what is cedaw?in the chapter “what is cedaw?” hanna beate schöpp-schilling describes the...

c da

c dWWhat is CEDAW?The UN Convention on the Eliminationof All Forms of Discrimination against WomenThe human rights of women and what they mean

Ordering Service of the Federal Chancellery1014 Wien | Ballhausplatz 2Tel. 01-53115 2613 | Fax 01-53115 [email protected]

CEDAW_Info-Cover engl.:CEDAW_Info-Cover 01.04.2008 10:29 Uhr Seite 1

c dWWhat is CEDAW?The UN Convention on the Elimination ofAll Forms of Discrimination against WomenThe human rights of womenand what they mean

CEDAW_Info engl.:CEDAW_Info 08.04.2008 15:41 Uhr Seite 1

Imprint

Owner and PublisherFederal Chancellery-Federal Minister for Women,Media and Civil Service

Edited by and responsible for contentsSylvia Kölbl

Graphic layoutneuwirth+steinborn, www.nest.at

Printed byDruckerei Friedrich VDV

Vienna 2007

Impressum

Eigentümerin, Verlegerin, HerausgeberinBundeskanzleramt – Bundesministerin für Frauen,Medien und öffentlichen Dienst

Redaktion, für den Inhalt verantwortlichSylvia Kölbl

Grafische Gestaltungneuwirth+steinborn, www.nest.at

DruckDruckerei Friedrich VDV

Wien 2007 c d


Foreword 5

What is CEDAW? 7

What are the origins of CEDAW? 12

What is the meaning of CEDAW? 17

How can women use CEDAW? 22

Links and literature 27

Abbreviations and glossary 28

The authors 28

Contents

dW


25 years ago Austria was amongst the firstcountries to ratify the UN Convention on theElimination of All Forms of Discriminationagainst Women (CEDAW). Today, this Con-vention still represents the most importantinternational legal instrument for enforcingwomen’s rights, as the States Parties havecommitted themselves to implementing itsprovisions. Since the ratification of the Con-vention in 1982, Austria has adopted aseries of new laws for the advancement ofthe equal status of women and the elimina-tion of discrimination against women andhas taken a number of steps in order tomeet its obligations.

For me as Minister for Women’s Affairs,this Convention acts as a powerful stimulusfor our efforts to identify remaining areas ofdiscrimination and newly emerging pro-blems as well as social inequalities betweenwomen and men and to strive for improve-

ments and seek solutions together with thepeople in government responsible for theseissues.

I should like to take the 25th anniversa-ry of the ratification of CEDAW as an oppor-tunity to present this important legal instru-ment to the Austrian public once again: thehistorical background of the Convention, itsobjectives and its meaning for all women inAustria. CEDAW not only aims at advancingwomen’s rights, but also at heightening theunderstanding of political measures in orderto achieve this goal.

Democracy means creating equal rightsand equal opportunity for all. The imple-mentation of the Convention on the Elimi-nation of All Forms of Discrimination againstWomen makes a significant contribution toensuring or attaining de jure and de factoequality of women in this country.

5 Foreword

Dear readers,

Doris BuresFederal Minister for Women, Media and Civil Service


On the occasion of the 25th anniversary of the ratification of the UN Conventionon the Elimination of all Forms of Discrimination against Women (CEDAW) byAustria, this brochure is intended for making CEDAW better known among thegeneral public. It contains four chapters which were written by Austrian andinternational women experts.

In the chapter “What is CEDAW?” Hanna Beate Schöpp-Schilling describesthe Convention and explains how the CEDAW Committee works. In the chapter“The history of CEDAW” Dorothea Gaudart explains the history of CEDAW in the context of human rights developments in the United Nations. In the chapter“What is the meaning of CEDAW?” Karin Tertinegg elaborates on the rights of women in practice as defined in CEDAW, illustrates the obligations Austria assumed under this Convention and describes the significance of CEDAW forwomen in Austria and non-governmental organizations (NGOs). Under the heading “How can women use CEDAW?” Karin Tertinegg presents the OptionalProtocol and explains how women can make individual complaints in order toenforce the rights guaranteed under CEDAW. The section “Links and literature” is intended as a guide for women in gaining access to further information. At the end of this brochure you will find a section entitled “Abbreviations and glossary” and a presentation of the authors.

6


Human Rights are inalienable. They areinherent in the dignity of every individual.Alongside the preservation of internationalsecurity and peace as well as the advance-ment of the economic and social develop-ment of the States Parties, the protection ofhuman rights constitutes one of the threemain tasks of the United Nations (UN). TheCharter of the United Nations, which wasadopted back in 1945, reaffirms in its Pre-amble the “dignity and value of human per-sonality” as well as the “equal rights of menand women” and imposes a ban on dis -crimination on the grounds of sex (Article 1,para. 3). These provisions are repeated inthe General Declaration of Human Rights(GDHR of 1948) and in the UN Covenants onCivil and Political Rights as well as on Eco-nomic, Social and Cultural Rights of 1966, tothe effect that men and women must beable to enjoy all rights defined in these Cov -enants on the basis of equality and withoutany discrimination.

If a state desires to apply an interna -tional convention on human rights, i.e. if itsigns and subsequently ratifies or accedesto it, it becomes a State Party and thus com-mits itself vis-à-vis the other States Partiesand its citizens to respect, protect and grantthe human rights set forth in the relevantconvention. For the human rights treaties ofthe United Nations, committees are set upwhich consist of independent experts moni-toring the compliance of States Parties withthe provisions of these conventions by ap -plying various procedures. Why was a con-vention needed that deals exclusively withwomen? The answer is that until the late1960s all activities of the United Nations,especially the work done by the Committeeon the Status of Women and the monitoring

practices of the expert committees till thenwere inadequate to prevent and reduceworldwide discrimination against womenon the grounds of their sex and marital sta-tus. The details of this development are des-cribed later by Dorothea Gaudart.

As compared to discrimination on thegrounds of race, this type of violation ofhuman rights in practice was not sufficient-ly identified and especially punished. Unfor-tunately this still holds true today, despitethe existing additional legal instruments.Furthermore, discrimination against womencannot be equated with the discriminationagainst other persons or on other grounds.In no other relationship in which discrimi-nation occurs do the perpetrator and thevictim interact in the intimate sphere of afamily. Nor may women be labelled as aparticularly vulnerable group amongst anumber of groups exposed to discrimina -tion (children, old people, individuals of aparticular ethnic background or race, indi-viduals with special needs, etc). Womenrepresent half the world’s population andcan therefore not be compared to suchother groups because of their sheer num-bers. In addition, women also belong tosuch groups as well and are therefore discri-minated against both as women and asmem bers of such groups, which means theyare victims of multiple discrimination.

The United Nations laid the founda tionsfor a new development with the compre-hensive, but legally not binding Declarationon the Elimination of Discrimination againstWomen (DEDAW)1 of 1967. On De cember 18,1978 this evolution culminated in the adop-tion of the broadly based and this timelegally binding UN Convention on the Elimi-nation of all Forms of Discrimination against

7 What is CEDAW?

What is CEDAW? Introduction to the UN Convention on the Elimination of All Forms of Discriminiation against Women

Hanna BeateSchöpp-Schilling

1 Declaration on the Elimination of Discrimination againstWomen.


Women (CEDAW) which already took effectas of September 3, 1981. In October 1982,the Committee on the Elimination of Discri-mination against Women (CEDAW Commit-tee) held its first meeting in Vienna. TheGeneral Assembly of the United Nationssupplemented the Convention by a so-calledAdditional or Optional Protocol which en -ter ed into force on December 22, 2000. Theprocedures for monitoring violations of thehuman rights of women de fined in thisOptional Protocol are explained in detail inthe fourth chapter below.

