

Trafficking in women and the exploitation of prostitution violates a number of internationally recognised human rights such as the prohibition of slavery, forced labour and inhumane and degrading treatment. Moreover, the Rome Statute of the International Criminal Court considers that these may amount to a crime against humanity or a war crime if either of these acts are committed in a systemic manner or used as an instrument of war against a civilian population18.

The Committee on the Elimination of Discrimination Against Women in its General Recommendation No. 19 (1992) addresses the issue of trafficking and exploitation of prostitution. It asserts that: “poverty and unemployment increase opportunities for trafficking in women. […] there are new forms of sexual

The first four parts of the Convention will be analysed in the present chapter, detailing the ethos of the Articles and also, where relevant, debating their limitations. The fifth part, on the mechanisms of control and supervision for the implementation of the Convention, will be the focus of chapter 4.

Definition of Discrimination Against WomenArticle 1 of CEDAW defines the term 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, social, cultural, civil or any other field”.

As the leading Article in the Convention, it is not surprising that this definition has been the subject of much debate. The Convention adopts a narrow definition of equality which does not include factors leading to discrimination. Inequality on the basis of sex is often closely related to social and cultural structures prevailing within a community, which leads to direct or indirect discrimination against women. CEDAW attempts to challenge this issues but it does not include this concept within the definition.

The Convention has also been criticised because it continues to measure the status and equality of women in relation to men. However, it is impossible to remove such comparison while the legal discourse continues to be male-dominated. Similarly the criteria and procedures established in Article 1 are based on classical traditions of treaty law and therefore continue to operate within the prevailing patriarchal approach, which itself contains forms of hidden discrimination.

In any case, it is possible to assert that the concept of discrimination against women as stated in Article 1 of the Convention, does not aim at removing all differences between

18 The Rome Statute of the International Criminal Court, Article 7 / 1 / a.



article demands State Parties ensure women have the equal right to vote as men in all elections and public referenda, the right to participate in the formulation and implementation of government policy, and the right to hold public office and perform all public functions. The article also guarantees women’s right to stand in all elections, in addition to participating in any non-governmental organisation concerned with the public life of the country such as political parties, trade unions and labour unions.

Article 8 of the Convention recognises women’s right to “represent their Governments at the international level and to participate in the work of international organizations”.

Articles 7 and 8 indicate very clearly that women should be on an equal footing with men in regard to their political competency, expression of public will and participation in various aspects of the public life of their country. It is noticeable however that in an alarming number of countries, women continue to be marginalised from public life.

Expanding women’s participation to public life entails measures and procedures beyond the simple recognition of women’s political rights. In order to determine the exact nature of the State Parties’ obligations, two key concepts relating to political rights of women should be noted:

A. The empowerment of women relates to any activity intended to contribute to the development of women’s capabilities, knowledge, awareness, and all that consequently leads to the enhancement of their participation in public life, and other fields. In other words, the term empowerment applies to interventions that support women’s potential to improve their abilities and to engage in all areas of public life. This suggests that women’s rights are dynamic and should continue to be developed until women have reached their full potential in political, economic, family, and social life as well as in access to health.

exploitation, such as sex tourism, the recruitment of domestic labour from developing countries to work in developed countries, and organised marriages between women from developing countries and foreign nationals. These practices are incompatible with the equal enjoyment of rights by women and with respect for their rights and dignity. They put women at special risk of violence and abuse”19.

Trafficking in women is a transnational organised crime. It is prohibited under the Optional Protocol to the United Nations Convention Against Transnational Organized Crime (2000) 20 which deals with the prevention, suppression and punishment of trafficking in persons, especially women and children. The Protocol requires the State Parties to criminalise trafficking in persons, including if an individual initiates, contributes or organises, or direct others to act. Moreover, States are required to take appropriate measures to prevent trafficking of persons.

The Protocol delineates human trafficking as: “the recruitment, transfer, harboring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services slavery or practices similar to slavery, servitude or the removal of organs”21. The protocol stresses, in Article 3(b), that the consent of the victim of trafficking does not allow for exceptions from the provisions of the Protocol.

Political Rights and Participation in Public LifeUnder Article 7, State Parties to CEDAW “shall take all appropriate measures to eliminate discrimination against women in the political and public life of the country”. This

19 Committee on the Elimination of Discrimination against Women, General Recommendation No. 19 (eleventh session, 1992), Violence against women.

20 Protocol to Prevent, Suppress and Punish Trafficking in Persons and in particular women and children, supplementing the United Nations Convention Against Transnational Organized Crime, Article 5.

21 Ibidem, Article 3(a).



Right to Education

Article 10 of CEDAW deals with equality in education, requiring State Parties to take all appropriate measures to ensure equality in this field and especially to ensure gender equality in vocational education, and enrolment in educational institutions of all levels and types. Article 10 also ensures equality in the school curricula, quality of facilities, educational services, and standards of teaching including levels of qualifications, access to grants and educational loans, and the reduction in dropout rates among female students.

This article calls on State Parties to eliminate gender stereotyping within the school system. This should occur at all stages of education and requires a revision of curricula and teaching methods to achieve this goal, in addition to the dissemination of the principles and basic concepts contained in the Convention.

Under Article 10, it is not permissible, for example, to direct girls towards a particular career, while directing the boys to other careers, based on gender roles. Curricula, content and teaching methods that prioritise men, or encourage the discrimination of women are also prohibited. Examples of this include the portrayal of women as housewives and men as university professors, ministers or ambassadors.

Article 10 of CEDAW is closely linked to Article 13 of the ICESCR, which addresses the right to education, obliging States to provide free primary education for all. The Committee on Economic, Social and Cultural Rights relates the right to education to articles 2(2) and 3, and then interprets such articles “in the light of the UNESCO Convention Against Discrimination in Education, the relevant provisions of the Convention on the Elimination of All Forms of Discrimination Against Women, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Rights of the Child and the ILO Indigenous and Tribal Peoples Convention, 1989 (Convention No. 169)” 22.

B. The quota system is based on the idea of allocating a specific minimum quota for women in different institutions or during elections. Jordan, for example has allocated a minimum number of parliamentary seats for women. This is a temporary measure that should encourage the full participation of women in Jordanian political life, and that should be discontinued once this goal has been achieved.

Right to Nationality

The Convention recognises in Article 9, that women have “equal rights with men to acquire, change or retain their nationality. They shall ensure in particular that neither marriage to an alien nor change of nationality by the husband during marriage shall automatically change the nationality of the wife, render her stateless or force upon her the nationality of the husband”. In other words, the Convention guarantees women the right to retain their own nationality and rejects automatic changes in nationalities in relation to the husbands' nationality.

Additionally, Article 9(2) guarantees that women are equal to men with respect to passing their nationality onto their children. All Arab Countries have made a reservation to this article, with the exception of Tunisia, Morocco, Egypt and Iraq. The national law of most Arab States does not recognise maternal jus sanguinis as a basis for acquiring nationality. Attaining citizenship is contingent upon, and restricted to paternal jus sanguinis. This creates a clear distinction between men and women, where the father can pass his nationality to children by virtue of law, while the mother does not have the same right.

22 General Comment No. 13 on Article 13 of the International Covenant on Economic, Social and Cultural Rights, paragraphs 33-34.



Right to Health

Women’s health can be defined as “women’s spiritual, emotional, cultural, and physical well-being, and is determined by the social, political, cultural and economic context of women’s lives, as well as by biology”24. Health is a holistic concept covering the physical in addition to social, cultural and political factors which impact health. This means that health provision should take into account all these features.

Article 12 of CEDAW guarantees equal rights in the provision of health care services. It recognises the right of women to access appropriate health care services in connection with pregnancy, confinement and post-natal care, granting free services where necessary, as well as adequate nutrition during pregnancy and lactation. This article, therefore, includes rights that apply exclusively to women.

The Committee on the Elimination of Discrimination Against Women in its General Recommendation No. 12 (1989) indicated violence against women as causing a negative impact on women’s health. It recommends that State Parties provide support services for women who are victims of assault or abuse.

In its General Recommendation No. 14 (1990), the Committee has raised concerns on the impact that some ‘traditional’ practices, such as female genital mutilation, have on the health of women. It therefore called on State Parties to take appropriate and effective measures to eradicate these harmful practices.

Among other topics addressed by the Committee regarding a women’s right to health is the prevention of the Acquired Immune Deficiency Syndrome (AIDS). General Recommendation No. 15 (1990) urged States to pay special attention to the rights and needs of women and children when devising their strategies and programmes to control the spread of AIDS, taking into account factors related to reproductive health of women and women’s status in some societies, which makes them particularly vulnerable to AIDS.

Employment Rights

Article 11 obligates the States Parties to take all appropriate measures and procedures to remove all forms of discrimination in employment, and to recognize women’s labour rights as equal to those of men. Some of these rights are:

1. The right of women to work, and the right to choose a profession;

2. The right to enjoy the same employment opportunities available to men under the same criteria for appointment;

3. The right to obtain the same benefits as men, including promotion, security, access to training and qualification required to work;

4. Equal pay for equal value, with equality in social security and the same access to paid leave as men;

5. The right to health protection and safety conditions of employment, including the protection of the reproductive women;

6. Prohibition of dismissal from work due to pregnancy, maternity leave or marital status;

7. The right to special protection during pregnancy, particularly if the work is harmful to the pregnancy.

Article 11 of the Convention contains an important requirement for State Parties: they have to review legislation in the light of developments in scientific and technological knowledge.

There is a fundamental question related to labour rights of women that is left unclear by CEDAW: is domestic work or work undertaken by rural women covered under Article 11? Articles 11 and 14 of CEDAW continue to distinguish between the public and private sectors of women’s work. This has prompted some to argue that the labour provisions included in CEDAW are inadequate23.

23 H. Charlesworth, C. Chinkin, S. Wright, Feminist Approaches to International Law, A J I L, Vol.85,1991, pp.613-645.

24 Qurtaji, Women in the UN System. An Islamic Perspective, Beirut: University Foundation for Studies and Publications, 2006, p. 349.



tribunal procedure. State Parties to the Convention are bound to guarantee that men and women possess the same rights with regard to freedom of movement and the freedom to choose residence and domicile.

There is no doubt that laws in force in many Arab and Islamic countries, including those derived from Islamic law, recognise the rights of women to financial independence, including full entitlement to conclude contracts, and to own funds. With regard to the freedom of movement and the choice of place of residence, Jordan, Algeria, Bahrain, Syria and Morocco have all placed a reservation on Article 15(4). However, as of 2008, Morocco has withdrawn all its reservations to the Convention while Jordan withdrew its reservation to this article in 2009.

Human rights instruments including CEDAW have recognised women’s right to marriage and a family life25. Article 16 of CEDAW determines a women’s right to enter marriage, the right to choose a spouse freely and with full consent, and equality of the sexes within the marriage.

There is no shared international definition of family. The difficulty with the concept of family relates primarily to religious, cultural and social factors. For example, in terms of criteria for determining what constitutes marital relationship, the legal systems of the State Parties differ. These differences primarily relate to the age of marriage, if the marriage contract can be terminated, and same-sex marriage. Legal systems in the Arab and Islamic countries do not recognise the latter type of marriage, for example.

There are other challenges relating to family rights, such as national legislation relating to citizenship rights when entering marriage with an alien and within intra-family relationships. Perhaps this difficulties and differences explain why the drafters of CEDAW chose to allow States to determine their own definition of family. Article 16 of the Convention asserts the principle of equality between women and men in all matters relating to marriage

Economic Rights

In addition to the right to work, set out in Article 11 and explained above, Article 13 affirms that State Parties should eliminate economic discrimination against women, including the right to access to the family benefits, the right to bank loans, mortgages and other forms of financial credit.

Article 14, requires “State Parties to take all appropriate measures to eliminate discrimination against women in rural areas in order to ensure, on the basis of equality of men and women, that they participate in and benefit from rural development and, in particular, shall ensure to such women the right [to]:"

1. Participate in the elaboration and implementation of development planning at all levels;

2. Benefit directly from social security programmes; 3. Obtain functional literacy skills and increase their technical

proficiency; 4. Organise self-help groups and co-operatives in order to obtain

equal access to economic opportunities through employment or self employment.

Article 14 has obligated State Parties to take all appropriate measures to ensure the application of the provisions of the Convention for rural women. It is noted that the Convention emphasises that the work of rural women must be paid for.

Equality in civil matters, marriage and family life Article 15 of the Convention recognises the equality between women and men before the law. It also recognises that women have a legal capacity identical to that of men and the same opportunities to exercise such capacity. In particular, it gives women equal rights to conclude contracts and to administer property, treating them equally in all stages of court and

With regard to the freedom of movement and the choice of place of residence, Jordan, Algeria, Bahrain, Syria and Morocco have all placed a reservation on Article 15(4). However, as of 2008, Morocco has withdrawn all its reservations to the Convention while Jordan withdrew its reservation to this article in 2009.

25 See articles No. 11 of the Universal Declaration of Human Rights, No. 23 of the International Covenant on Civil and Political Rights and No. 12 of the European Convention of Human Rights.



Recommendation No. 12 in paragraph 8 (1989), requests State Parties to the Convention to include information concerning legislation implemented to protect women from all forms of violence, including sexual violence, abuse within the family and sexual harassment, in their periodical reports to the Committee.

