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16
WOMEN’S RIGHTS
Dianne Otto
SUMMARY
International human rights law prohibits discrimination against women in their enjoyment
of all human rights and fundamental freedoms. While non-discrimination is an essen-
tial component to the realization of women’s rights, its comparative approach measures
women’s equality against men’s enjoyment of rights, reinforcing gender dualism and the
masculinity of the universal subject of human rights law whose rights are fully promoted
and explicitly protected. To the extent that violations experienced exclusively or primarily
by women are expressly recognized in the founding human rights instruments, they are
treated as a sub-category of the universal and often formulated as ‘protective’ measures
rather than as human rights. There have been many eorts to address the resulting margin-
alization of women’s rights, including the adoption of the Convention on the Elimination
of All Forms of Discrimination Against Women and the strategy of gender mainstream-
ing in the application of general human rights instruments. While these eorts have been
successful in many respects, there are continuing conceptual and practical problems,
including, not only the limitations of anti-discrimination law and dualistic conceptions of
gender, but the danger that specific recognition of women’s rights violations may simply
reproduce women’s secondary status. Recent attention to discrimination based on ‘gender
identity’ opens new, although contested, opportunities for feminist change.
1 IntroductIon
In 1945, the UN Charter recognized the principle that human rights and fundamental
freedoms should be enjoyed by everyone ‘without distinction as to . . . sex’. Since then,
international human rights instruments have repeatedly armed that women and men
must equally enjoy the human rights they enumerate, without discrimination on the
ground of sex. e new era of universal human rights promised women, for the rst time
in international law, the full recognition of their humanity, marking a decisive break with
the longstanding legal representation of women as lacking full legal and civil capacity.
1 UN Charter, Art 1(4).
2 See eg Universal Declaration of Human Rights (UDHR), Art 2; International Covenant on Civil and
Political Rights (ICCPR), Arts 2(2) and 3; International Covenant on Economic, Social and Cultural Rights
(ICESCR), Arts 2(1) and 3.
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3 UDHR, Art 16(1). See further ICCPR, Art 23(4).
4 Clark, ‘e Vienna Convention Reservations Regime and the Convention on Discrimination Against
Women’ (1991) 85 AJIL 281; Cook, ‘Reservations to the Convention on the Elimination of All Forms of
Discrimination Against Women’ (1990) 30 Virginia JIL 643. On reservations to human rights treaties
generally, see Chapter 5.
5 International Women’s Day Statement by United Nations Women’s Human Rights Experts, 34th Session
of the Human Rights Council, 7 March 2017.
6 Report of the Special Rapporteur on the promotion and protection of human rights and fundamental
freedoms while countering terrorism, Part III, ‘A gender perspective on countering terrorism’, A/64/211
(3 August 2009) paras 18–53.
7 Razari et al, Gendered Impacts of Globalization—Employment and Social Protection, UNSRID Research
Paper 2012–3 (March 2012).
8 Report of the Special Rapporteur on violence against women, its causes and consequences,
A/HRC/32/42 (19 April 2016) para 5.
9 World Health Organization, ‘Maternal Mortality Fact Sheet’ (updated November 2016).
10 Douzinas, ‘e End(s) of Human Rights’ (2002) 26 Melbourne ULR 445, 457.
Signicantly, the promise of equality also extended to the private realm of the family.
Women were no longer to be treated as the dependants of men, or as the property of their
fathers or husbands.
Yet there has been widespread resistance to taking these obligations seriously, as evi-
denced by the many sweeping reservations to the Convention on the Elimination of All
Forms of Discrimination Against Women (CEDAW). is convention was adopted in
1979 to draw specic attention to the entrenched nature of women’s inequality and the
need for signicant armative measures to address it. Unashamedly, some of the reser-
vations to CEDAW challenge the very idea of women’s equality with men. Further, as
UN women’s human rights experts warned in 2017, in a Statement to the Human Rights
Council on International Women’s Day: ‘Not only is the advancement of women taking a
very long time and full equality far from a global reality, but today women’s hard fought
achievements face the risk of reversal . . . by an alliance of conservative political ideolo-
gies and religious traditionalism’. Hard-won advances towards the recognition of women’s
rights have also been threatened in the name of thwarting international terrorism.
e grim reality is that women fare considerably worse than men on almost every in-
dicator of social well-being, despite the assumption by all states of at least some interna-
tional legal obligations to promote their equal enjoyment of human rights, and despite
many good intentions. Everywhere, despite women’s increasing participation in the work-
force, their average wage is considerably less than that of men and they are concentrated
in precarious work in the formal and informal sectors. Furthermore, many women do
not receive any remuneration for work in family enterprises and have unequal access to
social security assistance. Violence against women and girls continues to be pervasive,
and its prevalence may even be increasing due to new forms created by the Internet and
other communications technology, endangering women’s lives in both public and private
spheres. e World Health Organization estimates that every day 830 women and girls
die of preventable complications related to pregnancy and childbirth. Women’s inequality
is still widely regarded as ‘natural’ and as prescribed by religious teachings and cultural
traditions.