By autumn 2007, 185 member states ofthe United Nations had ratified this Conven-tion or acceded to it. Only very few stateshave not done so. However, at present evena ratification or accession by all countrieswould not mean wordwide compliance withthe dual ban of discrimination against wom -en on the grounds of sex and marital statusor with the demand for equality, equal treat-ment and equal status of women and men,since the existing States Parties have not yetaccepted all Articles of the Convention. Forpolitical, legal and religious reasons somestates have entered so-called reservationsagainst certain Articles. Under the Conven-tion, such reservations are permissible (Arti-cle 28, para. 1), but they must not impair the“objects and purpose” of these (Article 28,para. 2). In the opinion of the Committeeand some States Parties, including Austria,many reservations run counter to the objec-tive and purpose of the relevant Articles. Of185 States Parties, 88 have so far endorsedthe Optional Protocol, ag ainst which noreservations may be made, although StatesParties may opt out of the investigation pro-cedure defined as one part of it.

At the second UN World Women’s Con-ference in Copenhagen, Austria signed theConvention on July 17, 1980 and ratified it onMarch 31, 1982 with reservations concerningArticles 7, b (armed military service of wom -en) and 11 (protective measures for nightwork of women and other protective meas -ures for working women). Austria signed theOptional Protocol on December 10, 1999 and

ratified it on September 6, 2000. The reser-vations concerning the Convention’s Article7, b and the protection of women doingnight work were withdrawn in 2000 and2002 respectively as a result of amend-ments to previous laws, whereas the reser-vation concerning other protective meas uresfor working women still exists.

No doubt, CEDAW represents the mostimportant international legal instrument forprotection of human rights. It defines thecivic, political, economic, social and cultu-ral rights of women which are contained inthe two international treaties in detail intwo provisions: the ban on discriminationagainst women on the grounds of sex andmarital status and the obligation to grantwomen equality, equal treatment and equalstatus to men. The Convention consists of apreamble and thirty articles. The preamblestates clearly that all forms of discrimina -tion constitute a violation of respect forhuman dignity. It also contains many ap -proaches which have been further devel -oped in the Articles and in other legalinstruments and programmes of the UnitedNations since 1979, such as the idea that“the largest possible participation of womenbased on equality in all spheres is the pre-requisite for the complete development ofa country, the wellbeing of the world andthe cause of peace”.2 Another fundamen-tal element of this document is the pledgethat full equality of women and men can beattained only if “the traditional roles of menand women in society and in the family”change. This means that women’s capaci-ty to bear children must not lead to discri-mination and that “the upbringing of chil-dren is a task which men and women aswell as society as a whole must share”.

The Articles can be subdivided into those dealing with subject matter and those defining procedures (for detailedexplana tion of Articles dealing with subjectmatter see Karin Tertinegg’s chapter in thisbrochure). The Articles belonging to the firstcategory (Articles 1 to 16, Article 24) set forththe relevant obligations of the states with

8 What is CEDAW?

2 See, for example, theresolution of the UNSecurity Council on“Women, Peace andSecurity“ (2006).


regard to their compliance with the ban ondiscrimination and the principle of equa lityin general (so-called core Articles 1 to 5 and24) as well as for the individual spheresof life of women (specific subject-matter-related Articles 6 to 16). The procedure- oriented Articles (17 to 23, 25 to 30) de -scribe the structure and work of the Com-mittee, the reporting obligation of the StatesParties, the procedures concerning acces-sion to the Convention or modifications toit, as well as re servations and dispute settle -ment mechanisms to be applied in theevent of conflicts between the States Partiesarising out of the Convention.

The most important elements of the “core”Articles of the Convention are the following:• Definition of discrimination: The

Convention defines and prohibits bothdirect and indirect discriminationagainst women on the grounds of sexand the gender-specific role assigned to them, including their marital status(Article 1). In this context, it is worthnoting that the Convention also refersindirectly to multiple discrimination towhich women can be exposed.3

• Definition of equality: The Conventiondefines equality, equal treatment andthe equal status of women and men notonly formally, i.e. in law and before thelaw but also in the substantive sense,i.e. in the exercise and enjoyment ofhuman rights, women must de facto be equal, be treated equally and haveequal opportunities to those of men, so that they can attain equal outcomes.(Articles 2, 44, para one, 24)

• Endorsement of special measures: TheConvention recognises both the biologi-cal and man-made social differencesbetween women and men; i.e. it allowsthe “States Parties“ and the bodiesdirectly representing state power aswell as other actors to treat women andmen differently, so as to make sure that women can enjoy de facto equality,equal treatment and equal status.

Therefore, special measures for the protection of women, i.e. maternity protection provisions taking intoaccount women’s capacity to bear andbreast-feed children are permissible,but should be checked from time totime for their necessity and content.Time-limited special measures whichserve the advancement of women oreven the preferential treatment ofwomen in order to accelerate the pro-cess of attaining de facto equality ofwomen and men are also permitted,and in the eyes of the Committee arenecessary in order to reach this objective. (Article Four).

• Reference to all forms of discriminationin all spheres of life: The Conventioncovers all forms of discrimination in allspheres of life, including discriminationthat occurs in the family. This is parti-c ularly important as the rules of equa -lity, equal treatment and equal status,including protection against violencewithin marriage and the family werenot applied for decades because ofpatriarchal concepts – and in a series of countries are still today disregarded(Article 1).4

• The influence of culture: The Conven -tion calls for the modification or aboli -tion of practices, customs and patterns of conduct imposed by a culture orfaith which seek to promote prejudices concerning inferiority of women to menas well as sex-stereotyped roles and tojustify discrimination against women(Article 2, letter f; Article 5, letter a)

• Obligations of the “States Parties“: TheConvention illustrates the obligationsthat the “States Parties“ must meet.These include, amongst other things,immediate action in the form of legal orother measures in order to ensure thefull development and advancement ofwomen for the purpose of guaranteeingthem the enjoyment of human rightswithout discrimination on the groundsof their sex and marital status. Further-

9 What is CEDAW?

3 Groups of Women areexposed to multiplediscrimination, i.e. notonly as women on thegrounds of their sex ormarital status, but alsobecause of other lifecircumstances and factors. By devoting aseparate article (14) towomen in rural areas inwhich the majority ofwomen live worldwide,the awareness isheightened too, of multiple discriminationagainst other groups ofwomen, for instance onthe grounds of a certain“race” or ethnic group,their age or health status.4 See General Recom-mendation no. 25.


more, the States Parties assume respon-sibility for the implementation of theConvention not only by civil servants,but also by private individuals, companies and organisations. Althougha State Party may freely choose the wayin which it implements the Convention,it must at all costs attain the outcomesby granting the rights de facto and meeting the obligations defined in the Convention. (Articles 2, 3, 24)5

The States Parties must also take into ac -count all elements of the “core Articles“when implementing measures relating tothe specific contents of Articles six to six-teen. These Articles cover the prohibition oftrafficking in women and the exploitation ofwomen through prostitution as well as theban on discrimination of women in publicand political life and in the representativebo dies of their countries, in nationalitylaws, education, training and working life,in health care, in all spheres of economicand social life, in their legal status and legalcapacity as well as in marriage and familylife. In accordance with these core Articles,the States Parties must always raise theques tion, when cases of discrimination asdefined in these Articles have been identi-fied, as to whether direct or indirect discri-mination has occurred. Furthermore, theStates Parties have to analyse to what extentthese forms of discrimination are rooted inconcepts imposed by their culture, whichmust be made obsolete through laws, infor-mation and education. It must also answerthe question as to whether protective ortime-lim ited special measures are neces saryand whether the selected measures result insig nificant outcomes, i.e. achieving equalityof wo men and men in women’s everydaylives.

The Committee has described in detailthe significance of the individual Articles,explained the obligation of the States Par-ties and pointed to cases of discriminationwhich are not expressly mentioned in thetext of the present 25 General Recommen-

dations. With the General Recommenda -tions nos. 12 (1989), 14 (1990) and espe -cially 19 (1992), the Committee was the firstbody in the United Nations to raise its voice to draw attention to violence againstwomen and genital mutilation as a specificform of violence, which it interpreted as aform of dis crimination and it made clearthat the States Parties must prevent suchhuman rights violations through legisla tionand other measures, punish the perpetra-tors, rehabilitate and indemnify the victimsand resocialise the offenders.6 The finaldocuments of the various UN world confe-rences in the 1990s, especially the Platformfor Ac tion of the Fourth World Women’sConference in Beijing (1995), which are notlegally binding, must also be read in orderto gain deeper insights into the individual,legally binding, substantive Articles ofCEDAW. These documents contain profoundproblem analyses and detailed recommen-dations for action.