The Committee used General Recommendation No. 19 (1992) to clarify the State Parties obligation to eliminate all forms of violence against women within the framework of CEDAW, both in the private and public sphere. The Committee stated that violence against women is a form of discrimination that falls under Article 1 of the Convention 27. The Committee therefore deals with violence against women under the principle that it is a form of discrimination, and does not consider it an issue independent from the core principles of CEDAW. The Committee also emphasises that violence against women constitutes a violation of human rights and fundamental freedoms that places limitations on the enjoyment of those rights28.

The first article of the UN Declaration for the Elimination of Violence Against Women (1993) defines violence against women as “any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life”. Violence against women therefore encompasses any forms of physical, sexual and psychological violence occurring within the family, the community or committed by the State29.

The Declaration also stated that human rights that may be negatively affected by violence against women include: the right to life, the right to equal protection before the law, the right to liberty and security of person, the prohibition of all forms of discrimination, the right to health, the right to just conditions of work and the prohibition of torture and other inhuman, cruel, and degrading treatment. The Declaration for the Elimination of Violence Against Women urged States to work seriously to prevent acts of violence against women, to criminalise it and to determine appropriate punishments.

and family relations, stressing that women have the same rights and responsibilities that are granted to men at the time of concluding the marriage contract, during marriage and in the occurrence of its dissolution. It is also emphasised that women and men have the same rights and responsibilities as parents, irrespective of their marital status, in matters relating to their children, and in all cases the best interests of the child should prevail. Women are also given the same right to decide freely and responsibly on the number and spacing of their children and in matters of custody, guardianship of children and adoption.

Despite the fact that Article 16 attempted to find common grounds between different legal systems, it is the subject to many reservations, in particular by a number of Arab and Islamic Countries, such as: Jordan, Algeria, Tunisia, Iraq, Kuwait, Lebanon, Libya, Egypt, Bahrain and Syria. Morocco withdrew its reservation to this article in 2008. These reservations have sparked wide-ranging legal arguments, as they violate Article 28(2) of the Convention. Rights related to family and marriage remain the most controversial and disputed aspects of the Convention.

Prohibition of Violence Against Women CEDAW does not include provisions that directly address the issue of violence against women. Subsequent documents, however, have addressed this issue, particularly the Beijing Declaration presented at the Fourth World Conference on Women (1995). Previously, in 1994, in an international effort to combat violence against women, the United Nations appointed a Special Rapporteur on violence against women. The Rapportuer has produced various reports including descriptions of forms of violence against women in addition to presenting possible frameworks to ensure protection for women26.

The Committee on the Elimination of Discrimination Against Women has also addressed the deficiencies of the Convention through the use of General Recommendations. General

Despite the fact that Article 16 attempted to find common grounds between different legal systems, it is the subject to many reservations, in particular by a number of Arab and Islamic countries, such as: Jordan, Algeria, Tunisia, Iraq, Kuwait, Lebanon, Libya, Egypt, Bahrain and Syria. Morocco withdrew its reservation to this article in 2008. These reservations have sparked wide-ranging legal arguments, as they violate Article 28(2) of the Convention.

CEDAW does not include provisions that directly address the issue of violence against women. The Committee has addressed this topic in General Recommendations. No. 12 (1989), and No. 19(1992). It stated that violence against women is a form of discrimination that falls under Article 1 of the Convention.

27 General Recommendation No. 19, supra note 19, para. 4.

28 Ibidem, Para. 5.

29 UN Declaration for the Elimination of Violence against Women (1993), Article 2.

26 Integration of the Human Rights of Women and the Gender Perspective – Violence Against Women, Report of the Special Rapporteur on violence against women, its causes and consequences - 27/02/ 2003, E/CN.4/2003/75/Add.



The International Criminal Tribunal for Rwanda, in the Akayesu Case (1998), found the defendant criminally responsible for acts of rape and sexual violence33. The Court defined rape as “a physical invasion of a sexual nature, committed on a person under circumstances which are coercive”, and defined sexual violence as “not limited to physical invasion of the human body” but it “may include acts which do not involve [...] even physical contact”34. The International Criminal Tribunal for the Former Yugoslavia has confirmed that whether or not an action amounts to rape or sexual assault does not depend on the degree of physical force used on the offending party, or on the level of resistance given by the victim but it is a “compelling circumstance, which denies any possibility of consent”35.

Within regional mechanisms, in 1994, the Organization of American States (OAS) approved the Convention to Prevent and Eradicate Violence Against Women and established punishments for it30. A second additional protocol to the African Charter on Human and Peoples Rights on the Rights' of Women in Africa has also been adopted. This Protocol was inspired by concepts and basic principles contained in various international instruments on women, most importantly it details the obligation of State Parties to criminalise “harmful practices, whatever their form or appearance that would harm the rights of women, fundamental freedoms, and contrary to recognized international standards”. It makes clear that violence against women includes any practices resulting in harm to women, including those practices that are justified on the basis of tradition, religion or culture. This concept supports the vision of the Human Rights Committee who argued that States may not use traditional, historical, cultural or social norms to justify violations of women’s rights31.

The prohibition of violence against women obviously includes rape and sexual violence, in certain occasions these can amount to torture. For example, the European Court of Human Rights, when adjudicating on the case of Agdin vs. the State of Turkey (1997), determined that the rape of the complainant while in the custody of a policeman constituted a form of torture under Article 3 of the European Convention on Human Rights32.

In addition, the Rome Statute of the International Criminal Court has included rape and other sexual violence of civilians as constituting crimes against humanity when committed in the context of a large scale/systematic attacks. Depending on the context, these violations can also amount to war crimes and acts of genocide. Both the International Criminal Tribunal for the Former Yugoslavia and International Criminal Tribunal for Rwanda adopted this approach in relation to rape and sexual violence.

The Declaration for the Elimination of Violence Against Women stated that human rights that may be negatively affected by violence against women include: the right to life, the right to equal protection before the law, the right to liberty and security of person, the prohibition of all forms of discrimination, the right to health, the right to just conditions of work and the prohibition of torture and other inhuman, cruel, and degrading treatment

30 See http://www.oas.org/juridico/English/treaties/a-61.html

31 Human Rights Committee General Comment No. 28, Equality of rights between men and women (article 3), 29/03/2000, CCPR/C/21/Rev.1/Add.10, para. 5. Similar views were expressed by other UN bodies; in this regard see United Nations General Assembly, Sixty-first session, Intensification of efforts to eliminate all forms of violence against women, A/RES/61/143, 30/01/2007.

32 ECrHR, Agdin v. Turkey, 25/09/1997, para. 86.

33 Prosecutor v. Akayesu, ICTR-96-4-T, Judgment of 2/09/1998.

34 Ibidem, para.688, in the same case see for example “the incident described by Witness KK in which the Accused ordered the Interahamwe to undress a student and force her to do gymnastics naked in the public courtyard [. . .] in front of a crowd, constitutes sexual violence”.

35 Prosecutor v. Kunarac and others, IT-96-32 and IT-96-23/H-A, Judgments of the appeals chamber, 12/6/2002, para. 32.

CEDAW identifies mechanisms to ensure the compliance of the State Parties to the Convention and its provisions. The creation of the Committee on Elimination of Discrimination Against Women (the Committee) is an example of such mechanisms. CEDAW determines a number of key functions to be performed by the Committee which were expanded through the adoption of the Optional Protocol to CEDAW in 1999 (OP). The OP allows, for examples, individual complaints to be submitted to the Committee, as well as permitting the Committee to conduct investigations in the practices of the State Parties to the Protocol.

3 Guarantees of Control and Supervision of the Implementation of the Convention


49Guarantees of Control and Supervision of the Implementation of the Convention

According to Article 20(1) of CEDAW, the Committee is to meet for a period not exceeding two weeks annually, in order to consider the reports from State Parties. The UN General Assembly has extended this period through the use of several successive resolutions. Thus, the Committee now meets for two sessions a year, lasting three weeks each.

In 1991, the Committee on the Elimination of Discrimination Against Women formed a pre-session Working Group. This group is composed of four or five Committee members who meet before the session of the Committee to prepare the agenda and the questions that will be raised by the Committee to the States during the session. The agenda and the list of questions are sent, in writing, to the relevant States. In December 2001, the Committee approved some modified rules of procedure regarding the new functions assigned to the Committee under the Optional Protocol to the Convention. The new rules contain regulations for the establishment of working groups and rapporteurs to assist the Committee to carry out its additional functions and tasks, including responding to the requests for urgent measures and examine the admissibility of individual communications.

Reports of States Parties Article 18 of CEDAW obliges State Parties to submit an initial report within one year from the Convention entering into force in their jurisdiction. Subsequently, they shall provide periodic reports every four years, and/or whenever the Committee requests them to do so. According to Article 18, the reports of the States Parties shall include “the legislative, judicial, administrative, and any other measures, which they have adopted to give effect to the provisions of the […] Convention”, as well as indicate any other progress they have made, with particular reference to the list of issues that the Committee compiled in response to the previous periodical report. The reporting procedure is the only mandatory method available to the human rights treaty bodies of the United Nations to monitor

Committee on the Elimination of Discrimination Against Women

Article 17 of CEDAW created an oversight committee to monitor the implementation of the Convention. The Committee consists of 23 experts, who are elected by secret ballot by the State Parties to the Convention, from a list of persons of high moral standing and competence in the field covered by the Convention. The Committee may not include more than one person from each State Party and have to meet the criteria of an equitable geographical distribution. This ensures that the Committee members represent a diverse cultural and legal spectrum. Members of the Committee work in their personal capacity, not as representatives of the State Parties they are nationals of. The membership term lasts four years, and members can be re-elected once their term has elapsed.

In contrast to the other human rights treaty bodies, the members of the Committee are mostly women. Members represent a broad spectrum of experts, including judges, academics, lawyers, and experts in psychology and sociology. In accordance with the procedural rules of the Committee, the Chairperson and Vice-Chairperson shall be elected by its members. The role of the Chairperson has evolved to increasingly represent the Committee at various international activities and events.

The primary function of the Committee is to control and supervise the implementation of the Convention through the consideration of reports submitted by State Parties, and in the case that State Parties to the Optional Protocol receive individual communications, and conduct investigations into their practices.

Article 21 of CEDAW authorises the Committee to make suggestions and General Recommendations based on concerns and considerations which arise from the examination of reports and information received from the States. General Recommendations are issued to State Parties and include the Committee’s views on the content and scope of the obligations of States Parties under the Convention.

The primary function of the Committee is to control and supervise the implementation of the Convention through the consideration of reports submitted by State Parties, and in the case that State Parties to the Optional Protocol to receive individual communications, and conduct investigations into their practices.



reports are intended to be a detailed and comprehensive description of the situation of women in the reporting country at the time of submission. These reports should address the constitutional, legislative and administrative status of the Convention in the domestic system. Reports also usually indicate the legislative measures taken by the State Party in ensuring the effective enjoyment of the rights guaranteed to individuals subject to the its jurisdiction.

The primary purpose of the periodic report is to provide a presentation of the actions and measures taken by the State Parties to enforce the Convention in the period between the initial report, or the previous periodic report, and the current one. State Parties are required to address: concerns raised by the Committee in its concluding observations of the previous report, the progress made in enforcing the provisions of the Convention, and persisting obstacles to the full implementation of the Convention. If the State Party is a signatory of the Optional Protocol to CEDAW, the State shall report on the measures taken to comply with the Committee’s views and recommendations on any relevant individual communication or any inquiry procedure undertaken by the Committee.

Examination of Reports In every session, the Committee establishes the State Parties who will have their reports considered during the following three sessions. The State Parties concerned are required to declare their acceptance of the deadline. Reports are generally considered in the presence of the State Party, however should it miss the allocated discussion period twice in a row, the Committee may consider the report in the absence of the State concerned. This option however has never been used yet.

Should additional information be required after the submission of a report, the Committee can request this three months prior to consideration of the reports. The Committee shall consider the report at a public meeting attended by the delegation of the

the implementation of the core human rights conventions. Compelling States to report intends to achieve a number of objectives, including:

1. Reporting contributes to increased compliance by States Parties to CEDAW, and to improve States practice in relation to the Convention at the national level.

2. The process of examining the reports by the Committee provides an opportunity to build a constructive dialogue between State Parties and the Committee on the application of the Convention.

3. The preparation of the reports provides the State with an opportunity to engage with the exact nature, content and scope of its international obligations under CEDAW, and to undertake a thorough evaluation of the condition of the rights of women at the domestic level. Reporting is also an opportune moment for State Parties to undertake a comprehensive review of the various measures they have undertaken to put the provisions of the Convention into practice.

4. The concluding observations adopted by the Committee, after examining the report, will contain a number of guidelines for State Parties on how to strengthen measures, policies, programmes and legislation, and to optimally implement the Convention.

Models and Content of Initial and Periodic Reports The Committee has adopted guidelines for the preparation of initial and periodic reports by State Parties. The most important principles contained in these guidelines are: to consider the previous recommendations of the Committee, to include detailed and comprehensive information on any reservation issued by the State Party concerned, and to indicate any obstacle or objection which may/does affect the full application of one or more provisions of the Convention. With regard to the form and content of reports there is a differentiation between the initial and periodic reports. Initial

The importance of reporting:

1. Reporting contributes to increase compliance by States Parties to CEDAW;

2. It helps build a constructive dialogue between State Parties and the Committee on the application of the Convention.

3. The preparation of the reports provides the State with an opportunity to engage with the exact nature, content and scope of its international obligations under the CEDAW, and to undertake a thorough evaluation of the condition of the rights of women at the domestic level.