Yet, although lack of political will presents a signicant barrier to the realization of
women’s rights and equality, it is not the only problem. International human rights law it-
self presents some obstacles. As Douzinas has observed, human rights ‘construct humans’,
rather than the reverse, and it follows that ‘[a] human being is someone who can success-
fully claim rights’. is recognition presents a conundrum for women’s human rights
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11 Otto, ‘Lost in Translation: Re-Scripting the Sexed Subject of International Human Rights Law’, in
Orford (ed), International Law and Its Others (CUP, 2006) 318.
12 Charlesworth, ‘Not Waving but Drowning: Gender Mainstreaming and Human Rights in the United
Nations’ (2005) 18 HHRJ 1.
advocates because, in craing laws that respond to the gendered realities of women’s lives,
there is the risk of reconstituting gender stereotypes through reproducing those realities,
rather than challenging them. At the same time, ‘special’ measures designed to address
women’s specic injuries and disadvantage continue to arm the maleness of the universal
subject of human rights law, as men need no special enumeration of their gender-specic
injuries. Charlesworth has called this the ‘paradox of feminism’; whether women’s rights
are best protected through general norms that treat women the same as men, or through
specic norms applicable only to women. Ultimately, the paradox forces us to ask hard
questions about how women’s inclusion as full subjects of the universal regime of human
rights law might be achieved. One such question is whether the recognition of gendered
harms suered by everyone because of their gender identity, including men, women, trans
and other genders, would help to shi the harmful dualistic gender stereotypes that con-
tinue to reside in the idea of the universal human being.
is chapter critically examines the many eorts to achieve women’s full inclusion in
international human rights law. Section 2 describes the treatment of women in inter-
national law prior to the adoption of the UN Charter, in order to highlight the signi-
cance of the subsequent shi to the promotion of women’s equality. e importance of
the non-discrimination approach favoured by the draers of the founding human rights
instruments is recognized, while some of its limitations are highlighted. Section 3 exam-
ines the innovative approach taken in CEDAW, whereby the draers hoped to address the
problems attending the concept of non-discrimination by promoting a strong version of
women’s substantive equality. Yet while CEDAW fostered a better understanding of the
measures that may be necessary to achieve women’s equal enjoyment of human rights, it
also reinforced the marginalization of women’s rights practically and conceptually, and
institutionalized the idea that gender is a duality that always works to women’s disad-
vantage. e other human rights treaty bodies tacitly used the existence of the CEDAW
Committee as an excuse to continue their neglect of women’s rights, and dierent admin-
istrative arrangements helped to ‘ghettoise’ both the CEDAW Committee and its work. To
tackle this marginalization, a new strategy of ‘gender mainstreaming’ was adopted during
the 1990s, which sought to reinterpret mainstream human rights to be inclusive of women’s
experiences. is strategy is examined in Section 4. e chapter concludes, in Section 5, by
drawing attention to some continuing obstacles presented by the law itself, which prevent
women from successfully claiming and enjoying human rights, and suggests that address-
ing the gendered harms experienced by men and other gender identities has the potential
to complement and strengthen eorts to realize women’s equal enjoyment of human rights.
2 A New erA of NoN-DiscrimiNAtioN oN the
GrouND of sex AND equAlity with meN
While the UN Charter was the rst international treaty to promote women’s equality with
men, it was not the rst time that women were constituted as a category in international
law. is section will briey describe how women appeared in earlier international legal
texts before examining how women’s rights were recognized by the foundational human
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rights instruments. While the idea of women’s equality with men was a radical and
visionary development, of great importance to women (and men), this approach failed to
acknowledge the specicity of many human rights violations suered exclusively or pre-
dominantly by women and therefore failed to construct them as fully human.
2.1 the PositioN Prior to 1945
Before 1945, international law had taken a paternalistic or ‘protective’ approach to women,
treating them as the property, extension, or dependants of men, as primarily mothers and
wives, and as incapable of full autonomy and agency. Women were valued for their pre-
marital chastity, their prioritization of motherhood and domesticity, and their acceptance
of the heterosexual family hierarchy and the paternal protection of the state and its laws.
e laws of war, for example, required an occupying power to respect ‘family honour and
rights’, treating women as part of (male) family property and reputation, to be protected by
the l aw. Early international labour conventions prohibited women from certain types of
work, such as night work and mining, on the basis that this interfered with their domestic
and reproductive responsibilities. Anti-tracking conventions made women’s consent
to working in the sex industry irrelevant, thereby treating all sex workers as victims, need-
ing rescue and rehabilitation. None of these conventions constructed women as rights-
bearers. Instead, women were granted ‘protections’, sometimes in the form of ‘privileged’
treatment, because of their socially ascribed secondary status.