The CEDAW Committee monitoring theimplementation of CEDAW consists of 23members from all continents. The Commit-tee members are nominated by the Stat esParties and elected for a period of fouryears. Re-election is permitted. These mem-bers serve in an honorary capacity and areindependent of possible instructions fromthe countries that nominated them. Theyare familiar with the diverse legal systemsand cultures which must be adapted to therights and obligations of the States Partiesset forth in the Convention. These expertscome from different professional back-grounds and therefore can identify the wide-ly ranging forms of discrimination in vari -ous spheres of women’s lives. Since 1982only three male experts have served on theCommittee. To date no Austrian expertshave worked on the Committee. The Com-mittee meets several times a year for sever -al weeks. It is supported in its work by theadministration of the United Nations. In theperiod from 1982-2007 this support wasgiven by the UN Department for the Ad -vance ment of Women, first in Vienna and

10 What is CEDAW?

5 Articles 9 and 15 pro -vide for the immediate,full equality of womenand men in law andwith respect to rights to“acquire, change or re -tain their nationality”. 6 Pursuant to Article 21,para. one, the Commit-tee may make suchGeneral Recommen -dations. These can beaccessed in all UNlanguages on theinternet site of the Com mittee (see linksand literature).


later in New York. From 2008 onwards, theOffice of the High Commissioner for HumanRights in Geneva and New York will performthis task for the Committee.

The Convention and the Optional Pro-tocol indirectly define the main tasks of theCommittee, namely to check by means ofthree different procedures whether theStates Parties implement and comply withthe Convention. The first procedure, whichhas been applied since 1983, consists of re -ceiving reports. In accordance with the Con-vention, each State Party must submit writ-ten reports to the Committee at regularin tervals, starting one year after the entryinto force of the Convention and subse-quently every four years or as often as theCommittee demands such reports (Article18). The Committee evaluates these reportsand addresses further questions to the re -spective government in writing. The reportand the written answers to these questionsare then discussed in a five hour meetingwith a government delegation from the re -spective State Party. In accordance with cur-rent practice, the Committee will subse-quently summarise the findings of the auditand the outcome of the discussion in a“Con cluding Comment“ which points outthe positive and negative aspects of the im -plementation of the Convention by the StateParty and makes recommendations for fur -ther action to be taken through the adop -tion of laws or other measures and pro-grammes. In the event that the respectiveState Party fails to take action, the Commit-tee can only exhort the state to comply withthese demands when the following reportis discussed, as it does not have the powerto impose sanctions. However, today thesereports and the “Concluding Comments“ areaccessible for the general public and caneasily be down-loaded from the internet sothat a State Party can be “put to shame”. Todate, Austria has submitted six nationalreports which were discussed with the Com-mittee at a total of four sessions.

The Optional Protocol also provides forcomplaints and investigation procedures. In

the first case individual women or groupsof women may address themselves to theCommittee if they believe that their rightsun der the Convention have been violated bythe state, a private person, organisation orbu siness enterprise and that these viola -tions have not been (properly) prosecutedby the national courts. With its third pro-cedure, the Committee can conduct an in -vestiga tion on the basis of reliable informa -tion on se vere or systematic violations ofhuman rights in a particular state.7 In bothof these cases, the Committee does not actas a tri bunal but merely issues recomm en -da tions.

Each of these three procedures has theaim of improving the situation of womenwith regard to equal rights, equal treatmentand equal status with men in the exerciseand enjoyment of their human rights in therespective State Party. Today the Committeecan look back on twenty-five years of acti-vity characterised by success.8 Pursuant tothe respective Articles of the Convention, theCommittee, in analysing the national re ports,expresses a clear opinion on the si tu a tionof women in all spheres of life. In the com-plaints procedure, the Committee eval uatespotential violations of one or several rightsof individual women or groups of women.In the investigation procedure, the Com -mittee addresses systematic and structuralviolations of women’s human rights inselected areas. In all three procedures theCom mittee is supported in its work by thespecialised agencies of the United Nations,primarily by national and international hu -man rights and women’s associations,which supply additional information in theirso-called “shadow reports”. Women’s andhuman rights associations also demon -strate the practical value of the Conven tionin the everyday lives of women. They do sothrough lobbying with the governments ofthe States Parties, by assisting women whosubmit complaints or by drawing the Com-mittee’s attention to severe and system aticviolations of women‘s human rights in theirrespective countries.

11 What is CEDAW?

7 From Austria, to datetwo complaints weresubmitted by associa -tions on behalf of twowomen, to which theCommittee respondedwith positive decisionsin August 2007.8 See Schöpp-Schilling/Flinterman 2007.


Historical developments in the United Nations

Towards the end of the Second World War,the victorious allied powers took the firststeps towards founding a world organisa -tion for international co-operation and thepre servation of peace and security. At thefounding conference of the United Nationsin San Francisco in 1945 some of the partici -pating women insisted that the principle ofequal rights for men and women be en -shrin ed in the Charter of the United Nations.Since that time, women worldwide havedrawn attention to the fact that “the fun-damental rights of individuals, the dignityand value of human beings, equal rights ofmen and women as well as of nations bigand small” are specified in the Preamble ofthe UN Charter.

In response to a motion submitted byBertha Lutz, the Brazilian delegate, the Eco-nomic and Social Council of the United Na -tions (ECOSOC) set up a Commission whichwas entrusted with the task of analysing thepolitical status of women. Initially, this Com-mission was established as a sub-unit of theHuman Rights Commission.

The delegate of the US, Eleanor Roose-velt, together with 16 female delegates andadvisers from eleven states, prepared anopen letter to the world’s women which sheread out in their names on the occasion ofthe First General Assembly of the UnitedNations in London in February 1946: “Werecognise that women in various parts of theworld are at different stages of participa tionin the life of their community, that some ofthem are prevented by law from assumingfull rights of citizenship, and that they there -fore may see their immediate problems

somewhat differently. Finding ourselves inagreement on these points, we wish as agroup to advise the women of all our coun-tries of our strong belief that an importantopportunity and responsibility confront thewomen of the United Nations: first, to recog-nise the progress women have made duringthe war and to participate actively in theeffort to improve the standards of life intheir own countries and in the pressingwork of reconstruction, so that there will bequalified women ready to accept responsi-bility when new opportunities arise; second,to train their children, boys and girls alike,to understand world problems and the needfor international cooperation, as well as theproblems of their own countries; third, notto permit themselves to be misled by anti-democratic movements now or in the fu -ture; fourth, to recognise that the goal of fullparticipation in the life and responsibilitiesof their countries and of the world commu-nity is a common objective toward whichthe women of the world should assist oneanother.”

The seven members of the “sub-Com-mittee“ (from Denmark, the DominicanRepublic, Lebanon, Poland, France, Indiaand China) met in May 1946, protestedagainst their subordination to the HumanRights Commission, started to work out theirterms of reference and to continue theirwork at any rate “until women will havereached the point where they are on a parwith men. In practice, priority should begiven to political rights because without these little progress is possible.” At thattime, women in 30 of 51 states did not havethe right to vote (in Austria women’s gene-ral right to vote had been introduced in1918). On March 29, 1947, these women

12 What are the origins of CEDAW?

What are the origins of CEDAW?The history of the UN Convention on the Elimination of all Forms of Discrimination against Women

Dorothea Gaudart


succeeded: the Commission on the Statusof Wo men (CSW) was established andenjoyed equal status with the Human RightsCommission within the system of the Unit -ed Nations. The scope of responsibilities ofthe Commission on the Status of Womenwas defined as follows: “Preparing recom-mendations and reports for the Economicand Social Council with a view to advancingwomen’s rights in the fields of politics, busi-ness, social life and education, and to treat problems in the sphere of women’srights urgently which call for immediateattention in order to assert the principle thatmen and women have equal rights, to pre-pare proposals to this end and to issue rele-vant recommendations.“ (ECOSOC Resolu-tion 48(IV) of March 29, 1947)

Some figures illustrate the further devel -opments within the UN. Since the foundingconference in 1945, the number of memberstates of the United Nations has risen from51 originally to 192. At the beginning, theCommission on the Status of Women con -sisted of representatives from 15 memberstates which were elected by the UN Econo-mic and Social Council. Since 1990 the Com-mission on the Status of Women has con-sisted of 45 members. Its regional com - position is as follows: 13 African states, 11Asian, 4 Eastern European, 9 Latin Ameri-can and Caribbean states as well as 8Western European and other states. Themembers, who are elected for a term of fouryears, determine the admission of govern-ment delegates; observer states are alsoadmitted. Austria joined the United Nationsafter the allies had left the country and theState Treaty had been signed in 1955. Austriawas a member of the Commission on theStatus of Women in the years 1965 to 1967,1970 to 1972, and 1989 to 1996.