4. It contributes to provide states with practical and direct advice on how to strengthen measures, policies, programmes and legislation, and to optimally implement the Convention

State Parties must differentiate between initial reports and periodic reports. Initial reports should introduce relevant legislation, policies and practices, while periodic are intended to provide updates on actions and measures taken by the State Parties to enforce the Convention.



Special Reports

Article 18(1)(b) of CEDAW requires State Parties to the Convention to submit reports to the Committee, whenever requested to do so. In 1999, the Committee determined that the primary purpose of requesting such reports is enabling the Committee to obtain information on possible grave violations of women’s rights36.

Specifically this reporting procedure is conditional on the existence of reliable evidence of systematic and gross violations of human rights of women, and such violations must be on the basis of sex. Once the report has been submitted, the Committee sets a date to discuss it. The meeting is conducted with the specific mandate of addressing the information that has been requested by the Committee. Post-meeting discussions occur between the Committee and the representative of the State concerned. The Committee provides brief concluding observations on the report.

General Recommendations The Committee on the Elimination of All Forms of Discrimination Against Women adopts General Recommendations on some of the articles set forth in CEDAW, or on topics relevant to the Convention and its mandate. They are considered to be instructions to assist State Parties in understanding the nature and scope of obligations arising from the Convention with the ultimate goal of facilitating implementation.

As of 2008, the Committee has produced 26 General Recommendations on relevant topics, such as violence against women, women migrant workers, the preferential interim measures mechanisms and the political participation of women.

In 1997, the Committee has identified three stages for the formulation and adoption of general recommendations. This includes undertaking dialogue between the Committee,

State Party or its representatives. In this occasion, the Committee seeks to engage in a constructive dialogue with the State Party to improve the implementation of the Convention.

In occasion of the discussion of the initial report, a delegation or a representative of the State Party has 45 minutes to present the report to the Committee. Subsequently the members of the Committee present their general observations and comments on the report, and then discuss it item by item. Subsequently the members of the Committee present their general observations and comments on the report. The State Party may provide verbal responses to questions raised, although it is customary to postpone this part of the meeting for a week in order to allow the delegation time to prepare the answers.

With respect to the periodic reports, a pre-session working group reviews and develops a list of questions and issues that should be presented to the State Party concerned for further information and clarification. After this the Committee will allow a five months period before the deadline for the discussion. In consideration of the report, the delegation of the State Party shall produce and carry out a 30 minute presentation. The members of the Committee will ask questions concerning the status of the implementation of the Convention to which the delegation should answer. The Committee then composes its concluding observations on the report in a private meeting. The concluding observations are considered to be the collective views of the Committee; these are both communicated to the State and published.

The final recommendations are significant, considering that they constitute a set of directives and guidelines that the State Party concerned should adhere to when working towards the implementation of the Convention at the national level. As mentioned above, these observations should be taken into account when preparing the following periodic reports.

The Committee on the Elimination of All Forms of Discrimination Against Women adopts General Recommendations on some of the articles set forth in CEDAW, or on topics relevant to the Convention and its mandate. They are considered to be instructions to assist State Parties in understanding the nature and scope of obligations arising from the Convention with the ultimate goal of facilitating implementation.

36 Committee on the Elimination of All Forms of Discrimination Against Women, twenty first session, decision 21/I 1999, Exceptional reports, page 2.



Content of the Protocol

Article 1 of the Optional Protocol recognises the competence of the Committee to receive and deal with individual communications. Articles 3 and 4 deal with the conditions of admissibility of the communication. Article 5 allows the Committee to contact the State Party with an urgent request to take steps to protect the alleged victim or victims from irreparable harm. Articles 6 and 7 address the mechanisms for consideration of the individual communication by the Committee. Article 7(5) authorises the Committee to follow-up with the State Party concerning its compliance with the views or recommendations made by the Committee.

The inquiry procedure is detailed under Article 8, 9 and 10 of the Protocol. Article 10 provides an opt-out clause: at the moment of ratification, State Parties may choose not to recognise the competence of the Committee to initiate and conduct an inquiry of this kind.

The protocol is characterised, in terms of content and provisions, by distinctive features which include:

1. State Parties who desire to sign, ratify or accede to the Protocol are not permitted to make any reservation to any of its provisions, as set out in Article 17.

2. States Parties are required, under Article 11, to take all

appropriate measures to ensure that no harm occurs to those subject to its jurisdiction, for submitting a complaint under the Protocol.

3. The Committee has the explicit power to follow up the opinions and recommendations expressed under the Protocol with the State Party concerned.

4. The complaint mechanism provides a means of remedy for victims of violations of rights guaranteed under CEDAW. Moreover, it allows the Committee to determine the

NGOs and other bodies concerned with the subject of the general recommendation. The Committee normally urges the relevant international agencies to be part of the debate as well. Subsequently, the members of the Committee develop a draft of the general recommendation; this will be subject to extensive discussion at the subsequent drafting session. The Committee may also invite experts to participate to this session. Finally, the Committee shall adopt the completed text of the general recommendation.

The Optional Protocol

Optional Protocols are contractual instruments related to existing Conventions. Their main purpose is to address gaps in the relevant Convention, to modify one or more of its provisions or to tackle issues that have emerged since the original drafting of the document. The option of signing, ratifying or acceding to the Protocol is at the discretion of each State Party to the relevant Convention.

The fundamental feature of the OP to CEDAW is that it introduces instruments to strengthen the implementation mechanisms available to the Committee, namely an individual communication (or complaint) mechanism and an inquiry procedure. The General Assembly of the United Nations adopted the Optional Protocol on 9 October 1999, and it entered into force on 22 December 2000. As of May 2009 the only two Arab States Party to the Protocol, are Tunisia and Libya37.

The Preamble to the Protocol identifies its primary purpose as “ensure[ing] the full and equal enjoyment by women of all human rights and fundamental freedoms and to take effective action to prevent violations of these rights and freedoms”.

Optional Protocols are contractual instruments related to existing Conventions. Their main purpose is to address gaps in the Convention, to modify one or more of its provisions or to tackle issues that have emerged since the original drafting of the document.

The option of signing, ratifying or acceding to the Protocol is at the discretion of each State Party to the relevant Convention.

The Optional Protocol is characterised, in terms of content and provisions by distinctive features, including:

1. Reservations to any of its provisions are not allowed (Art. 17);

2. State Parties are required to take all appropriate measures to ensure that no harm occurs to these submitting a complaint under the OP (Art. 11);

3. The Committee has the explicit power to follow up with Sate Parties;

4. The complaint mechanism provides a means of remedy for victims of violations of rights guaranteed under CEDAW;

5. The inquiry procedure allows the Committee to make specific recommendations that contribute to removing the core causes of discrimination.

37 As of June 2009, 97 countries acceded to the Optional Protocol.



the submission of a complaint on behalf of an individual or group of individuals, subject to their consent. This is a very important measure as it provides protection for woman in the event of reprisals, including revenge actions and allows them to overcome the obstacle of illiteracy, which may impede the victim from submitting an individual communication.

2. Temporal jurisdiction: in principle, the Committee does not have the jurisdiction to consider any communication that deals with a breach of a right guaranteed by the Convention which occurred prior to the Optional Protocol entering into force38. An exception is made for ongoing violations. Violations which occurred before the State Party acceded to the OP, but whose effect continues after the OP enters into force can be considered by the Committee.

3. Territorial jurisdiction: the Committee shall consider individual communications concerning violations of the Convention that took place within the jurisdiction of the State Party concerned. The notion of jurisdiction should be interpreted extensively, in line with other treaty bodies such as the Committee on Human Rights39, and the Committee against Torture40. This approach means that the victim can be someone who is residing in the territory of the State, or is a citizen of the State Party although he/she resides outside its territory, or it is someone within the territory of the state but not a citizen (e.g. resident).

4. Subject-matter jurisdiction: the subject of individual communication must be a violation of a right protected under CEDAW. Such violation may be carried out by public authorities itself; or by individuals where the authorities fail to take appropriate measures to ensure the respect for the rights protected under the Convention. This is very clear in Article 2(e) of the Convention, which considers that State Parties are required to: “take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise”. States Parties are responsible for the protection of the rights set out in the convention

obligations of State Parties to the Convention on the basis of the information presented in the individual complaint.

5. This protocol, thanks to the inquiry procedure, allows the Committee to make specific recommendations that contribute to removing the core causes that lead to discrimination against women

Individual Communications

The individual communication process detailed under the OP to CEDAW establishes in Article 2 that “communications may be submitted by or on the behalf of individuals or groups of individuals subject to the jurisdiction of a State Party claiming to be victims of a violation of the rights set forth in the Convention by the State Party”.

Conditions of Admissibility of Individual CommunicationsArticle 6 of the OP establishes that in order to ensure that the Committee can take action on individual communications, the complaint should comply with a set of requirements that determine its admissibility. If the case does not meet these requirements then the Committee does not have the mandate to proceed. Admissibility criteria are dealt with before analysing the merit of the complaints:

1. Jurisdiction of the Committee: the individual complaints should be submitted against a State Party to the Optional Protocol. As the individual complaint is a feature of this mechanism, the complaint should be submitted by an individual or group of people whose rights have been violated by a State Party to the Protocol and/or by a person/group of people who were subject to the jurisdiction of the State Party at the time of the violation. Article 2 of the Protocol, permits

38 Optional Protocol to CEDAW, Article 4(2)(e).

39 M. Yousuf, M. K. Al-Moussa, International Law of Human Rights, Part I: Sources and Means of Protection, Amman : House of Culture for Publishing and Distribution, 2005, p. 265 ff.

40 M. K. Al-Moussa, Guide for the Application of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishments, Amman: Adalah Center for Human Rights Studies, 2008, p. 29 et seq.



The subject of communication may cross the jurisdiction of the Committee on Human Rights, the Committee Against Torture, the Committee on the Elimination of Discrimination Against Women and the European Court of Human Rights, for example, however the victim has to choose one of those bodies to submit the communication to.

7. Not to abuse the mechanisms for submitting complaints: for this reason, the protocol stipulated that the communication should be in writing, not be anonymous, have merit or be supported by sufficient evidence and consistent with the provisions of the Convention.

Consideration of Individual Communications

Once the Committee has established that the communication is admissible, it will confidentially bring it to the attention of the State Party to try to and facilitate a national redress. The State Party shall settle the matter or provide clarification in writing to the Committee within six months after receiving the communication from the Committee. In the case of a settlement, the State Party must include the measure taken to solve the issue in its communication to the Committee41. If the State fails or refuses to find an acceptable solution to the issue, the Committee, in the light of data and information available, considers the communication. The examination process is confidential. Following the completion of the examination report, the Committee issues views, conclusions and recommendations to the parties concerned. The State Party must examine the views and recommendations of the Committee, and provide it with written explanation of any action taken in the light of these recommendations. The Committee shall include a summary of the communications in its annual report.

vertically, in the public sphere, and horizontally, in the private sphere.

In terms of subject-matter admissibility, it is essential to note that the rights protected under the Convention are considered in terms of the contents and scope of CEDAW, interpreted by the Committee. For example, the Committee has interpreted Article 1 of the Convention to include violence against women, although there is not specific reference to violence within the Convention. If the subject of the individual communication is violence against women, the complaints cannot be rejected on the ground of not meeting the subject matter admissibility criteria because the Committee considers violence against women to be a violation of the Convention

5. The exhaustion of all available domestic remedies: Article 4(1) of the OP establishes that all domestic remedies must be exhausted before the complaint can be considered by the Committee, as the State should be the primary body to protect human rights. National remedies include the national judiciary and administration system. Article 4 indicates that this requirement is satisfied if the national “remedies is unreasonably prolonged or unlikely to bring effective relief”.

6. The subject of the communication should not be under

consideration by any similar international bodies or by the Committee itself: Article 4(2)(a) of the Protocol indicates that the complaint is not admissible if the Committee, or any other “procedure of international investigation or settlement” is considering or has previously considered the complaint. This applies to any similar international procedures, including regional and international bodies concerned with the implementation of human rights conventions that have individual complaint procedures. However this criterion does not apply to other international instruments that deal with the general situation in a country or with a particular issue, for example mechanisms established under ECOSOC resolution 1503.

41 The Optional Protocol to CEDAW, article 6.



the issue within a certain time frame. The committee is tasked with examining additional information, including from INGO’s, NGO’s, and UN agencies. The Committee may appoint one or more of its members to conduct an investigation, and to report back in a timely manner. The investigation may include a visit to the State Party concerned upon obtaining its consent.

After examining the findings, the Committee transmits this information to the State Party concerned, along with any comments or recommendations on the subject. The State Party concerned will be given a period of six months to make observations or to resolve the issues pertaining to the investigation. Article 9 of the Protocol grants the Committee the power to request that the State Party concerned include information on the measures taken to respond to the investigation findings in its periodical reports, in accordance with Article 18 of the Convention.

Some cases that require the use of the inquiry procedure may be: the case of a State Party to the Convention that imposes extensive restrictions on the political participation of women, cases in which the State Party assists through act or omission the phenomenon of trafficking in women, or the occurrence of widespread rape during armed conflict or the exposure of women to widespread violence.

The Protocol has recognised in Article 7(e), the authority of the Committee to follow up with State Parties who have been subject to the complaints mechanism. This is usually done by requesting that the State Party provides information about this matter in their subsequent periodical reports.

