The Principles of CEDAW
Under CEDAW, the meaning of women’s human rights is constructed on three main principles. These principles serve as useful tools not only through which we can better perceive gender discrimination, but on which we can act and strategise to dismantle long standing prejudices and barriers that have been preventing women from exercising their human rights and freedoms. Following is a brief explanation of each principle. Although each of them is a distinct element in itself, they are also interdependent. Taken together, they provide a holistic framework for achieving women’s rights.
The Principle of Equality
The traditional approach to equality has been to treat men and women the same. This means that simply by appointing an equal number of men and women to the same positions in companies or government offices, it is believed that gender equality can be achieved. This traditional approach, also known as formal equality does not focus on the actual outcome of the appointments - whether or not the women appointed to the same positions have equal access to and opportunities for capacity and skill development, training and promotions with their male colleagues, and whether those women are equally accepted as leaders within their work environment and in society. Also, formal equality often ignores other obligations that society places on women and not men, such as childcare and household duties that prevent women form committing additional time to their career. As a result, the traditional approach fails to address the systemic and social factors preventing equality.
Another approach to equality is a protectionist approach where laws and policies prevent women from taking part in work or activities seen as harmful to them. While this approach may seem fair, it does not challenge the reasons behind why a particular activity is dangerous for women, or examine how the danger can be removed so that women can fully participate in society. For example, women may be prohibited from working at night because it is not seen as safe for them to be out late at night. Pregnant women may be prohibited from working in shops with slippery floors, in case they fall. The protectionist approach prevents us from questioning why it is not safe for women to be out at night, and working to create a society free from violence. It also does not encourage us to eliminate workplace hazards so that pregnant and non-pregnant workers can be protected from the dangers of slippery floors.
CEDAW requires a substantive approach to gender equality. The goal of a substantive approach is to ensure that the outcomes of laws, policies and programmes are equal for men and women. Thus, we do not merely appoint an equal number of men and women, or block women from working in a particular sector which is socially recognised as dangerous. Rather, we have to make sure that women receive equal access, opportunities and benefits in the positions they are in. This requires us to closely look at seeming differences between men and women. More important is to see the underlying assumptions about those differences, which range from cultural norms to prejudices, mistaken beliefs and political structures. This gender analysis helps us to understand how those assumptions produce and perpetuate disadvantages that prevent women from working on the same footing with men, to map out strategies to correct them, and further to create enabling environments for women’s full exercise of their rights and freedom.
The Principle of Non-DiscriminationCEDAW requires States Parties to ensure that their policies, programmes and activities do not discriminate against women. This means that states must ensure that women are not disadvantaged because they are women, or because they have physical attributes unique to women, such as child bearing, or cultural roles unique to women.
According to CEDAW, discrimination refers to situation where any distinction, exclusion or restriction is made on the ground of sex or the socio-cultural assumptions that women are inferior and inappropriate for certain jobs. For instance, it is against CEDAW that women’s mobility or employment is subject to the permission of their husbands or guardians. Denial of women’s rights to inherit property or to hold a particular post can be another example. Yet, the scope of non-discrimination does not simply stop there. An action or inaction is considered discrimination if it has the effect of impairing or nullifying the recognition, enjoyment or exercise of women’s human rights (indirect discrimination). Let’s take an example of a public childcare and family care system aimed at enhancing women’s participation in the labor market. This seeming equality might perpetuate traditional gender assumptions that women are solely responsible for childcare and other family obligations. While a very positive policy for women, it needs to be accompanied by awareness-raising to change gender stereotypes as well as to increase men’s sharing of family responsibilities.
This principle of non-discrimination covers not only the actions of the governments, but also a wide range of actions of private actors ranging from individuals to families, communities, business corporations and religious institutions in political, social, economic, cultural or any other field.
The Principle of State ObligationAlong with the concepts of equality and non-discrimination, the principle of state obligation is also an integral part that constitutes CEDAW. All States Parties are legally bound to meet their obligations as stipulated in the Convention.
The obligations of States Parties to the Convention are basically two fold. One is the obligation of means. Under the Convention, they have to put forward new laws and policies so that women’s rights can be guaranteed in their national legal frameworks. However, de jure recognition of rights is sometimes not enough for eliminating longstanding discrimination against women and achieving their full enjoyment of rights. To fill this gap between law and practice, CEDAW obligates its States Parties to ensure gender equality in terms of results as well as means. In this sense, Article 4 of the CEDAW Convention recommends States Parties to take special measures to proactively address the persistent discrimination against women and thus allow women to exercise their rights, as guaranteed by national laws and policies, on an equal footing with men. These special measures are known in some countries as “affirmative action” or “positive discrimination” and are further discerned in General Recommendation 25.
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