2.2 the uDhr AND the iNterNAtioNAl coveNANts
Following the Second World War, the shi from protectionism to universal human rights
promised to recognize women as fully human, for the rst time, by granting them the
same human rights as men. e primary means for achieving women’s equality, adopted
by the draers of the UDHR, was to prohibit discrimination based on sex in the enjoy-
ment of universal rights and freedoms which, notably, does not single women out as the
disadvantaged gender group. e decision not to recognize rights that were specic to
women’s experiences was deliberately made on the basis that this would compromise the
idea of the ‘universality’ of rights and wrongly emphasize women’s dierence from men
rather than their common humanity.
13 Hevener, ‘International Law and the Status of Women: An Analysis of International Legal Instruments
Related to the Treatment of Women’ (1978) 1 Harvard Women’s LJ 131, 133–40.
14 See Convention Respecting the Laws and Customs of War on Land 1899 (Hague Convention II), Art 46;
and Convention Respecting the Laws and Customs of War on Land 1907 (Hague Convention IV), Art 46.
15 eg International Labour Organization, Maternity Protection Convention 1919 (Convention 3);
International Labour Organization, Convention Concerning Night Work of Women Employed in Industry
1919 (Convention 4); International Labour Organization, Convention Concerning the Employment of
Women on Underground Work in Mines of All Kinds 1935 (Convention 45).
16 International Agreement for the Suppression of the White Slave Trac 1904; International Convention
for the Suppression of White Slave Trac 1910; International Convention for the Suppression of the Trac
in Women and Children 1921; Convention for the Suppression of the Trac in Women of Full Age 1933. See
further, Doezema, ‘Loose Women or Lost Women? e Re-Emergence of the Myth of White Slavery in the
Contemporary Discourses of Tracking in Women’ (2000) 18 Gender Issues 23, 24.
17 UDHR, Art 2. is type of non-discrimination provision is described as a ‘subordinate norm’ because it
prohibits discrimination only with respect to the rights and freedoms set out in the instrument.
18 Morsink, ‘Women’s Rights in the Universal Declaration’ (1991) 13 HRQ 229. For a critical analysis see
Bequaert Holmes, ‘A Feminist Analysis of the Universal Declaration of Human Rights’ in Gould (ed), Beyond
Dominance: New Perspectives on Women and Philosophy (Rowman & Allanheld, 1983) 250.
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19 ICESCR, Art 2(2); ICCPR, Art 2(1). 20 See Chapter 8.
21 UDHR, Art 16(1); ICCPR, Art 23(4).
22 Romany, ‘State Responsibility Goes Private: A Feminist Critique of the Public/Private Distinction
in International Human Rights Law’ in Cook (ed), Human Rights of Women: National and International
Perspectives (University of Pennsylvania Press, 1994) 85.
23 UDHR, Arts 12 and 16(3); ICCPR, Arts 17(1) and 23(1).
24 Oloka-Onyango and Tamale, ‘ “e Personal is Political” or Why Women’s Rights are Indeed Human
Rights: An African Perspective on International Feminism’ (1995) 17 HRQ 691, 702.
In transforming the UDHR into legally binding instruments, the International Covenant
on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on
Civil and Political Rights (ICCPR) followed suit, relying largely on the prohibition of sex
discrimination in the enjoyment of the rights they enumerated to achieve women’s equal-
it y. As the Covenants did not dene ‘discrimination’ or ‘equality’, many states parties
interpreted their obligations narrowly, to require formal, but not substantive, equality.
However, an additional provision was included as Article 3 common to both Covenants,
which required states parties to ensure ‘the equal right of men and women to the enjoy-
ment of all . . . [rights] set forth in the present Covenant’, indicating that particular atten-
tion must be paid to achieving gender equality and, by the use of the term ‘enjoyment’,
signifying that substantive equality was the goal, although states parties were slow to em-
brace this interpretation.
e obligation to ensure that women equally enjoy the same rights as men was a very
signicant step forward for women. States parties are required to treat women and men
alike when they are in a comparable situation. ink, for example, of the importance to
women of the universal franchise, the freedom to move and to express their opinions to
the same extent as men, of equal pay, and access to education on the same basis as men.
In addition, the unprecedented acknowledgement that women and men ‘are entitled to
equal rights as to marriage, during marriage and at its dissolution’, broke through the
tradition in liberal legal thinking that exempted the private sphere from legal scrutiny.
is provision opened the way for challenging the public–private dichotomy that has kept
human rights violations experienced by women in the ‘private’ realm of the family hidden
and delivered impunity to perpetrators. However, as would soon become apparent, this
development was in tension with states’ responsibilities to protect the institution of the
family and the right to privacy as also set out in the UDHR and ICCPR. For ird World
women in particular, the issue of private actors violating their rights is not only a concern
within their extended family networks, but also an issue of the unregulated activities of
global private actors, such as transnational corporations and banks. Many global eco-
nomic actors exploit local resources and labour, with highly gendered eects, compound-
ing the diculties that poor states have in complying with their human rights obligations.