International co-operation

The Commission on the Status of Womengathers information on gaps between the dejure and de facto situation as well as on

wom en’s circumstances of life in the mem-ber states and evaluates this material. Allinformation is compiled with extensiveques tionnaires which are sent to the mem-ber states and non-governmental organisa-tions (NGOs). These documents are supple-mented by expert interviews, statisticalanalyses and expert opinions. After one totwo years of such surveys, the results of these evaluations are submitted to the Com-mission on the Status of Women in the formof country comparisons. The respectivegovernment representatives then have todeliberate and draw conclusions with aview to drafting agreed texts for resolutions,recommendations, declarations and agree-ments. Subsequently, the Commission onthe Status of Women communicates thesefinal texts via the Economic and SocialCouncil to the senior body of the UnitedNations for decision-making, namely theGeneral Assembly, which convenes in Sep-tember each year.

Deliberations on the final conclusionsabout the individual technical areas takeplace in the Special Agencies of the UnitedNations, such as the International LabourOrganisation (ILO) which deals with econo-mic and social issues and UNESCO (UN Ed -ucational, Scientific and Cultural Organisa-tion) which analyses questions relating tothe education of women.

Since its inception, the Commission onthe Status of Women has maintained goodworking relationships with internationalnon-governmental organisations. Hence na -tio nal women’s organisations have beeninvolved in the worldwide joint efforts toimprove the status of women through these international umbrella organisations.

Reasons for the creation of separate agreements and legalinstruments for women

The kind of non-discrimination provisiontraditionally added to human rights treatieswhich ban discrimination on the grounds of



race, language, religion, origin, political con-victions and also because of sex, ignores thefact that women do not constitute a sub-category of humanity. Human beings areneither sexless nor abstract. For a long timethe idea of the universality of human rightsas well as law per se conveyed the impres-sion that human beings were sexless andabstract. One consequence of this conceptwhich is still widespread today is exclu siveuse of the male form in language.

The General Declaration of HumanRights and the International Human RightsConventions are based on the fundamen-tal principle of equality and non-discrimi-nation. Although non-discrimination was aprecept that was recognised worldwide, the elimination of discrimination on thegrounds of sex fell far short of being trans-lated into reality in every part of the worldeven after the adoption of the human rightstreaties.

For this reason, the Commission on theStatus of Women proposed additions to thehu man rights conventions as drafted in or -der to draw world public attention to prob -lems and existing inequalities betweenwomen and men – even in times of the ColdWar. The central task of the Commission onthe Status of Women is the elaboration ofuniversal, i.e. generally valid standards con-cerning the equal status of the sexes in allspheres, especially in politics and publiclife, in education, in the labour market, inthe health sector, in economic and socialilfe, in cities and rural areas, and in mar -riage and the family. Comprehensive infor-mation and the evaluation of data on thelegal status of women allow the Commis-sion on the Status of Women to define pro-gressively in greater detail women’s humanrights and enshrine these in various treatiesand legal instruments.

Thanks to the efforts of the Commissi-on members, women’s rights have beenintegrated into a host of international decla-rations and treaties, as reflected in the listbelow:

• Convention on the Political Rights ofWomen, 1952

• Convention on the Nationality of Married Women, 1957

• Convention and Recommendation onConsent to Marriage, Minimum Age forMarriage and Registration of Marriages,1962 and 1965

• Declaration on the Elimination of Discrimination of Women, 1967

• Convention on the Elimination of allForms of Discrimination of Women,1979

• Declaration on the Elimination of Violence against Women, 1993

• Optional Protocol to the Convention on the Elimination of all Forms of Discrimination against Women, 1999

It should also be noted that international“recommendations” and “declarations” arenot directly binding for states, although theyserve as guidelines for future action. In con-trast, international “treaties” and “conven-tions” impose an obligation on the statesthat have ratified them to comply with theprin ciples defined in these legal instrumentsand to transpose the accepted provisionsinto their national constitutions or legis -lation.

The UN Convention on the Elimination of all Forms of Discrimination against Women

The UN Convention on the Elimination of allForms of Discrimination against Womenadopted on December 18, 1979 constituteda very important step towards the realisa -tion of the principle of equality of men andwomen in all spheres of life. The Conven -tion represents an especially significantdocument as it bans discrimination ofwomen in all spheres of life and imposeson the States Parties the obligation to en -sure de jure and de facto equality. It statesthat the principle of equal rights applies toall women, irrespective of their marital



status. Opened for signature on March 1,1980, the Convention was signed by 51 statesduring the inaugur al ceremony of theSecond World Women’s Conference andtook effect on September 3, 1981. The grow -ing political will of the member states toimplement the Convention worldwide ismirrored by the ever larger number of rati-fications.

Elaboration of longer-term programmes for the advancementof women

Since the 1960s the number of states thathave become members of the United Na -tions has risen sharply. Programmes, con-sultancy services and technical support forthe advancement of women are especiallyfocused on women in the Third World andtheir integration into the development pro -c esses in their home countries. Upon theinitiative of the Commission on the Statusof Women, 1975 was declared the “Inter -national Wo men’s Year” in order to drawworld public attention to this problem area.The objective of this year was to• promote the equality of men and

women,• ensure the integration of women into

development processes in their homecountries, and

• to heighten the contribution of womento international co-operation and tosafeguard and advance world peace.

Since that time, UN World Women’s Con-ferences have taken place in four world re -gions: 1975 in Mexico, 1980 in Copenhagen,1985 in Nairobi, 1995 in Beijing. At theseWorld Women’s Conferences, programmeswere adopted, which had been prepared bythe Commission on the Status of Women.These include, for example, the declarationand the Platform for Action of the FourthWomen’s Conference in Beijing which dealwith strategies for removing hurdles forwomen in 12 crucial areas, also in the

human rights field, and areas covered bythe CEDAW Convention. In Beijing, thegovernment representatives committedthem selves to drawing up National ActionPlans for the implementation of the findingsof the Conference. To this end, the scope oftasks of the Commission on the Status ofWomen was enlarged: since 1996 it has thusalso been responsible for implementing theBeijing Declaration and Platform for Action.

In the 1990s, the CEDAW Committeemaintained a special relationship with allUN World Conferences by making topicalstatements on the human rights situation ofwomen and through active participation ofthe chairperson or individual experts of theCommittee in these conferences. Converse-ly, these World Conferences upgraded theCEDAW Committee’s status worldwide, asdid the World Conference on Human Rightsheld in Vienna in 1993, for example.

In June 1993, 2100 government repre-sentatives from 172 states participated in theWorld Conference on Human Rights, and2700 representatives of 1529 organisationstook part in the NGO Forum “All HumanRights for All” which was held at the Vien-na International Centre. Half of the NGO re -pre sentatives were women from all regionsof the world.

The general objectives of these eventswere, for example, the auditing and assess-ment of progress in the field of human rightssince the adoption of the General Declara-tion of Human Rights in 1948 as well as theevaluation of the efficiency of the methodsand mechanisms used by the United Na -tions in the enforcement of human rightsstandards.

During the preparations for this confer -ence, some governments were not preparedto put an item on the agenda dealing withviolations of women’s human rights as ex -plicitly demanded by the Commission onthe Status of Women and the CEDAW Com-mittee.