Examples of issues that can potentially be subject to an individual complaint are: the loss of nationality due to marriage to a non-national; the case of impeded access to courts due to patriarchal systems which tie the rights of women to their husbands; arbitrary termination of employment or being denied employment due to pregnancy or the potential of being/getting pregnant.

Inquiry Procedure The inquiry procedure outlined in Articles 8, 9 and 10 of the Optional Protocol to CEDAW is similar to that contained in Article 20 of the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment. As mentioned above, states might decide to opt out of this mechanism through a declaration at the time of signature, ratification or accession. The State may withdraw its declaration at any time by notifying the Secretary-General of the United Nations.

This procedure requires, in Article 8, that “If the Committee receives reliable information indicating grave or systematic violations by a State Party of rights set forth in the Convention, the Committee shall invite that State Party to cooperate in the examination of the information and to this end to submit observations with regard to the information concerned”.

The source of this information may be non-governmental organisations (NGOs), associations concerned with women’s rights or any individual. Upon receiving such information, the Committee invites the State Party concerned to provide comments, state a position and provide explanations regarding

Jordan ratified CEDAW in July 199242. The Convention was published in the Official Gazette on 1 August 2007, Volume No. 4839, a considerable time after ratification, becoming part of the legal system of Jordan. As of 2009, Jordan has provided the Committee on the Elimination of Discrimination Against Women with three reports; the last one was submitted on 10 March 200643. There are a number of topics and key issues to be addressed when examining the development of the Convention in Jordan, such as Jordan’s reservations to the Convention, Jordan’s accession to the Optional Protocol and, most importantly, the status of the Convention and its legal value in the Jordanian legal system, as well as the harmonisation of national legislation with Jordan’s obligations under CEDAW.

42 It should be noted that Jordan signed the Convention on 3/12/1980. Between the signature and the ratification 12 years passed by.

43 Jordan submitted its preliminary report to the Executive Committee on 27/10/1997. The second was submitted on 19/11/1999 and the third and fourth were merged together in a single report and presented on 10/3/2006. The fifth report should have been submitted on 31/7/2009.

4 The Convention on the Elimination of All Forms of Discrimination Against Women in the Jordanian Legal System


65The Convention on the Elimination of All Forms of Discrimination Against Women in the Jordanian Legal System

The Committee on the Elimination of Discrimination Against Women has stated on several occasions, that the reservations of Arab and Islamic countries, including Jordan, are in contrast with the purpose of the Convention. They also emphasised their concern, with particular regard to Articles 2 and 16 of the Convention, which affect the raison d’être of the Convention itself45. Since 1998, the Committee has undertaken a constructive dialogue with these countries to encourage them to withdraw these reservations. In the case of Jordan, this constructive dialogue led, in 2009, to the withdrawal of the reservation to article 15(4)46.

These reservations, despite the fact that they unlawfully contrive the ethos of the Convention, have not precluded Jordan from being a party to the Convention. Neither the Committee, nor the other State Parties, refused the validity of the application of the treaty in Jordan due to these reservations. The reservations made by Jordan do not signal a rejection of the treaty, although they do make its compliance to CEDAW in its entirety, impossible. Despite these reservations, Jordan has embraced its commitment to the Convention, which is evident from its continued efforts to give effect to the obligations arising from it in its national legal system, including publishing the treaty in the Official Gazette, as well as withdrawing the reservation to article 15(4)47.

It can be suggested that Jordan’s reservations to particular articles contained in CEDAW were not intended to undermine the spirit of the Convention itself; rather they reflect a temporary solution to respond to fundamental ideological, social, and cultural factors at play in Jordan. As these obstacles are gradually eroding, Jordan is beginning to withdraw or modify these reservations accordingly.

It is essential to note that there is a legal differentiation between the consent to be bound by the Convention and the existence of the reservations48. The reservation does not assume a lack of willingness to comply with the principles of CEDAW. This is evidenced through the fact that Jordan has withdrawn its reservation to Article 15(4), as previously mentioned. The

Jordan’s Reservations to the Convention

Jordan has made reservations to some CEDAW provisions. They relate to Article 9 paragraph 2, Article 15 paragraph 4 and Article 16 paragraphs 1(c)(d)(g). Jordan withdrew its reservation on Article 15 paragraph 4 in 2009, which means that it now adheres to the idea of equality between women and men in regards to the freedom of movement and choice of residence, which was previously seen to be incompatible with Jordanian law. For instance, previous to the withdrawal of this reservation, a women’s residency depended upon that of her husband, in accordance with Islamic Law.

Jordan has maintained its reservation to the other two Articles. Article 9(2) recognises women’s equal rights with men in respect to the nationality of their children. Article 16(1) paragraphs (c)(d) and (g) establishes that “States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women: (c) The same rights and responsibilities during marriage and at its dissolution; (d) The same rights and responsibilities as parents, irrespective of their marital status, in matters relating to their children; in all cases the interests of the children shall be paramount; (g) The same personal rights as husband and wife, including the right to choose a family name, a profession and an occupation”.

Jordan has justified these reservations on the basis that they contravene Jordanian law and Islamic law in the field of family rights.

It can be argued that the Jordanian reservations are illegal and void44 because are incompatible with the provision in Article 28(2) of CEDAW, that does not authorise State Parties to make reservations which violates the objects and purposes of the Convention.

Jordan has made reservations to some CEDAW provisions. They relate to Article 9 paragraph 2, Article 15 paragraph 4 and Article 16 paragraphs 1(c)(d)(g). Jordan withdrew its reservation on Article 15 paragraph 4 in 2009.

45 Report of the Committee on the Elimination of Discrimination against Women (Eighteenth and nineteenth sessions), 1998, A/53/38/Rev.1, para 9.

46 It should be noted that both Morocco and Bangladesh were among the Islamic countries that have withdrawn reservations they previously made to some of the provisions of the Convention. Among Non-Islamic or Arabic countries that have already done the same are: Brazil, Bulgaria, Canada, France, Hungary, Ireland, Jamaica, Malawi, Poland and Romania.

47 Article 16 is an essential article of the Convention. Article 9 including the provision of paragraph 2, which obligates States parties to the Convention to equality between women and men in regards to the nationality of their children, can be considered an extension of the provisions contained in Article 16. In fact, the latter includes an ad hoc provision for equal rights in marriage and the link between the two articles becomes evident when considering that granting equal rights in marriage implies granting mothers to pass their nationality to their children. This is confirmed also by the Committee on Human Rights, in its General Comment No. 28, para 25. See also article 30 of the Covenant (equality between men and women).

48 M. K. Al-Moussa, supra note 44, p. 390.

44 M. K. Al-Moussa, the Impact of Reservations Made by States, "The Journal of Law", University of Bahrain , 2006.



made to Article 33(2) retained only the two aforementioned types. The Higher Council highlighted, considering the amended article, that treaties shall take effect without the need for consent of the Parliament unless resulting in changes in the territory of the state or its sovereignty, affect the public or private rights of Jordanians, or cause the treasury to incur some expenditure. If not resulting in such effects, the agreements enter into force as soon as they are concluded by the Executive Branch.

It is quite clear that the Higher Council for Interpretation of the Constitution when considering Article 33(2) interprets the word masas to mean prejudice or to have a negative effect upon the public and private rights of Jordanians, rather than simply causing a change to these rights51. CEDAW, like other human rights conventions, does not involve a threat or negative change in the rights of Jordanians, by virtue of its object and purpose. Therefore the Convention is exempt from requiring the authorisation of the Parliament to enter into force on these grounds.

The ratification procedure adopted by the Executive Branch in Jordan to publish CEDAW in the Official Gazette bypassing Parliamentary approval, is in fact consistent with Article 33 of the Jordanian Constitution, and brings the Convention into full legal effect in the Jordanian judicial system.

Notwithstanding, the fact that the Jordanian Constitution did not stipulate a clear position regarding the relation between international law and domestic law, the general principle, consistent with the opinion of the Higher Council for Interpretation of the Constitution, conveys that international treaties consistent with Article 33 have direct effect in the Jordanian system.

In addition to the automatic integration of the Convention, Jordanian legislators could resort to an incorporation act which consists of converting the rules and provisions contained in CEDAW through the enactment of new or amending existing

legal and social challenges which have been an obstacle to the realisation of the equality between women and men in the freedom of movement and choice of residence have changed, allowing the Jordanian state to remove the relevant reservation.

Generally speaking, it should be noted, that there have been instances where the judiciary of a State Party to CEDAW has actually ruled that reservations to the Convention were invalid and that the State Party cannot reduce and separate its legal obligations under CEDAW through the use of reservations49, demonstrating that domestic courts may actually decide to act in this direction.

Incorporation of CEDAW into the Jordanian Legal System The mechanisms to integrate international treaties and conventions into the Jordanian Legal System are not specifically defined by the Jordanian Constitution. Article 33 of the Constitution gives the authority to conclude international treaties exclusively to the King. Paragraph 2 of the same article requires the consent of the National Assembly in order to bring into force “treaties and agreements which involve financial commitments to the Treasury or effect the public or private rights of Jordanians”. Treaties which do not fall into these two categories come into effect as soon as they are published in the Official Gazette. The fact that the Constitution explicitly requires that these two kind of treaties must be approved by the National Assembly, also entails that agreements that differ from these explicitly named do not need to follow the same iter to enter into force.

The Higher Council for the Interpretation of the Constitution has addressed this issue in the Interpretative Resolution No. 2, 199550. Prior to the amendment of Article 33(2) in 1958, several kinds of international agreements required the approval of the Jordanian National Assembly in order to be valid, while the amendment

Article 33 of the Constitution gives the authority to conclude international treaties exclusively to the King. Paragraph 2 of the same article requires the consent of the National Assembly in order to bring into force “treaties and agreements which involve financial commitments to the Treasury or effect the public or private rights of Jordanians”. Treaties which do not fall into these two categories come into effect as soon as they are published in the Official Gazette.

The ratification procedure adopted by the Executive Branch in Jordan to publish CEDAW in the Official Gazette bypassing Parliamentary approval, is in fact consistent with Article 33 of the Jordanian Constitution, and brings the Convention into full legal effect in the Jordanian judicial system.

49 SHRI D.K. BASU v State of West Bengal, 18/12/1996, para. 43.

50 Official Gazette, page 369, 1224, 16/4/1995. 51 Ibidem.



of these treaties as they would do with any other domestic legislation.

On a practical level, this means that judges in Jordan should work in accordance with the provisions of CEDAW. When there is conflict between the Convention and domestic legislation, the provisions of the Convention should be applied.

However, it is important to note that the principle of the superiority of CEDAW is based on the provisions of the Court of Cassation and not the Constitution itself. This means, in practice, that this approach might be subject to change, as it would be sufficient for the Court of Cassation to revise its position in this regard. In addition, the Jordanian legal system does not operate on the principle of judicial precedents; the lower Jordanian courts, theoretically, are not bound to follow the position of the Court of Cassation in this regard.

Another important issue relates to the fact that the provisions of the Convention may be in conflict with the provisions of the Jordanian Constitution itself; in this case the Constitution prevails. Article 6 of the Jordanian Constitution deals with the principle of equality and prohibition of discrimination, but it does not refer to sex as a ground for discrimination. This issue highlights both the necessity to amend the Jordanian Constitution to ensure the superiority of international conventions in general, or of human rights treaty law at the very least, and the need to fully integrate the principle of equality between men and women in Constitution. Until these changes occur the status of CEDAW will remain unstable, and in some cases ineffective. Moreover, such modifications are desirable in view of Jordan’s obligations under the Convention.

legislation in line with the provisions of the Convention. For example the enactment of legislation for the protection against domestic violence, including the principle of equality between women and men in the Labour Code, or the enactment of legislation to guarantee women equal rights with men in education and health.

Status of the Convention in the Jordanian Legal System

The Jordanian Constitution does not define the status or the value of international treaties and conventions once published in the Official Gazette. The Jordanian Court of Cassation however, has considered this matter extensively. The jurisprudence of the Court demonstrates that, in cases were international treaty law and domestic law are in contradiction, international law prevails over domestic law. On 13 November 1993, in case No. 936/1993 the Court of Cassation stated “the international conventions concluded by the State are superior to the national laws in force and they should be applied even if they are in contradiction with the provisions of these laws”. Accordingly, the Court of Appeal considered that to disregard the application of the Riyadh Arab Convention on Judicial Cooperation and adopt a decision in accordance with the Law Enforcement of Foreign Judgments is in violation of the principle of the supremacy of international treaty law52.

The position of the Court of Cassation on the superior nature of international treaty law has been consistent. The Court has emphasised on many occasions that “international agreements are the same as local legislation when they become effective in the Kingdom. Judges should apply these provisions like any other legislation in force in relation to the relevant dispute […]”53. It is quite clear that the Court of Cassation of Jordan stresses two important issues: firstly the superiority of the international treaties published in the Official Gazette over domestic law, and secondly the duty of the judiciary to deal with the provisions

52 The Journal of the Bar Association, volume no. 1, 1996, page 5.

53 The Journal of the Bar Association, volume n. 6, decision 29/1986 issued on 01/01/1986, p. 1637.

The Court of Cassation of Jordan stresses two important issues: firstly the superiority of the international treaties published in the Official Gazette over domestic law, and secondly the duty of the judiciary to deal with the provisions of these treaties as they would do with any other domestic legislation. On a practical level, this means that judges in Jordan should work in accordance with the provisions of CEDAW. When there is conflict between the Convention and domestic legislation, the provisions of the Convention should be applied.