Yet the ‘private’ conduct of the marketplace is not directly regulated by human rights law.
Despite these shortcomings, the prohibition of sex discrimination le little doubt that
the dierences between women and men, which had previously been treated as immutable
and used to justify women’s inequality, were to be understood as socially constructed and
therefore amenable to change. us international human rights law had the potential to
challenge the ‘naturalness’ of discriminatory beliefs and gendered practices, and to assist
in the task of changing harmful stereotypes of both ‘women’ and ‘men’, as well as other
gender identities.
While ground-breaking in many respects, the preferred method of realizing women’s full
legal subjectivity by promoting their equal and non-discriminatory enjoyment of human
rights soon proved to be problematic, both conceptually and in practice. Conceptually,
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non-discrimination was interpreted as a formal (de jure) rather than substantive (de facto)
obligation, despite common Article 3 in the Covenants. Treating women in the same way
as men works well when women’s and men’s experiences of human rights violations are
directly comparable, as in the rst communication concerning sex discrimination con-
sidered by the Human Rights Committee. e communication was brought by a group of
Mauritian women, complaining that legislation discriminated against women because it
granted automatic residency to the foreign wives of Mauritian men but denied automatic
residency to the foreign husbands of Mauritian women. On these facts, the Human
Rights Committee easily found that the legislation made an ‘adverse distinction based on
sex’ because it negatively aected married women’s enjoyment of ICCPR rights related to
privacy and family life, as compared to married men.
However, a comparison with the rights that men enjoy does not help in situations
where women’s experiences are substantially dierent from men’s, as in the case of work.
Rights recognized by the ICESCR that protect the right to work assume a male model
of formal employment, which makes women’s unremunerated work in the family and
their poorly remunerated work in the informal sector invisible. is approach also
fails to take account of women’s oen interrupted patterns of paid work, the problem of
gender segregation in the workforce, and the need for maternity leave, childcare provi-
sion, and a radical change in the distribution of domestic and caring responsibilities.
A further problem with the comparative approach of equality and non-discrimination
is that, when the Covenants do explicitly refer to women’s dierent experience, inter-
national law’s discursive heritage of treating women protectively tends to re-emerge,
as in the requirement that states parties ensure ‘special protection’ (rather than rights)
for mothers for a period before and aer childbirth. e result is that when women
are included in the Covenants by reference to the gendered specicities of their lives,
they are treated as needing ‘special’ treatment. is approach constructs women’s expe-
rience as non-universal and has the eect of buttressing the masculinity of the univer-
sal subject. e ICESCR also describes the right of everyone to an adequate standard
of living ‘for himself [sic] and his family’, breathing life into the erroneous stereo-
type that all women are dependent on male household breadwinners, although the
Committee on Economic, Social and Cultural Rights has since strongly repudiated this
interpretation.
In practice, drawing formal comparisons between women and men proved to be a lim-
ited means of promoting women’s substantive equality. e narrow focus of a comparison
does not take account of the need to redress the institutionalized history of discrimination
and disadvantage that oen aects women’s ability to exercise their rights in the same way
as men, for example by ensuring they have the information, autonomy, and freedom of
movement to exercise their right to vote. A formal comparison also ignores the need to
create enabling circumstances that will make women’s equal enjoyment of rights possible,
which may involve changing deeply embedded social and cultural attitudes that stigmatize
or punish women for exercising their rights.
e limitations of relying on the prohibition of sex discrimination to do all the work of
ensuring that women fully enjoy universal human rights and fundamental freedoms was
25 Aumeeruddy-Czira et al. v Mauritius, CCPR/C/12/D/35/1978 (9 April 1981).
26 Aumeeruddy-Czira, paras 9.2(b)2(i)8 and 9.2(b)2(ii)4.
27 ICESCR, Arts 6, 7, and 8. See further, Promoting Women’s Enjoyment of their Economic and Social
Rights: Expert Group Meeting, EGM/WESR/1997/Report (1–4 December 1997) paras 46–8.
28 ICESCR, Art 10(2). 29 ICESCR, Art 11(1).
30 CESCR, General Comment 4, HRI/GEN/1/Rev.9 (Vol I) 11, para 6.
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31 Petersen, ‘Whose Rights? A Critique of the “Givens” in Human Rights Discourse’ (1990) 15 Alternatives 303.
soon apparent. In addition to interpreting equality as a formal rather than substantive
obligation, women’s human rights violations were rarely addressed by human rights treaty
bodies in the early years of their operation. is was because the comparative standard of
non-discrimination did not force them to rethink their own gendered frameworks, and
human rights NGOs were preoccupied with addressing Cold War violations experienced
by men in the public sphere, such as the freedom of political expression and the release
of political prisoners, which blinded them to what was happening to women, even where
they too were political prisoners.