At that time the dilemma was that thetraditional human rights organisations hadnot yet acquainted themselves with wo m en’s



rights in the light of international le galinstruments, and the traditional wo m en’sorganisations had insufficient know ledge ofthe human rights activities of the UnitedNations.

In this area, the support resulting fromthe numerous parallel activities of the NGOsworking in this field before and after theconference proved extremely valuable.

There was a symbolic tribunal at which25 women from different countries andworld regions gave evidence of humanrights violations to which they had beenexposed before an audience of 1000 per-sons and a body of four judges. These vio-lations of human rights ranged from domes -tic violence to violence in armed conflicts,genital mutilation, political persecution andforced prostitution. These testimonies,which were widely covered by the media,were prepared in the context of a world widepetition and campaign which had beeninitiated by the Center for Women’s GlobalLeadership, Rutgers University, and theInternational Women’s Tribune Center inNew York and supported by more than 200international women’s NGOs.

The World Conference on Human Rightsheld in 1993 in Vienna adopted the ViennaDeclaration and a Programme of Action.Article 18 of this Declaration reads as fol-lows: “The human rights of women and girl-child are an inalienable and indivisible partof universal human rights. The full andequal participation of women in political,civil, economic, social and cultural life, atthe national, regional and internationallevels, and the eradication of all forms ofdiscrimination on grounds of sex are priori-ty objectives of the international communi-ty. Gender-based violence and all forms ofsexual harassment and exploitation, includ -ing those resulting from cultural prejudiceand international trafficking, are incompat -ible with the dignity and worth of thehuman person, and must be eliminated.“The Programme of Action calls, inter alia,for “the promotion of the equal status andhuman rights of women as a priority” issue.Furthermore, the governments of the StatesParties are called upon to ratify the Conven-tion and to withdraw reservations. Ultimate -ly, the States Parties and the United Nationsitself are exhorted to disseminate informa-tion on the Convention and to carry out spe-cial training programmes for persons work -ing in the judiciary, law enforcement andthe public health sector and offer targetedtraining in this area for peace-keeping oper -ations of the United Nations.



What has a treaty under international lawgot to do with the everyday lives of women?How does such a treaty influence the oppor-tunities of women in Austria to shape theirlives according to their wishes? The UN Con-vention on the Elimination of all Forms ofDiscrimination against Women (Federal LawGazette no. 443/1982) affects the everydaylives of women in Austria as it provides con-crete answers to the following questions:What do human rights mean for women?What does discrimination against womenmean? What has discrimination got to dowith violence against women in their pri -vate relationships, with residence and workpermits, with their access to safe methodsof abortion, with the family names of couples?What can women do if their rights are dis-regarded? The Convention and the state-ments of the CEDAW Committee clarify therights of women in all spheres of life, in thepublic and in the so-called private domains.Furthermore, CEDAW imposes concrete obli-gations on the current Austrian governmentand on future governments of this country:25 years ago, Austria committed itself totaking all necessary steps in order to as surethat women in Austria can de facto exer ciseand benefit from all rights in all spheres oflife, and all forms of discrimination are eli-minated.

What do human rights mean for women in Austria?

As illustrated by Hanna Beate Schöpp-Schil-ling in this brochure, human rights are thefundamental rights to which every indivi-dual is entitled on the basis of his/her hu -man dignity. Human rights are enshrined in

the constitution of states and in internation -al law. They restrict the power of the stateand ensure, at the same time, that statesautomatically guarantee all people theenjoyment of human rights. By exercisingtheir human rights, individuals can shapeand influence their lives on the basis of free-dom, equality, and respect for human digni-ty. Governments and other bodies have theobligation to respect, protect and guaranteehuman rights. Human rights constitute thebasis for legal entitlements and sanctionsin case of non-compliance.

The chances of individuals to exercisethe human rights to which they are entitledand to shape their own lives are, to a greatextent, determined by various circumstan-ces. In most cases, these are gender, nation -ality, financial status, sexual orientation,ethnic or “racial” background or origin,faith, special needs, marital status, etc.

In many cases, women suffer from mul-tiple disadvantages in their claims to, or ex -ercise of human rights because they be longto an ethnic minority, are handicapped, livein poverty, or have a particular nationali-ty. Under the Convention the States Partiesare obliged to guarantee the de jure and defacto equality of women and men and theopportunity for every woman to exerciseand enjoy the human rights to which sheis entitled.

How is discrimination against women defined?

Article 1 of the Convention defines discrimi-nation against women as follows: …“theterm discrimination against women shallmean any distinction, exclusion or restric -

17 What is the meaning of CEDAW?

What is the meaning of CEDAW? Women’s human rights and obligations for Austria

Karin Tertinegg


tion made on the basis of sex which has theeffect or purpose of impairing or nullifyingthe recognition, enjoyment or exercise bywomen, irrespective of their marital status,on the basis of eqality of men and women,of human rights and fundamental freedomsin the political, economic, social, cultural,civil or any other field.”

Discrimination against women on theground of sex may occur in direct or indi-rect form. This means that on the one hand,women may be exposed to discriminationif the language used put them at a disad-vantage vis-à-vis men (direct discrimina -tion), or if, on the other hand, so-called gen-der-neutral language is used which resultsin a de facto discrimination against womenin practice (indirect discrimination). Discri-mination “on the grounds of sex” impliesthat the label “female“, “girl“ or “woman“is applied to individuals because of physi-cal traits on the one hand (sex), and, underthe Convention “on the grounds of sex” alsomeans society’s concepts as to what charac-teristics girls and women have or shouldhave or what roles they play or should play(gender). To date, the ideas about the fea-tures and roles of women and the relation -ship between the sexes – although these dif-fer widely – have led to a situation in whichwomen, in comparison to men, do not have the same opportunities and rights to shape their lives, in Austria just as in allother states worldwide.

Article 2 of the Convention stipulatesthat all States Parties condemn discrimina-tion against women in all its forms, andagree to pursue by all appropriate meansand without delay a policy of eliminatingdiscrimination against women and, to thisend, undertake: • to embody the principle of equality of

men and women in their national constitutions and to ensure, throughlaw and other means, the practical realisation of this principle;

• to adopt measures prohibiting all discrimination against women;

• to ensure (through national tribunals

and other public institutions) the effective protection of women againstany act of discrimination;

• to take all appropriate measures to eliminate the discrimination againstwomen by any person, organisation or enterprise;

• to take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitutediscrimination against women;

• to repeal all national penal provisionswhich constitute discrimination against women.

Therefore, States Parties must ensure thatwomen can enjoy equality in all spheres oflife without being hampered to do so by anyindividual acting on behalf of a state or byprivate persons, organisation or enterprises.

Article 3 obligates all States Parties toensure the full development and advance-ment of women, especially in the political,social and economic areas.

Article 4, para.one, imposes the obliga-tion on States Parties to adopt temporaryspecial measures aimed at accelerating defacto equality between men and womenwhich are not to be considered discrimina-tion as defined in the Convention. This re -fers, for example, to statutory quotas, whichaim at affirmative action in areas in whichwomen have been underrepresented todate until they enjoy de facto equal parti-cipation and representation in these areas.

Article 5 imposes the obligation onStates Parties to take all appropriate meas -ures to modify the social and cultural pat-terns of conduct with a view to achievingthe elimination of prejudices, traditions,practices and customs related to the con-ventional role models and stereotypes ofmen and women. One example is the ideathat women are mainly responsible for house-keeping, the upbringing of childrenand the care of family members. Thesetasks which are related to household, child-care and family obligations must be fairly



shared between men and women in accord -ance with Article 5 of the Convention.

What other spheres of women’slives are additionally addressedby the Convention?

Apart from the comprehensive core Articles,the Articles relating to subject matter ad -dress various spheres of women’s lives.

Article 6 obligates the States Parties totake all appropriate measures to suppressall forms of trafficking in women and exploi-tation of prostitution of women. Hence theStates Parties have the obligation to ensurethat women trafficked into all types of pre-carious employment (i.e. domestic employ -ees, seasonal temporary jobs, sex work) canexercise all human rights to which they areentitled. In addition, the States Parties mustcreate the conditions under which sex workis done in such a way as to prevent the ex -ploitation of sex workers and to ensure thepreservation of all their rights.