The Importance of Jordan’s Accession to the Optional Protocol

There is no doubt that acceding to the Optional Protocol to CEDAW is an important step to ensuring the full respect of the provisions of the Convention. It is not sufficient, both theoretically and practically, for State Parties to CEDAW, including Jordan, to adopt the Convention without recognising the procedural guarantees to ensure compliance. As shown in the previous chapter, the individual complaints mechanisms is an important tool to ensure the effective respect for the substantive provisions contained in the Convention.

Adherence to the Protocol will stimulate the Public Authorities in Jordan to put the provisions of the Convention into practice in order to avoid individual complaints being brought against Jordan. Moreover, it will urge the authorities to ensure national remedies to violations. This will significantly contribute to the removal of all laws and practices that discriminate against women in Jordan.

Acceding to the Protocol would also contribute towards the appropriate application and interpretation of the Convention in Jordan in light of recommendations and views of the Committee; it also assists in creating general awareness and understanding of the human rights guaranteed to women, and the necessity to remove all forms of discrimination based on sex.

Judges, prosecutors and lawyers, have a major role in the enforcement of the provisions of CEDAW in Jordan. Legal practitioners should apply human rights standards when dealing with cases relating to discrimination against women and they should adhere to the principles and legal provisions enshrined in CEDAW. Legal practitioners play an imperative role in detecting women’s rights abuses and seeking remedy through the prosecution and punishment of perpetrators. This applies across the spectrum of discrimination including, for example, trafficking of women, exploitation, prostitution and pornography. 5 The role of judges, prosecutors

and lawyers in enforcing CEDAW

74 The role of judges, prosecutors and lawyers in enforcing CEDAW 75The role of judges, prosecutors and lawyers in enforcing CEDAW

conform to Jordanian’s international obligations. If the judiciary fails to do so, Jordan’s international liability might emerge. Furthermore international law requires states to respect the provision of CEDAW, and does not permit the prioritising of national laws as a way to avoid international commitments55. Therefore, it entails the possibility of using the provisions directly in domestic tribunals providing effective remedies to victims of violations.

The Committee on Economic, Social and Cultural Rights, in its General Comment No. 9 on the domestic application of the International Covenant on Economic, Social and Cultural Rights, has stated that “generally, all international human rights standards that are legally binding should be applied immediately in the local legal system of each State Party, thereby enabling individuals to seek enforcement of their rights before the national courts and judicial bodies”56.

The concept of direct applicability of international human rights law is one of the core principles recommended by treaty bodies. It is important to mention, that State Parties should include in their reports to the Committee whether the Convention is directly applicable domestically immediately upon ratification, whether the provisions are guaranteed by the Constitution and other national laws, and if CEDAW can be invoked before and applied by courts and administrative authorities57.

Therefore, Jordan, like other States Parties to CEDAW, is responsible at the international level to ensure the direct application of the provisions of the Convention within the national judicial system. The main question to be considered in this context is whether the Jordanian legal system itself allows judges and lawyers to apply the Convention in their legal practice.

To enable legal practitioners to apply the Convention directly, the following elements should be available:

In sum, judges, prosecutors and lawyers all have a major role in protecting, promoting and securing the human rights of women in general, and in particular those set forth under CEDAW. They hold special responsibility towards any manifestation of violence against women, regardless of whether this is conducted by the public authorities, private citizens, or permitted under socio-cultural norms. The legal profession has, in addition, a vital role in activating and ensuring protection for other rights: such as marriage rights, the right to litigation, equality before law, equality in education, health care, and other labour rights54.

A major question should be considered in this regard: how can the legal profession utilise CEDAW in practice in terms of both the provisions of the Convention itself within the Jordanian legal system?

Legal practitioners can apply CEDAW in a number of ways, including through the direct application of the provisions of the Convention, or using it as an interpretative tool. Domestic law should be interpreted so as to be in conformity with human rights norms, including CEDAW. Judges should gradually locate domestic law in its international context.

The Direct Applicability of CEDAWThe concept of direct applicability of international law allows the judiciary to settle legal disputes based on CEDAW and/or legal practitioners to invoke the provisions of the Conventions in their legal arguments without requiring any prior legislative action by the national authorities of the State Party. In the context of the Jordanian judicial system, this means that judges, lawyers and prosecutors should seek to use CEDAW as the basis for building their arguments.

The duty of judges and prosecutors in Jordan to apply the provisions of CEDAW is line with the concept that national courts are state organs, and as such, they are required to

54 M. K. Al-Moussa, The Application of International Conventions on Human Rights in the Jordanian Judiciary, The Empowerment Center for Legal Aid and Human Rights, 2009. See also, H. Keller and A. Stone Sweet, A Europe of Rights. The impact of the ECHR on National Legal Systems, pp.13-14; p.48; p.50 and pp.682-686; Global Rights, Promoting Women’s Human Rights. A Resource Guide for Litigating International Law in Domestic Courts, 2006, p.18.

55 The Vienna Convention of the Law of Treaties, supra note 14 Article 27.

56 General Comment No. 9, para 4, in Basic International Charters of Human Rights, Comments and General Recommendations of The Bodies of The Convention Concerned, Amman: Adalah Center for Human Rights studies, Page 125.

57 Committee on the Elimination of Discrimination against Women, Compilation of Guidelines on the Form and Content of Reports to be Submitted by State Parties to the International Human Rights Treaties, 05/05/ 2003, HRI/GEN/2/Rev.1/Add.2.

Legal practitioners can apply CEDAW in a number of ways, including through the direct application of the provisions of the Convention, or using it as an interpretative tool. Domestic law should be interpreted so as to be in conformity with human rights norms, including CEDAW. Judges should gradually locate domestic law in its international context.

The concept of direct applicability of international law allows the judiciary to settle legal disputes based on CEDAW and/or legal practitioners to invoke the provisions of the Conventions in their legal arguments without requiring any prior legislative action by the national authorities of the State Party.


compared to national laws. It is evident that there is nothing in the Jordanian legal system that prevents the immediate application of the provisions of CEDAW upon ratification, as prior legislative measures are not required. The superiority of international over domestic law, with the exception of the Constitution, has been consistently argued by the Court of Cassation. It would be important to amend the Constitution in order to clearly establish the supremacy of international law; this would make the status of Conventions in Jordan more stable and not subject to the rulings of the Court of Cassation.

3. Facts and circumstances of the case: this element is no less important than the aforementioned ones. The direct impact of CEDAW’s provisions is connected to the facts of the case, the circumstances of the dispute and the goal that each side of the dispute seeks, in addition to the jurisdiction of the Court to consider the case. Moreover, in order to trigger the applicability of CEDAW, it is necessary to have an involvement of the state through its bodies in the facts of the case itself.

Working towards the application of CEDAW within the Jordanian legal system is a process that differs from one case to another, and is a process that occurs when considering each individual case.

The Direct Applicability of the Principle of Equality

The Human Rights Committee stated in General Comment No. 31, that the enjoyment of the rights recognised in the ICCPR can effectively be guaranteed by the judiciary in various ways, including the immediate application of the Covenant or other similar provisions58. Among the other most important means of allowing the direct application of human rights conventions in general and CEDAW in particular, is considering the principle of equality and non-discrimination as critical to the protection of human rights.

1. Accuracy and clarity of the Convention’s rule relevant to the right: the more accurate the content of the Convention’s legal rules are, the wider the possibility of its direct application becomes. There is no doubt that a significant number of provisions and rights contained in CEDAW are accurate and clear in their content, such as: the core principle of discrimination against women (Article 1); the right to participate in public and political life (Article 7); the right to acquire, change or retain nationality and to pass it to their children or husbands (Article 9); the right to education (Article 10); the right to work (Article 11); the right to equality before the law (Article 15), and equal rights in relation to marriage (Article 16). The core principle of equality between women and men that underpins these articles should result in their immediate application within the domestic legal system.

It may not be possible for other articles to be applied immediately due to conditions set out within the Convention itself requiring State Parties to take appropriate measures to bring provisions into force, such as enacting national legislation.

2. The status of CEDAW in the Jordanian legal system: obviously the direct application of CEDAW is affected by its status within the Jordanian legal framework, and the structure which allows international conventions to be incorporated nationally. CEDAW itself does not include substantive and procedurals provisions which may assist integrating the convention with domestic system. This means that its effectiveness and applicability will be connected to a wide degree with the structure of the Jordanian legal system itself. It is at this level that the role of legal practitioners becomes essential in securing the rights set forth in CEDAW, as the lack of judicial and procedural guarantees may limit the protection of these rights.

The status of CEDAW within the Jordanian legal system has been discussed throughout chapter 5. It has been concluded that the jurisprudence of the Court of Cassation is clear in stating the superiority of international treaty law

58 HRC General Comment No. 31, the Nature of the General Legal Obligation Imposed on States Parties to the Covenant, 2004, Para. 15.


The Interpretative Use of CEDAW

Using human rights conventions to interpret domestic legislation is one of the most important alternative means to the direct application of international human rights law. In fact, even when judges and prosecutors in Jordan are unable to directly apply all the provisions of CEDAW with immediate effect, they are required to seek alternative means to uphold Jordan’s international obligations arising from the Convention mainly through the interpretative use of the Convention.

Using CEDAW as an interpretative standard does not mean merely using it as a way of clarifying ambiguous national legal rules, but it practically and legally means that Jordanian judges should adopt the meaning most consistent with the Convention when interpreting relevant national laws.

The possibility of using CEDAW as an interpretative tool in applying Jordanian law is available to judges and prosecutors, considering that the Court of Cassation of Jordan has ruled on the superiority of international conventions over Jordanian law. Even if in some State Parties the authority of judges to apply the Convention as an interpretative tool is derived from the national Constitution61, the absence of a similar provision does not prevent the courts of other States Parties from adopting this approach.

Domestic courts that use CEDAW as an interpretative tool should rely on the notion of dynamic and teleological interpretation of the Convention. A dynamic interpretation means that the provisions of CEDAW should be interpreted in relation to contemporary ideas and conditions continuously readapting to changing times, not in the light of the circumstances prevailing at the time of its drafting62. A teleological interpretation of the Convention means that a judge should interpret the provisions of CEDAW so as to promote the objective for which the Convention actually was made. In this sense, the idea of teleological interpretation has become one of the basic elements upon which the national judiciaries rely when using the Convention as an interpretative tool.

This means that the enjoyment of internationally recognised human rights is conditional upon equality and non-discrimination. If this principle is not enacted, the full realisation of human rights is not possible, neither theoretically or practically. To allow for the direct application of this principle, legal practitioners must base their cases on the principle of equality when it is evident that a woman is not being treated equally to a man because she is a woman. The court should make its decision following the same rationale.

The national judiciaries of many State Parties to CEDAW have adopted this approach. Among important examples to consider, is the judgment of the Supreme Court in Costa Rica, of 11 November 199259. In summary Article 14(5) of the Costa Rican Constitution recognised the citizenship rights of a foreign woman that marries a Costa Rican man. It did not however recognise the same for a foreign man that marries a Costa Rican woman. Her citizenship rights did not extend to her spouse. The court decided to abolish Article 14(5) of the Constitution as it discriminated on the basis of sex. Costa Rica adopted the provisions contained in both ICCPR and the Inter-American Convention on Human Rights relating to equality and non-discrimination. In conclusion, the court ruled that citizenship rights for non-national spouses of both male and female Costa Rican citizens would be equal.

The national judiciaries of some Arab countries, who are party to CEDAW, such as Tunisia, directly apply the provisions of this Convention based on the principle of equality and prohibition of discrimination. On 27 June 2006, a Tunisian court has ruled on the invalidity of a marriage contract concluded in Egypt between a Tunisian and his second-wife, because it violates the principle of equality between spouses, provided for in the Universal Declaration of Human Rights, and Articles 1, 2 and 16 (c) of CEDAW60.

59 C. Sciotti, La Concurrence Des Traités Relatifs Aux Droits de L’homme Devant Le Juge National, Bruxelles: Bruylant, 1997, p.46.

60 N. Abiad, Sharia , Muslim States and International Human Rights Treaty Obligations: A Comparative Study, London: British Institute of International and Comparative law, 2008, p.157.

61 See articles 231/32 of the Constitution of South Africa, 1996, Article 6/2 of the Constitution of Georgia, 1991, Article 17/1 of the Constitution of Russia, 1993 and Article 10/2 of the Constitution of Spain.

62 M. K. Al-Moussa, The Interpretation of International Human Rights Conventions in the Light of the Practice of Treaties Bodies, “Journal of Law”, University of Kuwait, first issue, year 28, 2004, p. 257.

Using human rights conventions to interpret domestic legislation is one of the most important alternative means to the direct application of international human rights law.A dynamic interpretation means that the provisions of CEDAW should be interpreted in relation to contemporary ideas and conditions continuously readapting to changing times.A teleological interpretation of the Convention means that a judge should interpret the provisions of CEDAW so as to promote the objective for which the Convention actually was made. In this sense, the idea of teleological interpretation has become one of the basic elements upon which the national judiciaries rely when using the Convention as an interpretative tool.


the Covenant relating to equality between women and men, this document can also be used as a relevant instrument when building cases.