3 the substANtive equAlity
APProAch of ceDAw
Growing dissatisfaction with women’s marginalization within the general framework and
implementation of international human rights law led to the adoption of CEDAW by the
UN General Assembly in 1979. Although CEDAW takes the same general approach as the
Covenants by promoting non-discrimination, it is concerned specically with discrimina-
tion against women and the promotion of women’s equality with men, advancing a strong
form of women’s substantive equality as the international norm. is section discusses
the positive features of the approach taken by CEDAW and then examines some of its
limitations. It begins with a discussion of three strategies adopted by CEDAW to promote
a robust understanding of women’s equality: the adoption of a comprehensive denition
of discrimination against women; the promotion of the use of temporary and permanent
‘special measures’; and the requirement that states parties tackle the causes of women’s
inequality by promoting social change relating to both women and men in all spheres of
life, including in families.
3.1 towArDs A robust uNDerstANDiNG of equAlity
e rst step towards advancing women’s substantive equality is the provision of a com-
prehensive denition of ‘discrimination against women’ in Article 1 CEDAW:
[it] shall mean any distinction, exclusion or restriction made on the basis of sex which has
the eect 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 eld.
is denition covers a wide range of conduct and, importantly, prohibits discriminatory
treatment (direct discrimination) as well as discriminatory outcome (indirect discrimina-
tion), and intended (purposive) discrimination as well as unintended discrimination (dis-
crimination in eect). Both ‘sex’ and ‘marital status’ are specied as prohibited grounds
of discrimination against women, and it should further be noted that other provisions in
CEDAW (for example Article 11(2) in the eld of employment) also prohibit discrimina-
tion on the grounds of ‘pregnancy’ and ‘maternity’.
e denition specically promotes substantive equality by requiring that women must
be able to ‘enjoy’ or ‘exercise’ their human rights and fundamental freedoms, and makes
it clear that the prohibition of discrimination against women applies to all elds of life,
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not only the public sphere. Indeed, the application of CEDAW to private actors, includ-
ing individuals and organizations, is made explicit in many instances in the text. e
CEDAW Committee, which monitors its implementation, has specied that states parties
have the obligation to act with ‘due diligence’ to ensure that private actors do not violate
the Convention. e Committee has also claried many of the other obligations required
by its substantive approach to women’s equality in its interpretations of CEDAW, help-
ing to constitute a more gender-inclusive subject of human rights law. For example, the
Committee has urged states parties to adopt criteria in the determination of equal pay that
facilitate the comparison of the value of the work usually done by women with the value of
those more highly paid jobs usually done by men, and to implement health measures that
address ‘the distinctive features and factors that dier for women in comparison with men’.
e second way that CEDAW promotes women’s substantive equality is by making it clear
that non-identical treatment aimed at addressing women’s specic experiences of disadvan-
tage may be necessary to achieve women’s equality. CEDAW distinguishes between tempo-
rary and permanent measures. Article 4(1) promotes the use of ‘special temporary measures’
(also known as ‘armative action’, ‘positive action’, or ‘reverse discrimination’), which are
directed towards ‘accelerating de facto equality between women and men’ by remedying the
eects of past or present discrimination against women and promoting the structural, social,
and cultural changes necessary to support the realization of women’s substantive equality.
Such discriminatory measures are not prohibited, as long as they do not entail ‘the main-
tenance of unequal or separate standards’ for women and men and are discontinued when
their objectives have been achieved. us ‘temporary’ measures may result in the application
of the measures for a sustained period of time, until their objectives have been realized.
Some specic references to temporary special measures can be found in CEDAW’s substan-
tive provisions, such as measures in the eld of education that increase women’s functional
literacy (Article 10(c)) and reduce the drop-out rates of female students (Article 10(f)). On
many occasions the CEDAW Committee has advocated special temporary measures, such
as the adoption of quotas to promote gender balance in political bodies.
CEDAW also supports permanent ‘special measures’ to ensure that non-identical treat-
ment of women, due to their biological dierences from men, is not considered discrimi-
natory and does not work to their disadvantage. Article 4(2) makes it clear that measures
‘aimed at protecting maternity’ are not discriminatory, and this point is reinforced by
other more specic provisions including measures safeguarding women’s reproduc-
tive capacities in the eld of employment (Article 11(1)(f)) and measures that provide
women with ‘appropriate’ reproductive health services (Article 12(2)). Recognizing that
these provisions have a ‘protective’ orientation, the CEDAW Committee has empha-
sized that the term ‘special’, when used in the context of CEDAW, breaks with the past
paternalistic usage of the term to indicate that a group suering discrimination is weak
or vulnerable, and refers instead to measures designed to serve a specic human rights
goal. However, in practice, avoiding protective responses to women’s specicities is a
continuing challenge.