Article 7 deals with the discriminationof women in the political and public life ofthe country. This means the right to vote inall elections and to be eligible for election,to participate in the formulation of govern-ment policy and the implementation there-of and to hold public office, perform allpublic functions and participate in non-governmental organisations.

Article 8 imposes the obligation on theStates Parties to ensure women on equalterms with men the opportunity to repre-sent their governments at the internationallevel and to participate in the work of inter-national organisations.

Article 9 refers to the discrimination ofwomen in acquiring, changing or retainingtheir nationality and stipulates that womenare granted equal rights with men with re -spect to the nationality of their children.

Articles 10, 11 and 12 deal with the eli-mination of discrimination against womenin education, in the labour market and inthe field of health care. These provisions

are very comprehensive and refer to vital spheres in the life of every woman, i.e. edu-cation, training and free choice of profes sionand employment, working conditions, ac -cess to health care, which take into accountthe specific needs of women in different lifesituations.

Article 13 prohibits discrimination inother areas of economic, social and cultur -al life.

Article 14 addresses the advancement ofwomen in rural areas.

Article 15 guarantees women, in civillaw matters, a legal capacity identical tothat of men. This, for example, impliesequal treatment of women in court proceed -ings.

Article 16 deals with the equal treat-ment of women in all matters relating tomarriage and family relations. The mostimportant provisions of this Article are theequal right of women to enter into mar -riage, the same right freely to choose aspouse and to enter into marriage only withtheir free and full consent, the same rightsand responsibilities during marriage and atits dissolution; the same rights to decidefreely and responsibly on the number andspacing of their children and all matters re -lated to their children. This Article also pro -vides for the same personal rights for hus-band and wife, including the right to choosea fa m ily name, a profession and an occupa -tion.

The provisions of Articles 2, 4, 5 and 16are of particular relevance for a funda -mental change in the status of women insociety.

What has discrimination to dowith violence against women?

Violence against women, in all of its forms,constitutes a very severe violation of humanrights. As pointed out by Hanna BeateSchöpp-Schilling in her contribution, theCEDAW Committee, by issuing three “Gener -al Recommendations” to date, especially



the General Recommendation no.19, hasbeen instrumental at the international levelin achieving the recognition of violenceagainst women in the family or other rela-tionships as a violation of human rights andas discrimination within the meaning of theConvention. Only as a result of this recogni-tion was it rendered possible to hold statesresponsible for preventing and punishingacts of violence in the private sphere whichare in most cases committed by menagainst women. The States Parties to theConvention are obliged to ensure that wom -en are effectively protected against such actsof violence and to create conditions underwhich the victims can escape such vio -lence. In Austria, this concerns, at present,provisions of aliens’ law, social and mar -riage laws as well as labour market policies.Under the current Austrian legislation it isclearly very difficult or even impossible formany women who want to escape violenceon a permanent basis to do so. But it is afundamental human right of every womanand girl to live without being exposed to anyform of violence, also within relationships.

What does this mean for Austria?

When Austria ratified CEDAW 25 years ago,it assumed the obligation at the internation -al level to take all necessary measures inorder to ensure that no woman will be dis -criminated against because she is a woman.

Many legal provisions which because oftheir wording directly discriminated againstwomen were amended or repealed over thepast 25 years. One example of persistingprovisions discriminating against womendirectly is, for example, the provision thatchildren will automatically adopt their fa -ther’s family name, if no common familyname was chosen. This provision representsa violation of the obligations assumed un -der the Convention and must be lifted in thecourse of the Convention’s implementation.Furthermore, many examples persist whichdemonstrate that women are indirectly

discriminated against on account of theirsex and thus must be amended. The Con-cluding Comments of the CEDAW Commit-tee give a survey of the most urgent meas -ures for the elimination of all forms ofdiscrimination against women, whichAustria was exhorted to adopt on the occa-sion of the last assessment of the imple -ment ation of the Convention there (websiteof the Minister for Women’s Affairs, seelinks and literature).

Under the Convention, Austria has theobligation to guarantee, protect and as surehuman rights, and in doing so, to exercisedue diligence. This due diligence must alsobe applied by persons who act on behalf ofthe state. If, for example, individuals inpublic administration, judges, public prose-cutors, police officers – male or female –take decisions which will impair the exer -cise of women’s rights in practice, Austriahas the obligation under the Convention toprevent such action and to impose appro-priate sanctions.

Under the Convention, Austria has com-mitted itself to taking all necessary steps inorder to eliminate discrimination by pri vateindividuals, organisations and enterprises,and to apply due diligence in all of thesecases.

What does this mean for women who live in Austria?

Do migrant women living in Austria havethe right to obtain their own residence andwork permits, irrespective of the fact thatthey are married? Do female asylum seekersand refugees have the right to claim thatgender-specific reasons for their persecu tionare recognised? Do women in Austria havethe right to be represented in decision-making positions in business, educationand politics on a par with men? Do theyhave unrestricted access to contraceptivesand to medically safe abortion? Can theylive in relationships free from violence? Isthe work typically done by women remuner -



ated with equal pay as such work typicallydone by men? Are women in Austria whohave done unremunerated work in thehouse hold, in the upbringing of childrenand care of family members adequatelycovered by social insurance, withoutdepend ing on marriage or life companions-hip for such social insurance coverage?

Under CEDAW, every woman who livesin Austria has the right to the recognition,enjoyment and exercise of the human rightsand fundamental freedoms to which she isentitled without being hampered or impair -ed in doing so on the grounds of sex by apublic institution, a private person, organ -isation or enterprise.

Under CEDAW, every woman can claimthe rights and obligations to which Austriahas committed itself as a State Party to theConvention. Any woman who believes thather rights which are guaranteed by the Con-vention have been violated may submit anindividual complaint to the CEDAW Commit-tee, once all national legal remedies havebeen exhausted.

CEDAW clearly defines that violenceagainst women in whatever form it occurs,either in the domestic sphere or in public,constitutes a violation of human rights.Austria has the obligation to effectively pro-tect women against violence and to punishacts of violence. CEDAW also states unequi-vocally that men resorting to violenceagainst women must be held liable for theirbehaviour and that the right of women tolife and physical and mental integrity takesprecedence over any other right (i.e. theoffender’s right to respect of his privacy).

CEDAW also clearly points out that tra-ditional concepts or stereotypes of the rolesof women and men, such as the conceptthat women are mainly responsible for theeducation and care of their children andmen are primarily the bread-winners in thefamily, constitutes discrimination within themeaning of the Convention.

What does thismean for non-governmental organisations(NGOs)?

Active equality policy and the eliminationof discrimination against women is not anational concern to which political partiesand governments may or may not devotetheir efforts arbitrarily but is an obligationtowards a community of states and citizens.The CEDAW Committee stresses the need forthe involvement of NGOs which are activein shaping women’s policies at the nationallevel and for the provision of the requiredfinance. The Convention and documentsproduced by the CEDAW Committee(“Gener al Recommendations” and “Con -cluding Comments”) represent an excellentframework within which a stronger involve-ment of NGOs and concrete progress inequality policies – also with regard towomen exposed to multiple discrimination– can be demanded as an expression ofAustria’s international obligations. This poli-cy must be pursued until women enjoyequal participation in the political, eco -nomic, social and cultural spheres, in publiclife, in their interactions with public author -ities, in the labour market, in private rela -tionships, in education, in their access tosocial security benefits, and in the family.

Eleanor Roosevelt summed this upappropriately: Any of these places is a place where human rights matter. As longas human rights do not matter there, theydo not matter anywhere – and as long aswomen in Austria are discriminated againstin any of these places, Austria, being a StateParty to the Convention, is responsible fortaking active steps in order to change thesituation.