It has been noted above that Jordan’s reservations are not legally valid, and therefore lawyers can challenge such reservations on the basis of Article 28(2) of CEDAW. It is possible that a Jordanian judge, when examining the compatibility of the reservations with article 28(2), will find the reservation to be illegitimate as they violate the objective and purposes of the Convention. In addition, the reservations were not published in the Official Gazette together with the Convention, therefore it can be argued that they are not legally binding at the domestic level and that the Convention can be applied In Jordan in its totality. The judiciaries of some State Parties to human rights conventions have opted to examine the legality of reservations made by their own States.

Legal practitioners may also choose to invoke the provisions set forth in other human rights conventions on issues related to women’s rights because they are more effective in achieving the desired outcomes. For example, in the case of a woman victim of violence that caused serious physical or moral pain by a public official, lawyers may use article 1 or 16 of CAT. An act committed by the public official, in fact, can amount to torture in accordance with the definition provided in Article 1 of CAT, or to discrimination in accordance with the definition contained in Article 1 of CEDAW63.

There is another issue that is worth mentioning at this point; the difference in views related to women’s rights between the Arab Charter on Human Rights and CEDAW should not undermine the implementation of the Convention’s provisions. The Arab Charter itself, in Article 42 stresses that the ratification of the Charter should not impede State Parties from their commitments deriving from other international or regional agreements. The Arab Charter on Human Rights has been published in the Jordanian Official Gazette in 2004.

Thus, legal practitioners have a key role in protecting and securing respect for the principles and provisions stipulated in CEDAW. Principally, this role consists in operating within the framework of the Convention while exercising their functions, either through direct application of its provisions or through the use of CEDAW as an interpretative standard.

CEDAW in Lawyers’ Practice As noted earlier, the most effective method for guaranteeing the implementation of CEDAW is through the direct application of its provisions. Under this approach lawyers can build their litigation strategies on provisions of the Convention, based on the knowledge that international treaty law is superior to national law.

When building a case, lawyers must invoke the principles and legal provisions set forth in the Convention, rather than simply applying the literal meaning of the text. It is desirable that cases are based not strictly on the Convention but also on the authoritative interpretations provided by the Committee, and taking into consideration the relevant jurisprudence of State Parities, particularly those of Arab and Islamic countries.

In some cases it may be difficult for lawyers to use all the provisions and articles of the Convention due to the reservations made by State Parties. In this case they can look for similar provisions and principles contained within other human rights treaties. For example, Jordan’s reservation to articles 9(2) and 16(1)(c) of CEDAW may impede directly invoking these articles in litigation, but there are other means to activate the protection of the rights contained within these provisions. Legal practitioners can call upon Article 2(3) and 26 of the ICCPR, which contain the principle of equality and non-discrimination on the basis of sex, as Jordan has not placed a reservation on any of the articles of this Covenant. In addition, the Committee on Human Rights used General Comment No. 28 to discuss Article 3 of

63 General Recommendation No.19, supra note 19, para. 1, 6 and 7.


them with the necessary skills to understand the dimensions and implications of the rights protected under those conventions, and how to apply them in the light of experiences of national courts in different States.

3. It is an advocacy tool to put pressure on competent authorities in Jordan to modify and harmonise legislation in force in Jordan in a manner consistent with Jordan’s obligations under CEDAW.

4. It urges and encourages judges to directly apply the provisions of the Convention, and reminds them of the importance of the preferred method of its application by the Committee on the Elimination of Discrimination Against Women.

5. It leads to the discovery of violations, abuses and injustice committed against women and assists in documenting these violations. It also contributes to highlight other forms of discrimination against women that are not obvious, particularly those relating to social, cultural or religious factors.

6. It urges the authorities and parties concerned at the national level to find effective remedies for women whom right’s protected under the Convention has been violated. This process may also lead to Jordan’s accession to the Optional Protocol to the Convention, as experience demonstrates that countries that provide effective remedies in their national systems for victims are more likely to become State Parties.

Finally, it is important to emphasise that lawyers should refer to case law issued by other State Parties to CEDAW. This element is important for judges as it provides the opportunity to follow positive and clear models in the application of the provisions of the Convention itself. In addition, the reference to the rulings of domestic courts of other countries will put some kind of pressure on judges in Jordan regarding the implementation of the Convention. Public Authorities in Jordan would not wish to be perceived as being less aware and ‘advanced’ than other States, in particular when it comes to neighbouring countries or those that share the same cultural and social heritage as Jordan. In Africa this aspect was already proven effective, for example, the Constitutional Court of South Africa has referred to the judgments of the courts of Zimbabwe, Nigeria, Tanzania and Ghana on the application of human rights conventions including CEDAW64.

Certainly, when domestic courts refer to decisions of other national courts, they do not do so because these judgments are binding, but because they are seeking to enhance the interpretation of the Convention and enrich arguments in the cases they deal with.

Why Should Lawyers Invoke CEDAW in Domestic Courts?

There is no doubt that the reliance on and reference to CEDAW by lawyers in Jordan when dealing with their cases, is very important for a number of reasons:

1. It contributes to the general awareness of the Convention as the most important principles and legal provisions aim at eliminating all forms of discrimination against women.

2. It highlights the need for training judges on CEDAW, in particular, and on other human rights conventions in general. It also stresses the importance of providing

64 Global Rights, Promoting Women’s Human Rights. A Resource Guide for Litigating International Law in Domestic Courts, 2006, p. 65.

Domestic courts in many countries and different legal systems have applied the provisions of CEDAW. The issues and topics on which the Convention was used include, among others, violence against women, equality in marriage rights, labour rights of women and women’s right to confer their nationality to their children.

The most important cases that can be invoked by lawyers to support their litigation strategy and to facilitate the application of the provisions of the Convention in the national courts are as follows: 6 Models of application of

CEDAW in Different Legal Systems

86 Models of application of CEDAW in Different Legal Systems 87Models of application of CEDAW in Different Legal Systems

discrimination were outlawed, very little would have remained of customary law.

In 1992, the Supreme Court in Botswana concluded in its ruling that the Citizenship Act was discriminatory against women, and violated the Constitution. The individual rights that were violated by the Act included: the right to liberty, the right to protection of the law, protection of being subjected to degrading treatment, and not to be discriminated against on the basis of her sex. In addition to the National Constitution, the opinion of the court relied on a number of international conventions even though at that time Botswana was not signatory to them. These conventions included: CEDAW, the Convention on the Rights of the Child, the Universal Declaration of Human Rights, and the African Charter on Human Right.

This court’s ruling constituted a very important precedent and the fact that the international conventions were used even if the State was not a signatory, was justified by pointing out the mere fact that Botswana is a member of the community of Nations through the UN, which entitled them to take judicial notice of these international instruments. One of the judges commented on this issue by saying that the national application of international human rights has become the legal basis for the enforcement of the minimum requirements of the constitution. In this case the international human rights are, in fact, a part of the constitutional expression of liberties guaranteed at the national level.

This decision urged Botswana to ratify both CEDAW and the Convention on the Rights of the Child, and amend the Citizenship Act. Interestingly, this decision has had important repercussions on the neighboring countries of Botswana. The Supreme Court of Zimbabwe has referred to this decision in the case Rattigan and Ors. v. Chief Immigration Officer (1994), stating that “the practices of the Immigration Office in Zimbabwe were preventing an alien husband from living with his wife in Zimbabwe were contradicting the Constitution”.

Attorney General of Botswana v. Unity Dow (Botswana Supreme Court, 1992)

The facts of this case were this: the Citizenship Act of 1984 contained legal provisions preventing a female citizen of Botswana from passing her citizenship onto her husband, if he was a non-citizen, or her children from this marriage. The Citizenship Act did not place the same restriction on males who marry a non-citizen woman. It is worth noting that at the time, Botswana was not a party to any international human rights Conventions. The woman who brought the complaint before the court had married a non-Botswanian citizen and had two children. Due to the Citizenship Act, neither the father nor the children acquired the woman’s nationality.

The plaintiff, in this case, had demanded that both the male spouse and the children were entitled to citizenship from Botswana, based on several legal grounds:

A. The Citizenship Act was challenged in its legitimacy based on the fact that the law discriminated against women and that it violated the Constitution of Botswana which afforded all individuals basic human rights regardless of their sex.

B. It was argued that the Citizenship Act limited her freedom of movement, a right recognised by the Botswana’s Constitution, due to the fact that her children were not citizens and that a man in the same position would not have faced similar challenges.

C. Finally, it was also argued that the discriminatory provision embodied in the Citizenship Act amounted to inhuman and degrading treatment and that she was denied equal protection under the law.

The counter argument presented by the State invoked customary law in force in Botswana, asserting that was based on the patrilineal societal structures, and if gender-based


solution to the case. The Supreme Court also added that the Primary Court erred because it did not provide an effective remedy in accordance with the principle of equality in the legal protection of the law guaranteed by Article 13(1) of the Constitution. Moreover, the decision of the Primary Court was contrary to Article 2(a) of CEDAW, which obliges State Parties to incorporate the principle of equality before the law in their national constitutions or other relevant legislation and ensure the de facto application of this principle. It was also pointed out that the Tanzanian Constitution expressly recognised the UDHR which is a source for all other international instruments dealing with human rights.

The court, therefore, concluded to set aside the lower courts decision and to replace it with another order that the appellant should receive one of the two houses, owned by the husband, rather than only compelling the husband to only pay the dowry amount66.

Dhungana v. Government of Nepal (High Court of Nepal, 1993)

A Nepali law provided that while a son was entitled to receive a share of the assets of his father at birth, this was not the case for a daughter. She would receive her share only if when reaching the age of 35 she was still unmarried; this law was challenged. The Supreme Court in its decision invoked CEDAW, which in Nepal has the status of national law, to recognise that the challenged law violated Article 15 of the Convention and the guarantee of equality set forth in the Nepali Constitution. The Court did not declare the law unconstitutional but ordered the government to draft a new non-discriminatory law to eliminate inequities between men and women in regards to inheritance rights67.

Ephrahim v. Pastory (High Court of Tanzania, 1990)

The appellant challenged a Tanzanian law that forbade her to sell the clan land that she inherited from her father. The restriction meant that women could benefit only from having the land in usufruct, but not actually own it. The Supreme Court of Tanzania concluded in its ruling that this law was in contradiction with both the national Constitution which guarantees equal rights for women, and with CEDAW. Accordingly, the Court ruled to outlaw this custom stating that it was discriminatory as it violated women’s property rights. The court declared that the principles enunciated in CEDAW are a standard below which any civilized nation will be ashamed to fall65.

Njobeka v. Mkorogoro (High Court of Tanzania, 2001)

This case refers to a husband who divorced his wife in accordance with the provisions of the Islamic law. The National Muslim Council of Tanzania approved this divorce and recommended the husband to pay the deferred dowry agreed upon between the spouses in the marriage contract. The husband did not comply with the recommendation of the Council, so the wife filed a lawsuit before the Primary Court; which again issued a decision allowing for divorce, and ordering the husband to pay the amount agreed upon in the contract of marriage. The wife challenged this decision before the Supreme Court in Dar El Salaam on the basis that the Primary Court ruling was inadequate as it did not take into account both parties’ contributions to the marital property.

The Supreme Court held that the Primary Court erred in adopting the recommendation of the Muslim National Council of Tanzania because this is a reconciliation Council, and its jurisdiction expires the moment it fails to reach an amicable

65 See at:www.womenstreaty.org //cedaw% 20Book% 20ch% 204.pdf

66 See at: www.globalisaticerter.net/tools/manual/int-law/legal-rolehtml

67 See at: www.womenstreaty.org//cedaw%20Book%20ch%204.pdf


Municipal Corporation of Delhi v. Female Workers (High Court of India)

The case is significant when examining the application of the provisions of CEDAW in national jurisdictions. The importance of this case lies in that the Supreme Court of India has implemented the provisions of CEDAW in a ruling concerning a mixed ownership corporation (private and public). The female workers of the Municipal Corporation of Delhi were denied leave under the Maternity Benefit Act (1961) because they were not “regular” employees. The court ruled that nothing contained in the Act pertained only to “regular” employees. Moreover the court established that the provisions of Article 11 of CEDAW, which deals with marital status and maternity in the context of employment, “should be read into the contract of service” between the Corporation and the women employees and therefore these employees are entitled to all the benefits under the Maternity Benefit Act.

Vishaka v. State of Rajasthan (3 BHRC, 261)

A network of women’s rights NGO and human rights activists lodged a writ in the Indian Supreme Court in support of a government employee that was gang raped and then denied an official investigation after her complaint. At the time of the petition there was no explicit law in India that prohibits sexual harassment in the work place. The petition requested the Supreme Court to direct the Indian Government to form a Committee to draft a law for the prevention of sexual harassment and abuse of women according to Article 32 of the Indian Constitution and Articles 11 and 24 of CEDAW.

The Court turned to CEDAW in its ruling, giving further meaning and elaborating the constitutional guarantees against sexual discrimination. In addition the Court highlighted the fact that by ratifying CEDAW, India endorsed and upheld international standards on women’s rights. As a result, there is now a set of norms binding public and private employees. The norms contain definitions and passages taken directly from CEDAW Committee General Recommendation No.19.

The Court highlighted in its ruling that any international convention that is not inconsistent with the fundamental rights guaranteed in the Constitution, must be used for the interpretation and application of constitutional guarantees and to promote its purposes, irrespective of the existence ofan enacting law. The court therefore concluded that Articles 11 and 24 of CEDAW, and the General Recommendation 19 paragraphs 22, 23 and 24 on sexual harassment in the workplace, could be used to understand the nature and content of gender equality guaranteed under the Constitution68.