32 eg CEDAW, Arts 2(e), 2(f), 3, 5, and 6.
33 CEDAW Committee, General Recommendation 19, HRI/GEN/1/Rev.9 (Vol II) 331, para 9.
34 CEDAW Committee, General Recommendation 13, HRI/GEN/1/Rev.9 (Vol II) 325, para 2.
35 CEDAW Committee, General Recommendation 24, HRI/GEN/1/Rev.9 (Vol II) 358, para 12.
36 See further CEDAW Committee, General Recommendation 25, HRI/GEN/1/Rev.9 (Vol II) 365.
37 General Recommendation 25, para 20.
38 CEDAW Committee, General Recommendation 23, HRI/GEN/1/Rev.9 (Vol II) 347, para 29.
39 General Recommendation 25, para 21.
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40 Nyamu-Musembi, ‘Are Local Norms and Practices Fences or Pathways? e Example of Women’s
Property Rights’ in An-Na’im (ed), Cultural Transformation and Human Rights in Africa (Zed Books, 2002)
126; Obiora, ‘Feminism, Globalization, and Culture: Aer Beijing’ (1997) 4 Glob Legal Stud J 355.
41 Roseman and Miller, ‘Normalizing Sex and its Discontents: Establishing Sexual Rights in International
Law’ (2011) 34 Harvard J L & Gender 313, 353; Otto, ‘Between Pleasure and Danger: Lesbian Human Rights’
[2014] EHRLR 618, 626.
42 Otto, ‘Queering Gender [Identity] in International Law’ (2015) 33 NJHR 299, 307.
43 Holtmaat, ‘e CEDAW: a Holistic Approach to Women’s Equality and Freedom’, in Hellum and Aasen
(eds), Women’s Human Rights: CEDAW in International, Regional and National Law (CUP, 2013) 95, 115–6.
e third way that CEDAW promotes women’s substantive equality is by requiring
that states parties address the underlying causes of women’s inequality. As mentioned,
religious teachings and cultural practices have oen been (mis)used to reinforce dom-
inant beliefs about women’s secondary status, generating systemic discrimination
against women, which may be perceived as ‘natural’. To tackle systemic discrimination,
Article 5(a) requires states parties to work towards ‘the elimination of prejudices and cus-
tomary and all other practices which are based on the idea of the inferiority or the superi-
ority of either of the sexes or on stereotyped roles for men and women’. is obligation is
echoed in other provisions, such as the requirement that gender stereotypes be removed
from school programmes and textbooks (Article 10(c)) and the deeming of legal instru-
ments to be null and void if they restrict the legal capacity of women (Article 15(3)).
Article 5(b) builds further on states parties’ social change obligations by requiring that
they promote change in sex-stereotyped attitudes and practices in families, including by
‘recognition of the common responsibility [of women and men] in the upbringing and
development of their children’. Some specic aspects of this obligation are also spelled out
in other provisions, such as the requirement to establish a network of childcare services
‘to enable parents to combine family obligations with work responsibilities and partici-
pation in public life’ (Article 11(2)(c)), and access to ‘information and advice on family
planning’ that will help to ensure the health and well-being of families (Article 10(h)).
Unfortunately, CEDAW takes a consistently negative view of social, religious, and cul-
tural traditions, yet it must be remembered that they can also lend valuable support to
realizing women’s equality.
3.2 limitAtioNs of the ceDAw APProAch
e approach taken by CEDAW also has some limitations, four of which will be high-
lighted: its dualistic conception of gender and associated reliance on a comparison with
men; the lack of reference to violence against women; its assumption of normative mar-
ried heterosexuality; and the very limited acknowledgement of multiple and intersec-
tional forms of discrimination. e CEDAW Committee has ameliorated many of these
problems by treating CEDAW as a dynamic instrument that must be read in light of
changing circumstances, and progressively interpreting its provisions in Concluding
Observations to states parties’ periodic reports and in General Recommendations.
However, it is dicult for these eorts to completely overcome the limitations in the
CEDAW text without supporting interpretations from other human rights bodies and
good faith implementation by states parties. Also, the Committee has been cautious in
addressing lesbian issues and almost completely silent about transgendered discrimina-
tion, despite the obligation to modify gender stereotypes and xed parental roles which
should enable it to support everyone’s right to express their gender identity in the way
they choose.
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44 African Protocol, Art 14(1).