What possibilities do women have in orderto enforce their rights enshrined in the UNConvention on the Elimination of all Formsof Discrimination against Women? After theConvention entered into force – in Austria in1982 – for a long time women did not havethe option to submit a complaint to theCEDAW Committee, when they felt that theirrights as defined in the Convention were vio-lated. Thanks to an addition to the Conven-tion, the so-called “Optional Protocol”which took effect on December 22, 2000(Federal Law Gazette III 206/2000), thisopportunity was created for every womanliving under the sovereign power of theRepublic of Austria, irrespective of hernation ality.

Why was an Optional Protocolworked out?

With a view to monitoring violations ofwomen’s human rights, the Convention stip -ulates as a matter of principle that theCEDAW Committee must give an expertopin ion on the regular reports submitted bythe States Parties and issue recommenda -tions. When the Convention was drafted, aproposal was made that women should begranted an individual right of complaint, butthis proposal was not adopted. At that timesome delegates believed that the discrimi-nation against women did not constitute a“severe crime under international law” forthe prosecution of which such a procedurewould be required, like apartheid and ra -cial discrimination. Only the final documentof the Vienna Human Rights Conference in1993 as well as the Beijing Platform forAction of the Fourth World Women’s Confe-

rence in 1995 did urgently call for such acomplaint procedure. The UN Women’sCommittee set up a working group in 1996which it entrusted with the preparation ofan optional protocol, in which, under thechairwoman Aloisia Wörgetter, severalexperts from Austria, such as Anna Sporrerand Lilly Sucharipa-Behrmann, played amajor role. Some of the objectives that wereto be achieved with the elaboration of anoptional protocol are listed below: • to ensure a more effective enforcement

of women’s human rights• to disseminate knowledge of CEDAW

and women’s rights enshrined in it in the States Parties and amongst individuals

• to prompt the States Parties to implement CEDAW more effectively and to amend discriminatory laws andchange the administration of these

• to upgrade gender-specific complaintsprocedures in the UN system as well as other existing human rights complaints procedures

• to heighten public awareness ofwomen’s human rights

The Optional Protocol was finally adoptedby the UN General Assembly on October 6,1999. It entered into force in all States Par-ties, also in Austria, on December 22, 2000.The States Parties to the Convention maydeclare, on a voluntary basis, that they wishto adhere to the Optional Protocol. It pro-vides for two additional procedures for theenforcement of women’s rights: an individ -ual complaints procedure (the Communica-tions Procedure) and an inquiry proce dure.The States Parties may restrict their obliga-tions under the Optional Protocol only by


How can women use CEDAW? The Optional Protocol to the UN Convention on the Elimination of All Forms of Discrimination against Women

Karin Tertinegg9

9 At this point I shouldlike to express my spe -cial appreciation for,and pay tribute to AnnaSporrer, expert on theOptional Protocol.


excluding the inquiry procedure throughevoking the opt-out clause.

How can the CEDAW Committeemonitor violations of women’shuman rights?

The CEDAW Committee may initiate aninquiry procedure if it has received reliableinformation of grave or systematic viola tionsby a State Party of rights established in theConvention. The first such inquiry was com-pleted in 2004. The cause for this investiga-tion were abductions, rapes and murder ofwomen in Ciudad Juárez, Chihuahua (Mexi-co). Austria did not opt out of the Protocol.Hence in principle the inquiry proceduredoes apply to Austria.

How can a complaint be submitted to the CEDAW Committee?

Under the Optional Protocol a woman (or agroup of women) may submit a communi-cation to the Committee if she/they be -lieve(s) that a right established in the Con-vention has been violated by a State Party.Such a communication may be submittedby the woman/en concerned or:• on behalf of individuals or groups of

individuals with their consent or• on behalf of a woman (women) if the

author of the complaint can furnishvalid reasons why she/they act(s) onher/their behalf without having receivedher/their consent.

Accordingly, a communications procedurecan be not only submitted by the womanconcerned but also by other persons orwomen’s organisations. Additional prere-quisites for complaints are:• Communications must be submitted in

writing and may not be anonymous. • The communication will be considered

by the Committee only if it concerns a

country that has ratified the OptionalProtocol.

• The woman or women concerned mustbe subject to the jurisdiction of theState Party but need not be nationalsof it.

• All available domestic remedies musthave been exhausted. This does notapply to cases in which the procedurefor obtaining such remedies isunreason ably lengthy or if no effectiveremedy can be expected.

The Protocol also stipulates that the com-plaint is admissible only if: it has not beenexamined by the CEDAW Committee or hasbeen or is being examined under anotherprocedure of international investigation orsettlement; it is compatible with the provi-sions of the Convention; it is obviously notunfounded or the claimant’s allegations canbe substantiated; and it is not an abuse ofthe right to submit a communication. Inaddition, the facts described in the commu-nication must have occurred in the respec-tive State Party after the entry into force ofthe Protocol or persisted thereafter. ForAustria, this date is December 22, 2000.

A guide on the Optional Protocol can beobtained from the Frauenbüro Wien (Vien-na Women’s Office); an English languageversion of a communication can be down -loaded from the CEDAW web site (see linksand literature).

What happens after the CEDAW Committee has received a complaint?

After receipt of a communication theCEDAW Committee has the option of con-tacting the State Party with an urgent re -quest that the State Party take steps to pro-tect the alleged victim or victims fromir reparable harm if the victim or victimsis/are exposed to imminent danger. Wherea communication has been found admis-sible, the Committee will bring the commu-

23 How can women use CEDAW?


nication to the attention of the State Partyprovided that the victim or victims has/haveconsented to disclosure of her/their identi-ty to the State Party. The State Party is givensix months to submit a written explana tionor statement on the complaint to the Com-mittee which, after examination of all infor-mation, will transmit its views and recom-mendations to the parties concerned. TheCommittee will determine whether awoman’s right established in the Conven-tion was violated by a State Party and willissue recommendations concerning remedi-al steps to be taken by the State Party inorder to meet its obligations under the Con-vention. The State Party has six months toprovide a written response including theremedial steps taken on the basis of theCommittee’s views and recommendations.

Under international law, every StateParty has the obligation to accept the viewsand follow the recommendations of theCEDAW Committee.

What complaints have been handled by the CEDAW Committeeto date?

By October 2007, the Committee had dealtwith a total of ten complaints (web site, seelinks and literature). Of the four communi-cations in which the Committee found vio-lations of the rights established in theConven tion, one referred to the forced steri -lisation of a woman (Hungary 4/2004). Thethree other communications referred to theviolations of fundamental human rights ofwomen due to acts of violence by men inrelationships (Hungary 2/2003, Austria5/2005 and 6/2005). In the case of a com-plaint from a woman in Hungary (2/2003),whose husband had committed acts ofsevere violence and had threatened to killher, the Committee ruled that Hungary hadfailed to afford this woman effective andimmediate protection against the grave vio-lence of her husband that had lasted foryears. The Committee found that Hungary

as a State Party had not set up effectivemechanisms for such protection and hencehad failed as a State Party. It recommendedthat Hungary take immediate and effectiveaction in order to assure the physical andmental integrity of this woman, to offer hersafe accommodation and to give adequatesupport for the care of her children, to makeavailable legal aid and to pay indemnifi -cation commensurate with the physical andmental damage suffered by this woman andthe severity of the wrong inflicted on her.Furthermore, the Committee issued compre-hensive recommendations for an immedi -ate improvement of the legal and institution -al mechanisms for the protection againstviolence in Hungary.

The communications concerning casesin Austria were submitted by the VereinFrauen-Rechtsschutz (Association for Wo m -en’s Access to Justice) and the Vienna In -tervention Centre against Domestic Viol ence.Both communications referred to womenwho were murdered by their husbands in2002 and 2003, with both offenders havingcommitted a series of violent acts againsttheir wives and having repeatedly threat -ened to kill them. These women had soughtactively to liberate themselves from thesesituations of violence. The threats and vio-lent acts had been reported to the policeand the public prosecutor’s office; bothoffenders had been evicted from their flatsand they had been forbidden to re-enter theflats or stay in the immediate vicinity oftheir wives. In the criminal proceedings,however, the public prosecutors did nottake the danger emanating from the offen-ders seriously. The offenders were notimprisoned and killed their wives as theyhad threatened to do.