68 See at: www.globalisaticecenter.net/tools/manual/int-law/legal-rolehtml

Annexes

94 Annexes 95Annexes

Emphasizing that the eradication of apartheid, all forms of racism, racial discrimination, colonialism, neo-colonialism, aggression, foreign occupation and domination and interference in the internal affairs of States is essential to the full enjoyment of the rights of men and women, Affirming that the strengthening of international peace and security, the relaxation of international tension, mutual co-operation among all States irrespective of their social and economic systems, general and complete disarmament, in particular nuclear disarmament under strict and effective international control, the affirmation of the principles of justice, equality and mutual benefit in relations among countries and the realization of the right of peoples under alien and colonial domination and foreign occupation to self-determination and independence, as well as respect for national sovereignty and territorial integrity, will promote social progress and development and as a consequence will contribute to the attainment of full equality between men and women, Convinced that the full and complete development of a country, the welfare of the world and the cause of peace require the maximum participation of women on equal terms with men in all fields, Bearing in mind the great contribution of women to the welfare of the family and to the development of society, so far not fully recognized, the social significance of maternity and the role of both parents in the family and in the upbringing of children, and aware that the role of women in procreation should not be a basis for discrimination but that the upbringing of children requires a sharing of responsibility between men and women and society as a whole, Aware that a change in the traditional role of men as well as the role of women in society and in the family is needed to achieve full equality between men and women, Determined to implement the principles set forth in the Declaration on the Elimination of Discrimination against Women and, for that purpose, to adopt the measures required for the elimination of such discrimination in all its forms and manifestations, Have agreed on the following:

PART I Article I For the purposes of the present Convention, the term “discrimination against women” shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or

Convention on the Elimination of All Forms of Discrimination against Women New York, 18 December 1979

The States Parties to the present Convention,

Noting that the Charter of the United Nations reaffirms faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women, Noting that the Universal Declaration of Human Rights affirms the principle of the inadmissibility of discrimination and proclaims that all human beings are born free and equal in dignity and rights and that everyone is entitled to all the rights and freedoms set forth therein, without distinction of any kind, including distinction based on sex, Noting that the States Parties to the International Covenants on Human Rights have the obligation to ensure the equal rights of men and women to enjoy all economic, social, cultural, civil and political rights, Considering the international conventions concluded under the auspices of the United Nations and the specialized agencies promoting equality of rights of men and women, Noting also the resolutions, declarations and recommendations adopted by the United Nations and the specialized agencies promoting equality of rights of men and women, Concerned, however, that despite these various instruments extensive discrimination against women continues to exist, Recalling that discrimination against women violates the principles of equality of rights and respect for human dignity, is an obstacle to the participation of women, on equal terms with men, in the political, social, economic and cultural life of their countries, hampers the growth of the prosperity of society and the family and makes more difficult the full development of the potentialities of women in the service of their countries and of humanity, Concerned that in situations of poverty women have the least access to food, health, education, training and opportunities for employment and other needs, Convinced that the establishment of the new international economic order based on equity and justice will contribute significantly towards the promotion of equality between men and women,


Article 4 1. Adoption by States Parties of temporary special measures aimed at accelerating de facto equality between men and women shall not be considered discrimination as defined in the present Convention, but shall in no way entail as a consequence the maintenance of unequal or separate standards; these measures shall be discontinued when the objectives of equality of opportunity and treatment have been achieved. 2. Adoption by States Parties of special measures, including those measures contained in the present Convention, aimed at protecting maternity shall not be considered discriminatory.

Article 5 States Parties shall take all appropriate measures: (a) To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women; (b) To ensure that family education includes a proper understanding of maternity as a social function and the recognition of the common responsibility of men and women in the upbringing and development of their children, it being understood that the interest of the children is the primordial consideration in all cases.

Article 6 States Parties shall take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women.

PART II Article 7 States Parties shall take all appropriate measures to eliminate discrimination against women in the political and public life of the country and, in particular, shall ensure to women, on equal terms with men, the right: (a) To vote in all elections and public referenda and to be eligible for election to all publicly elected bodies; (b) To participate in the formulation of government policy and the implementation thereof and to hold public office and perform all public functions at all levels of government;

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, social, cultural, civil or any other field.

Article 2 States Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to this end, undertake: (a) To embody the principle of the equality of men and women in their national constitutions or other appropriate legislation if not yet incorporated therein and to ensure, through law and other appropriate means, the practical realization of this principle; (b) To adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women; (c) To establish legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination; (d) To refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation; (e) To take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise; (f) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women; (g) To repeal all national penal provisions which constitute discrimination against women.

Article 3 States Parties shall take in all fields, in particular in the political, social, economic and cultural fields, all appropriate measures, including legislation, to en sure the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men.


(e) The same opportunities for access to programmes of continuing education, including adult and functional literacy programmes, particulary those aimed at reducing, at the earliest possible time, any gap in education existing between men and women; (f) The reduction of female student drop-out rates and the organization of programmes for girls and women who have left school prematurely; (g) The same Opportunities to participate actively in sports and physical education; (h) Access to specific educational information to help to ensure the health and well-being of families, including information and advice on family planning.

Article 11 1. States Parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights, in particular: (a) The right to work as an inalienable right of all human beings; (b) The right to the same employment opportunities, including the application of the same criteria for selection in matters of employment; (c) The right to free choice of profession and employment, the right to promotion, job security and all benefits and conditions of service and the right to receive vocational training and retraining, including apprenticeships, advanced vocational training and recurrent training; (d) The right to equal remuneration, including benefits, and to equal treatment in respect of work of equal value, as well as equality of treatment in the evaluation of the quality of work; (e) The right to social security, particularly in cases of retirement, unemployment, sickness, invalidity and old age and other incapacity to work, as well as the right to paid leave; (f) The right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction. 2. In order to prevent discrimination against women on the grounds of marriage or maternity and to ensure their effective right to work, States Parties shall take appropriate measures: (a) To prohibit, subject to the imposition of sanctions, dismissal on the grounds of pregnancy or of maternity leave and discrimination in dismissals on the basis of marital status; (b) To introduce maternity leave with pay or with comparable social

(c) To participate in non-governmental organizations and associations concerned with the public and political life of the country.

Article 8 States Parties shall take all appropriate measures to ensure to women, on equal terms with men and without any discrimination, the opportunity to represent their Governments at the international level and to participate in the work of international organizations.

Article 9 1. States Parties shall grant women equal rights with men to acquire, change or retain their nationality. They shall ensure in particular that neither marriage to an alien nor change of nationality by the husband during marriage shall automatically change the nationality of the wife, render her stateless or force upon her the nationality of the husband. 2. States Parties shall grant women equal rights with men with respect to the nationality of their children.

PART III Article 10 States Parties shall take all appropriate measures to eliminate discrimination against women in order to ensure to them equal rights with men in the field of education and in particular to ensure, on a basis of equality of men and women: (a) The same conditions for career and vocational guidance, for access to studies and for the achievement of diplomas in educational establishments of all categories in rural as well as in urban areas; this equality shall be ensured in pre-school, general, technical, professional and higher technical education, as well as in all types of vocational training; (b) Access to the same curricula, the same examinations, teaching staff with qualifications of the same standard and school premises and equipment of the same quality; (c) The elimination of any stereotyped concept of the roles of men and women at all levels and in all forms of education by encouraging coeducation and other types of education which will help to achieve this aim and, in particular, by the revision of textbooks and school programmes and the adaptation of teaching methods; (d ) The same opportunities to benefit from scholarships and other study grants;


2. States Parties shall take all appropriate measures to eliminate discrimination against women in rural areas in order to ensure, on a basis of equality of men and women, that they participate in and benefit from rural development and, in particular, shall ensure to such women the right: (a) To participate in the elaboration and implementation of development planning at all levels; (b) To have access to adequate health care facilities, including information, counselling and services in family planning; (c) To benefit directly from social security programmes; (d) To obtain all types of training and education, formal and non-formal, including that relating to functional literacy, as well as, inter alia, the benefit of all community and extension services, in order to increase their technical proficiency; (e) To organize self-help groups and co-operatives in order to obtain equal access to economic opportunities through employment or self employment; (f) To participate in all community activities; (g) To have access to agricultural credit and loans, marketing facilities, appropriate technology and equal treatment in land and agrarian reform as well as in land resettlement schemes; (h) To enjoy adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply, transport and communications.

PART IV Article 15 1. States Parties shall accord to women equality with men before the law. 2. States Parties shall accord to women, in civil matters, a legal capacity identical to that of men and the same opportunities to exercise that capacity. In particular, they shall give women equal rights to conclude contracts and to administer property and shall treat them equally in all stages of procedure in courts and tribunals. 3. States Parties agree that all contracts and all other private instruments of any kind with a legal effect which is directed at restricting the legal capacity of women shall be deemed null and void. 4. States Parties shall accord to men and women the same rights with regard to the law relating to the movement of persons and the freedom to choose their residence and domicile.

benefits without loss of former employment, seniority or social allowances; (c) To encourage the provision of the necessary supporting social services to enable parents to combine family obligations with work responsibilities and participation in public life, in particular through promoting the establishment and development of a network of child-care facilities; (d) To provide special protection to women during pregnancy in types of work proved to be harmful to them. 3. Protective legislation relating to matters covered in this article shall be reviewed periodically in the light of scientific and technological knowledge and shall be revised, repealed or extended as necessary.

Article 12 1. States Parties shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning. 2. Notwithstanding the provisions of paragraph I of this article, States Parties shall ensure to women appropriate services in connection with pregnancy, confinement and the post-natal period, granting free services where necessary, as well as adequate nutrition during pregnancy and lactation.

Article 13 States Parties shall take all appropriate measures to eliminate discrimination against women in other areas of economic and social life in order to ensure, on a basis of equality of men and women, the same rights, in particular: (a) The right to family benefits; (b) The right to bank loans, mortgages and other forms of financial credit; (c) The right to participate in recreational activities, sports and all aspects of cultural life.

Article 14 1. States Parties shall take into account the particular problems faced by rural women and the significant roles which rural women play in the economic survival of their families, including their work in the non-monetized sectors of the economy, and shall take all appropriate measures to ensure the application of the provisions of the present Convention to women in rural areas.


The experts shall be elected by States Parties from among their nationals and shall serve in their personal capacity, consideration being given to equitable geographical distribution and to the representation of the different forms of civilization as well as the principal legal systems. 2. The members of the Committee shall be elected by secret ballot from a list of persons nominated by States Parties. Each State Party may nominate one person from among its own nationals. 3. The initial election shall be held six months after the date of the entry into force of the present Convention. At least three months before the date of each election the Secretary-General of the United Nations shall address a letter to the States Parties inviting them to submit their nominations within two months. The Secretary-General shall prepare a list in alphabetical order of all persons thus nominated, indicating the States Parties which have nominated them, and shall submit it to the States Parties. 4. Elections of the members of the Committee shall be held at a meeting of States Parties convened by the Secretary-General at United Nations Headquarters. At that meeting, for which two thirds of the States Parties shall constitute a quorum, the persons elected to the Committee shall be those nominees who obtain the largest number of votes and an absolute majority of the votes of the representatives of States Parties present and voting. 5. The members of the Committee shall be elected for a term of four years. However, the terms of nine of the members elected at the first election shall expire at the end of two years; immediately after the first election the names of these nine members shall be chosen by lot by the Chairman of the Committee. 6. The election of the five additional members of the Committee shall be held in accordance with the provisions of paragraphs 2, 3 and 4 of this article, following the thirty-fifth ratification or accession. The terms of two of the additional members elected on this occasion shall expire at the end of two years, the names of these two members having been chosen by lot by the Chairman of the Committee. 7. For the filling of casual vacancies, the State Party whose expert has ceased to function as a member of the Committee shall appoint another expert from among its nationals, subject to the approval of the Committee. 8. The members of the Committee shall, with the approval of the General Assembly, receive emoluments from United Nations resources on such terms and conditions as the Assembly may decide, having regard to the importance of the Committee’s responsibilities.

Article 16 1. States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women: (a) The same right to enter into marriage; (b) The same right freely to choose a spouse and to enter into marriage only with their free and full consent; (c) The same rights and responsibilities during marriage and at its dissolution; (d) The same rights and responsibilities as parents, irrespective of their marital status, in matters relating to their children; in all cases the interests of the children shall be paramount; (e) The same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights; (f) The same rights and responsibilities with regard to guardianship, wardship, trusteeship and adoption of children, or similar institutions where these concepts exist in national legislation; in all cases the interests of the children shall be paramount; (g) The same personal rights as husband and wife, including the right to choose a family name, a profession and an occupation; (h) The same rights for both spouses in respect of the ownership, acquisition, management, administration, enjoyment and disposition of property, whether free of charge or for a valuable consideration. 2. The betrothal and the marriage of a child shall have no legal effect, and all necessary action, including legislation, shall be taken to specify a minimum age for marriage and to make the registration of marriages in an official registry compulsory.

PART V Article 17 1. For the purpose of considering the progress made in the implementation of the present Convention, there shall be established a Committee on the Elimination of Discrimination against Women (hereinafter referred to as the Committee) consisting, at the time of entry into force of the Convention, of eighteen and, after ratification of or accession to the Convention by the thirty-fifth State Party, of twenty-three experts of high moral standing and competence in the field covered by the Convention.