45 An exception to this rule is CEDAW, Art 14 concerning ‘rural women’.
46 Declaration on the Elimination of Violence Against Women, GA Res 48/104, 20 December 1993.
47 Commission on Human Rights Res 1994/45, 4 March 1994, Chap XI, E/CN.4/1994/132. See
further: <http://www.ohchr.org/EN/Issues/Women/SRWomen/Pages/SRWomenIndex.aspx>.
48 General Recommendation 19, paras 1 and 6.
e rst limitation is that CEDAW relies fundamentally on a comparison between
women and men. is is problematic for at least two reasons. First, it does not allow women
to claim rights that men do not enjoy, except as ‘special measures’. Consider the example of
access to information, advice, and services related to family planning (Articles 10(h) and
12(1)) and the right to ‘decide freely and responsibly [sic] on the number and spacing of
their children’ (Article 16(1)(e)), which are all to be enjoyed ‘on a basis of equality of men
and women’. is leaves little room, if any, for the recognition of women’s specic, stand-
alone reproductive rights, including abortion rights, unless they qualify as ‘measures pro-
tecting maternity’ (Article 4(2)). By contrast, the 2003 Protocol on the Rights of Women in
Africa (African Protocol) recognizes women’s autonomous right to sexual and reproduc-
tive health, including the right to control their own fertility, to decide on the number and
spacing of children, to choose any method of contraception, and to have family planning
education.
CEDAW’s primary reliance on comparing women with similarly situated men is also
problematic because it does not recognize gender identities that do not conform to the
duality of male/female and does not address discrimination between dierent groups of
women. For example, denying unmarried women access to reproductive technologies
that are available to married women is prohibited by CEDAW only if unmarried men
(the relevant comparator) are able to access the technology. e comparison does not
adequately recognize women’s interests because men have very dierent needs for repro-
ductive assistance, and it renders lesbians and transwomen invisible. Only if the compara-
tor is a married woman, can unmarried women (including single women and women in
de facto lesbian relationships) claim discrimination on the basis of marital status. e
reproductive rights of transwomen, transmen (especially if they are able to conceive), and
other gender identities remains unclear, whether married or not.
A second limitation of CEDAW is its lack of reference to violence against women. is is a
silence that can be explained by the reliance on a comparative model, because gendered vio-
lence does not aect men in the same way as women (which is not to deny that men may also
experience gendered violence). e failure in CEDAW to make specic reference to rights
associated with security of the person suggests that, at the time of draing, the prevalence of
violence against women, especially in the private sphere, was unknown or simply accepted
as the norm. Much has changed since then. e General Assembly adopted the Declaration
on the Elimination of Violence Against Women in 1993, recognizing that gendered vio-
lence is ‘one of the crucial social mechanisms by which women are forced into a subor-
dinate position compared with men’. In 1994, the Commission on Human Rights (now
the Human Rights Council) established the mandate of the Special Rapporteur on violence
against women, its causes and consequences, which continues today. In 1992, the CEDAW
Committee pre-empted these developments by adopting General Recommendation 19,
which interpreted gender-based violence as a form of ‘discrimination against women’ that is
prohibited by CEDAW. us, violence ‘directed against a woman because she is a woman or
that aects women disproportionately’ breaches specic CEDAW provisions, even though
the provisions do not expressly make reference to violence. is approach has been applied
in the jurisprudence of the CEDAW Committee under its Optional Protocol procedure,
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49 AT v Hungary, A/60/38, Annex III (26 January 2005); Goekce v Austria, CEDAW/C/39/D/5/2005
(6 August 2007); Yildrim v Austria, CEDAW/C/39/D/6/2005 (1 October 2007); VK v Bulgaria, CEDAW/
C/49/D/20/2008 (27 September 2011); Jallow v Bulgaria, CEDAW/C/52/D/32/2011 (28 August 2012).
50 Inter-American Convention, Art 1. 51 Inter-American Convention, Art 7(b).
52 African Protocol, Art 1(j) (emphases added). 53 African Protocol, Art 3(4).
54 African Protocol, Art 4. 55 African Protocol, Art 5(d).
56 African Protocol, Arts 11(3), 22(b), and 23(b).
57 Council of Europe Convention, Arts 6, 12(6), and 18(3).
58 See eg CEDAW Committee, General Recommendation 21, HRI/GEN/1/Rev.9 (Vol II) 337, para 22.
59 General Recommendation 21, paras 13, 18, 29, 33, and 39.
which has found violations of states obligations to eliminate discrimination against women
in family relations (Article 16) where states parties have not acted positively, with due dili-
gence, to protect complainants from domestic violence.