The Committee stated in these two casesthat:• The murder of both women constituted

a violation by Austria of the rightsestab lished in the Convention, as bothwomen’s rights to life and to physicaland mental integrity were violated;

• Despite the existence of numerous legalmechanisms for the protection againstviolence, the steps taken by the statewere insufficient for protecting thesewomen against murder by their hus-bands; and

• The police and judicial authorities wereresponsible for failing to exercise duediligence in the protection of thesewomen.

As regards communication 6/2005 the Com-mittee stipulates that state bodies must inany case exercise due diligence, to whichAustria is committed as a State Party to theConvention. It stresses that every individualwoman who is a victim of violence must beempowered to exercise her human rightsand enjoy her fundamental freedoms andthe perpetrator’s rights can not supersedewomen’s human rights to life and to phy-sical and mental integrity. In particular, theCommittee pointed out that failure of thepublic prosecutors to imprison the perpe-trators constituted a violation of Austria’sobligation of due diligence. The Committeealso drew attention to the fact that the dan-gerousness of one of the criminals probablyalso resulted from his fear of losing his resi-dence permit in Austria in case of a di -vorce. The Committee drew attention to thecurrent Austrian Alien law which significant-ly affects human rights and fundamentalfreedoms and pointed out that in cases ofdomestic violence women are often expos -ed to special threats as a result of the effectsof the provisions of the Austrian Alien Act.

On the basis of those two communications,the Committee recommended to Austria,inter alia:• to exercise due diligence in all acts

aimed at assuring the security ofwomen;

• to enforce and monitor more effectivelythe Act for the Protection against Violence and the relevant criminal lawprovisions;

• to persecute perpetrators of violent actsattentively and promptly in criminallaw proceedings, in order to demon -strate to criminals and the generalpublic that society condemns domesticviolence;

• to make sure that criminal and civil lawremedies are applied in actual practice,if the perpetrator represents a danger to the victim and to see to it that policeofficers, public prosecutors and judgesco-operate routinely with NGOs activein the protection against violence;

• to improve co-operation between lawenforcement and judicial authorities;

• to improve basic and further trainingwith respect to domestic violence forjudges, lawyers and law enforcementofficers and to incorporate informationon the Convention, the General Recom-mendation no. 19 on Violence againstWomen and the Optional Protocol intosuch training programmes.

Austria will prepare a written response toboth communications within a period of sixmonths, including a description of all meas -ures taken, with due regard for the Commit-tee’s views and recommendations. In addi-tion, the expert opinions of the Committeeon the two communications are currentlybeing translated into German and will bewidely published in order to disseminateknowledge about CEDAW, about the estab -lished human rights of women and aboutthe option of individual complaints to thewidest possible number of people.



26 Links and literature

English language links

http://www.un.org/womenwatch/daw/cedaw/ CEDAW web site with comprehensiveinformation on the CEDAW Convention,the CEDAW Committee and the OptionalProtocol

http://www.un.org/womenwatch/daw/cedaw/recommendations/index.htmlGeneral Recommendations of the CEDAWCommittee, such as no. 12 and no. 19 (Violence against Women), no. 21(Marriage and Family), no. 24 (Health), no. 25 (Temporary Special Measures)

http://www.un.org/womenwatch/daw/cedaw/protocol/dec-views.htmExpert opinions of the CEDAW Committeeon submitted communications (individualcomplaints) and investigations conducted

http://www.un.org/womenwatch/daw/cedaw/protocol/modelform-E.PDFModel form for communications to theCEDAW Committee in English

German-language links

http://www.frauen.bka.gv.at/site/5548/default.aspxText of the CEDAW Convention and theOptional Protocol in German

http://www.frauen.bka.gv.at/DocView.axd?CobId=20860Sixth Report of Austria to the CEDAWCommittee (2004)

http://www.frauen.bka.gv.at/DocView.axd?CobId=24129Concluding Comments of the CEDAWCommittee on the Sixth Report of Austria(2007)

http://www.frauenrechtsschutz.atWeb site of the Association for Women’sAccess to Justice

http://www.interventionsstelle-wien.atWeb site of the Vienna Intervention Centreagainst Domestic Violence with contactaddresses of all intervention centres in the Federal Provinces

Links and literature


27 Links and literature

English-language literature

Inter-Parliamentary Union, 2003. The Convention on the Elimination of AllForms of Discrimination against Womenand its Optional Protocol. Handbook for Parliamentarians. United Nations

Hanna Beate Schöpp-Schilling, Cees Flinterman (eds), 2007. The Circle ofEmpowerment: Twenty-five Years of the UN Committee on the Eliminationof Discrimination against Women. New York: The Feminist Press.

German-language literature

Deutsches Institut für Menschenrechte,2005. Die ‘General Comments’ zu den VN-Menschenrechtsverträgen: DeutscheÜbersetzung und Kurzeinführungen.Baden Baden: Nomos Verlagsgesellschaft.[General Recommendations – AllgemeineEmpfehlungen – des CEDAW-Komitees indeutscher Sprache]

Doris König, Joachim Lange, Ursula Rust,Hanna Beate Schöpp-Schilling (Hg.),(publisher), 2004. Gleiches Recht – glei-che Realität? Welche Instrumente bieten Völkerrecht, Europarecht und nationalesRecht für die Gleichstellung von Frauen?Loccumer Protokoll Nr. 71/03. Rehburg-Loccum. See also http://www.loccum.de

Brita Neuhold, Renate Pirstner, SilviaUlrich, 2003. Menschenrechte – Frauen-rechte. Innsbruck: Studien-Verlag.

Anna Sporrer, 2002. Das Fakultativproto-koll zur UN-Konvention zur Beseitigungjeder From von Diskriminierung der Frau.In Ursula Floßmann (Hg.), Fragen zumGeschlechterrecht, Linz: Trauner-Verlag.203–258.

Anna Sporrer, 2001. Leitfaden zum Fakultativprotokoll der UN-Konventionzur Beseitigung jeder Form von Diskrimi-nierung der Frau. Wien: Frauenbüro derStadt Wien. Copies may be obtained from the ordering service of the Office forWomen’s Concerns of the City of Vienna:https://www.wien.gv.at/formulare/frauen/bestellen/


General recommendation General recommendations of the CEDAW Committee for the implementation of women’s human rights

Federal Law Gazette Bundesgesetzblatt, official publication for Austrian laws

CEDAW Convention United Nations Convention on the Elimination of All Formsof Discrimination Against Women

CEDAW Committee Body consisting of twenty-three experts responsible formonitoring the implementation of the Convention

ICCPR International Covenant on Civil and Political Rights

ICESCR International Covenant on Economic, Social and CulturalRights

Optional Protocol Annex to the CEDAW Convention to which states may voluntarily commit themselves

Convention A treaty concluded by various states generating obligationsunder international law. Synonyms for such conventions:covenants or treaties

Preamble First introductory section of an international agreement

Ratification A procedure through which a state assumes its obligationto be bound to a treaty under international law (= to ratify)

Implementation Procedure by means of which the contents of a treaty underinternational law are transposed into national law andmade applicable

United Nations (UN) An international, worldwide organization at present consisting of 192 states. One of the organisation’s maintasks is the protection of human rights.

28 Abbreviations and Glossary | The authors

Abbreviations and glossary

Hon. Prof. Dr.in Dorothea Gaudart has acted as chairperson and served on a number of executiveboards of international bodies and Austrian advisory boards in the former Ministry of Labour and Social Affairs.

Dr.in Hanna Beate Schöpp-Schilling is an international expert for human rights of women and has been a member of the CEDAW Committee since 1989.

Mag.a Karin Tertinegg is engaged in research and performs teaching functions onCEDAW and equality policies in Austria and the EU.

The authors


c da

c dWWhat is CEDAW?The UN Convention on the Eliminationof All Forms of Discrimination against WomenThe human rights of women and what they mean

Ordering Service of the Federal Chancellery1014 Wien | Ballhausplatz 2Tel. 01-53115 2613 | Fax 01-53115 [email protected]


what is cedaw?in the chapter “what is cedaw?” hanna beate schöpp-schilling describes the...

Documents