Article 22 The specialized agencies shall be entitled to be represented at the consideration of the implementation of such provisions of the present Convention as fall within the scope of their activities. The Committee may invite the specialized agencies to submit reports on the implementation of the Convention in areas falling within the scope of their activities.

PART VI Article 23 Nothing in the present Convention shall affect any provisions that are more conducive to the achievement of equality between men and women which may be contained: (a) In the legislation of a State Party; or (b) In any other international convention, treaty or agreement in force for that State.

Article 24 States Parties undertake to adopt all necessary measures at the national level aimed at achieving the full realization of the rights recognized in the present Convention.

Article 25 1. The present Convention shall be open for signature by all States. 2. The Secretary-General of the United Nations is designated as the depositary of the present Convention. 3. The present Convention is subject to ratification. Instruments of ratification shall be deposited with the Secretary-General of the United Nations. 4. The present Convention shall be open to accession by all States. Accession shall be effected by the deposit of an instrument of accession with the Secretary-General of the United Nations.

Article 26 1. A request for the revision of the present Convention may be made at any time by any State Party by means of a notification in writing addressed to the Secretary-General of the United Nations. 2. The General Assembly of the United Nations shall decide upon the steps, if any, to be taken in respect of such a request.

9. The Secretary-General of the United Nations shall provide the necessary staff and facilities for the effective performance of the functions of the Committee under the present Convention.

Article 18 1. States Parties undertake to submit to the Secretary-General of the United Nations, for consideration by the Committee, 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 in this respect: (a) Within one year after the entry into force for the State concerned; (b) Thereafter at least every four years and further whenever the Committee so requests. 2. Reports may indicate factors and difficulties affecting the degree of fulfilment of obligations under the present Convention.

Article 19 1. The Committee shall adopt its own rules of procedure. 2. The Committee shall elect its officers for a term of two years.

Article 20 1. The Committee shall normally meet for a period of not more than two weeks annually in order to consider the reports submitted in accordance with article 18 of the present Convention. 2. The meetings of the Committee shall normally be held at United Nations Headquarters or at any other convenient place as determined by the Committee. (amendment, status of ratification)

Article 21 1. The Committee shall, through the Economic and Social Council, report annually to the General Assembly of the United Nations on its activities and may make suggestions and general recommendations based on the examination of reports and information received from the States Parties. Such suggestions and general recommendations shall be included in the report of the Committee together with comments, if any, from States Parties. 2. The Secretary-General of the United Nations shall transmit the reports of the Committee to the Commission on the Status of Women for its information.


Article 30 The present Convention, the Arabic, Chinese, English, French, Russian and Spanish texts of which are equally authentic, shall be deposited with the Secretary-General of the United Nations. IN WITNESS WHEREOF the undersigned, duly authorized, have signed the present Convention.

Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women

The States Parties to the present Protocol,

Noting that the Charter of the United Nations reaffirms faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women, Also noting that the Universal Declaration of Human Rights5 proclaims that all human beings are born free and equal in dignity and rights and that everyone is entitled to all the rights and freedoms set forth therein, without distinction of any kind, including distinction based on sex, Recalling that the International Covenants on Human Rights6 and other international human rights instruments prohibit discrimination on the basis of sex, Also recalling the Convention on the Elimination of All Forms of Discrimination against Women4 (“the Convention”), in which the States Parties thereto condemn discrimination against women in all its forms and agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women, Reaffirming their determination to ensure the full and equal enjoyment by women of all human rights and fundamental freedoms and to take effective action to prevent violations of these rights and freedoms, Have agreed as follows:

Article 1 A State Party to the present Protocol (“State Party”) recognizes the

Article 27 1. The present Convention shall enter into force on the thirtieth day after the date of deposit with the Secretary-General of the United Nations of the twentieth instrument of ratification or accession. 2. For each State ratifying the present Convention or acceding to it after the deposit of the twentieth instrument of ratification or accession, the Convention shall enter into force on the thirtieth day after the date of the deposit of its own instrument of ratification or accession.

Article 28 1. The Secretary-General of the United Nations shall receive and circulate to all States the text of reservations made by States at the time of ratification or accession. 2. A reservation incompatible with the object and purpose of the present Convention shall not be permitted. 3. Reservations may be withdrawn at any time by notification to this effect addressed to the Secretary-General of the United Nations, who shall then inform all States thereof. Such notification shall take effect on the date on which it is received.

Article 29 1. Any dispute between two or more States Parties concerning the interpretation or application of the present Convention which is not settled by negotiation shall, at the request of one of them, be submitted to arbitration. If within six months from the date of the request for arbitration the parties are unable to agree on the organization of the arbitration, any one of those parties may refer the dispute to the International Court of Justice by request in conformity with the Statute of the Court. 2. Each State Party may at the time of signature or ratification of the present Convention or accession thereto declare that it does not consider itself bound by paragraph I of this article. The other States Parties shall not be bound by that paragraph with respect to any State Party which has made such a reservation. 3. Any State Party which has made a reservation in accordance with paragraph 2 of this article may at any time withdraw that reservation by notification to the Secretary-General of the United Nations.


2. Where the Committee exercises its discretion under paragraph 1 of the present article, this does not imply a determination on admissibility or on the merits of the communication.

Article 6 1. Unless the Committee considers a communication inadmissible without reference to the State Party concerned, and provided that the individual or individuals consent to the disclosure of their identity to that State Party, the Committee shall bring any communication submitted to it under the present Protocol confidentially to the attention of the State Party concerned. 2. Within six months, the receiving State Party shall submit to the Committee written explanations or statements clarifying the matter and the remedy, if any, that may have been provided by that State Party.

Article 7 1. The Committee shall consider communications received under the present Protocol in the light of all information made available to it by or on behalf of individuals or groups of individuals and by the State Party concerned, provided that this information is transmitted to the parties concerned. 2. The Committee shall hold closed meetings when examining communications under the present Protocol. 3. After examining a communication, the Committee shall transmit its views on the communication, together with its recommendations, if any, to the parties concerned. 4. The State Party shall give due consideration to the views of the Committee, together with its recommendations, if any, and shall submit to the Committee, within six months, a written response, including information on any action taken in the light of the views and recommendations of the Committee.

Article 8 2. Taking into account any observations that may have been submitted by the State Party concerned as well as any other reliable information available to it, the Committee may designate one or more of its members to conduct an inquiry and to report urgently to the Committee. Where warranted and with the consent of the State Party, the inquiry may include a visit to its territory.

competence of the Committee on the Elimination of Discrimination against Women (“the Committee”) to receive and consider communications submitted in accordance with article 2.

Article 2 Communications may be submitted by or on behalf of individuals or groups of individuals, under the jurisdiction of a State Party, claiming to be victims of a violation of any of the rights set forth in the Convention by that State Party. Where a communication is submitted on behalf of individuals or groups of individuals, this shall be with their consent unless the author can justify acting on their behalf without such consent.

Article 3 Communications shall be in writing and shall not be anonymous. No communication shall be received by the Committee if it concerns a State Party to the Convention that is not a party to the present Protocol.

Article 4 1. The Committee shall not consider a communication unless it has ascertained that all available domestic remedies have been exhausted unless the application of such remedies is unreasonably prolonged or unlikely to bring effective relief. 2. The Committee shall declare a communication inadmissible where: (a) The same matter has already been examined by the Committee or has been or is being examined under another procedure of international investigation or settlement; (b) It is incompatible with the provisions of the Convention; (c) It is manifestly ill-founded or not sufficiently substantiated; (d) It is an abuse of the right to submit a communication; (e) The facts that are the subject of the communication occurred prior to the entry into force of the present Protocol for the State Party concerned unless those facts continued after that date.

Article 5 1. At any time after the receipt of a communication and before a determination on the merits has been reached, the Committee may transmit to the State Party concerned for its urgent consideration a request that the State Party take such interim measures as may be necessary to avoid possible irreparable damage to the victim or victims of the alleged violation.


Article 12 The Committee shall include in its annual report under article 21 of the Convention a summary of its activities under the present Protocol.

Article 13 Each State Party undertakes to make widely known and to give publicity to the Convention and the present Protocol and to facilitate access to information about the views and recommendations of the Committee, in particular, on matters involving that State Party.

Article 14 The Committee shall develop its own rules of procedure to be followed when exercising the functions conferred on it by the present Protocol.

Article 15 1. The present Protocol shall be open for signature by any State that has signed, ratified or acceded to the Convention. 2. The present Protocol shall be subject to ratification by any State that has ratified or acceded to the Convention. Instruments of ratification shall be deposited with the Secretary-General of the United Nations. 3. The present Protocol shall be open to accession by any State that has ratified or acceded to the Convention. 4. Accession shall be effected by the deposit of an instrument of accession with the Secretary-General of the United Nations.

Article 16 1. The present Protocol shall enter into force three months after the date of the deposit with the Secretary-General of the United Nations of the tenth instrument of ratification or accession. 2. For each State ratifying the present Protocol or acceding to it after its entry into force, the present Protocol shall enter into force three months after the date of the deposit of its own instrument of ratification or accession.

Article 17 No reservations to the present Protocol shall be permitted.

3. After examining the findings of such an inquiry, the Committee shall transmit these findings to the State Party concerned together with any comments and recommendations. 4. The State Party concerned shall, within six months of receiving the findings, comments and recommendations transmitted by the Committee, submit its observations to the Committee. 5. Such an inquiry shall be conducted confidentially and the cooperation of the State Party shall be sought at all stages of the proceedings.

Article 9 1. The Committee may invite the State Party concerned to include in its report under article 18 of the Convention details of any measures taken in response to an inquiry conducted under article 8 of the present Protocol. 2. The Committee may, if necessary, after the end of the period of six months referred to in article 8.4, invite the State Party concerned to inform it of the measures taken in response to such an inquiry. 5. The Committee may invite the State Party to submit further information about any measures the State Party has taken in response to its views or recommendations, if any, including as deemed appropriate by the Committee, in the State Party’s subsequent reports under article 18 of the Convention. 1. If the Committee receives reliable information indicating grave or systematic violations by a State Party of rights set forth in the Convention, the Committee shall invite that State Party to cooperate in the examination of the information and to this end to submit observations with regard to the information concerned.

Article 10 1. Each State Party may, at the time of signature or ratification of the present Protocol or accession thereto, declare that it does not recognize the competence of the Committee provided for in articles 8 and 9. 2. Any State Party having made a declaration in accordance with paragraph 1 of the present article may, at any time, withdraw this declaration by notification to the Secretary-General.

Article 11 A State Party shall take all appropriate steps to ensure that individuals under its jurisdiction are not subjected to ill treatment or intimidation as a consequence of communicating with the Committee pursuant to the present Protocol.


Article 21 1. The present Protocol, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited in the archives of the United Nations.

2. The Secretary-General of the United Nations shall transmit certified copies of the present Protocol to all States referred to in article 25 of the Convention

Useful websites

1- http://www.iwraw-ap.org./abouts.htm2-http://www.ispm.org.ar3-http://www.un.org/womenwatch4-http://www.Whrenet.org5-http://www.Wao.org.my6-http://www.ohchr.org/7-http://www.umn.edu/humanrts/8-www.hrni.org9-http://www.law-lib.utoronto.ca/Diana10-http://www.hri.ca/index.aspx11-http://www.hrea.org/12-http://www.unifem.org/13-http://www.crlp.org/14-http://mnaduocates.org/15-http://www.awid.org16-http://www.iwarp.org17-http://www.wluml.org/18-http://amanjordan.org/cedaw/index.htm

Article 18 1. Any State Party may propose an amendment to the present Protocol and file it with the Secretary-General of the United Nations. The Secretary-General shall thereupon communicate any proposed amendments to the States Parties with a request that they notify her or him whether they favour a conference of States Parties for the purpose of considering and voting on the proposal. In the event that at least one third of the States Parties favour such a conference, the Secretary-General shall convene the conference under the auspices of the United Nations. Any amendment adopted by a majority of the States Parties present and voting at the conference shall be submitted to the General Assembly of the United Nations for approval. 3. When amendments come into force, they shall be binding on those States Parties that have accepted them, other States Parties still being bound by the provisions of the present Protocol and any earlier amendments that they have accepted.

Article 19 1. Any State Party may denounce the present Protocol at any time by written notification addressed to the Secretary-General of the United Nations. Denunciation shall take effect six months after the date of receipt of the notification by the Secretary-General. 2. Denunciation shall be without prejudice to the continued application of the provisions of the present Protocol to any communication submitted under article 2 or any inquiry initiated under article 8 before the effective date of denunciation.

Article 20 The Secretary-General of the United Nations shall inform all States of: (a) Signatures, ratifications and accessions under the present Protocol; (b) The date of entry into force of the present Protocol and of any amendment under article 18; (c) Any denunciation under article 19. 2. Amendments shall come into force when they have been approved by the General Assembly of the United Nations and accepted by a two-thirds majority of the States Parties to the present Protocol in accordance with their respective constitutional processes.

114 Contact Information

Contact Information

Mizan Law Group for Human Rights (Mizan)

Tel: +962 6 5690691

Fax: +962 6 5690681

E-mail: [email protected]

www.mizangroup.jo

The Jordanian National Commission for Women (JNCW)

Tel: +962 6 5560741

Fax: +962 6 5526768


www.women.jo

Italian Consortium of Solidarity (ICS)

Tel/Fax: +962 6 5601046


www.icsitalia.org

cedaw in the jordanian legal system- a handbook for practitioners

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