Addressing violence against women as a human rights violation has been further ex-
pounded in three regional human rights instruments. e rst, the 1994 Inter-American
Convention on the Prevention, Punishment and Eradication of Violence Against Women
(Inter-American Convention) denes violence against women broadly as ‘any act or con-
duct, based on gender, which causes death or physical, sexual or psychological harm or suf-
fering to women, whether in the public or the private sphere’. Importantly, this denition
does not conne violence against women to a form of sex discrimination, but recognizes
that it may constitute a human rights violation in itself, without the need for a male compar-
ator. States parties must adopt a wide range of positive measures to eliminate such violence,
including by applying ‘due diligence’ to ‘prevent, investigate and impose penalties’. e
African Protocol develops the denition of violence against women further by including acts
which ‘cause or could cause [women] physical, sexual, psychological, and economic harm’,
threats, and all such acts during armed conict. Violence against women is specically rec-
ognized as a violation of the right to dignity, the rights to life, integrity, and security of the
person, and the right to be protected from harmful practices. e particular vulnerability
of asylum-seeking and internally displaced women, and elderly and disabled women, is also
acknowledged. e third regional instrument is the Council of Europe’s Convention on
Preventing and Combating Violence Against Women and Domestic Violence 2011, which
identies women’s empowerment and economic independence among its aims, reecting
a conscious eort to counter protective responses. ese regional developments update
CEDAW obligations, overcoming some of their textual limitations.
A third limitation of CEDAW is that, like the Covenants, women’s experience of
‘family life’ is assumed to be married and heterosexual (Article 16(1)) except when
it comes to rights as a parent in matters relating to children, which are to be enjoyed
regardless of marital status (Article 16(1)(d)). One result of the emphasis on ‘marriage’
and the equal rights of ‘spouses’ is that the diversity of family forms within which
women live, including customary and de facto heterosexual and same-sex partner-
ships, is rendered invisible. Consequently, the text ignores human rights violations that
take place within dierent family formations, like the unequal sharing of income and
assets in a customary marriage or violence in a lesbian relationship, and fails to pro-
tect women’s equal rights when a non-marital relationship breaks down. e CEDAW
Committee has gone some way towards rectifying this problem by acknowledging that
various forms of the family exist by using the terminology of ‘spouse or partner’, and
by insisting that women and men be treated equally in families, whatever form they
take. However, the Committee has never engaged proactively with issues of same-sex
partnerships or families, and has only made reference to them on the rare occasions
that states parties themselves have provided information about developments in their
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periodic reports. Another repercussion of CEDAW’s normative focus on heterosex-
ual marriage is that women’s sexuality is reduced to issues of procreation, with refer-
ence to family planning and the spacing of children. This means that CEDAW also
fails to address the discrimination that many women face for expressing their sexuality
outside marriage, whether in committed relationships, in pursuit of sexual pleasure, as
lovers of other women, or as sex workers.
e fourth limitation is that CEDAW largely treats ‘women’ as a homogeneous group
who share the same experience of discrimination. Yet sex discrimination can intersect with
other forms of discrimination and create experiences of discrimination that are not fully
comprehended by the concept of sex discrimination. is has been called ‘compound’ or
‘intersectional’ discrimination, and its most extreme forms are experienced by the most
disadvantaged groups of women. While CEDAW acknowledges some limited dierences
between women, on the basis of maternity for example, and age in respect of child mar-
riage, there is only one signicant exception to the general pattern of assumed homogeneity.
Article 14 requires that states parties ‘take into account the specic problems faced by rural
women and the signicant roles which rural women play in the economic survival of their
families’, and many of the rights it goes on to enumerate do not rely on a comparison with
men. is usefully enables the CEDAW Committee to draw comparisons between rural
and urban women, and the Committee has interpreted ‘rural’ very broadly in many of its
Concluding Observations in order to discuss intersectional forms of discrimination faced
by women, on the basis of age, ethnicity, caste, and indigeneity. e CEDAW Committee
has also drawn attention to ‘multiple’ or ‘double’ discrimination faced by specic groups of
women in the context of Article 5(a), which requires modication of social and cultural
attitudes and practices that are inconsistent with women’s equality. Further, a number of
General Recommendations emphasize CEDAW’s application to specic groups of women,
and others have stressed that special attention must be paid to the needs of women be-
longing to ‘vulnerable’ and ‘disadvantaged’ groups. In a very positive development, the
CEDAW Committee has started to draw attention to intersectional discrimination in its
jurisprudence under the Optional Protocol, aer failing to acknowledge intersectionality
in four of its rst ve cases which concerned immigrant or minority women.
As with violence against women, the more recent regional women’s rights instruments
ll some of the gaps in CEDAW. e Inter-American Convention requires states parties
60 See, eg, Concluding Observations on Chile, CEDAW/C/CHL/CO/5–6 (12 November 2012) para 46,
where it is ‘noted’ that ‘a bill on de facto unions, which includes same-sex relationships, is before the Senate’.
61 Crenshaw, ‘Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Anti-
Discrimination Doctrine, Feminist eory and Antiracist Politics’ [1989] U Chi LF 139.
62 ere is also a reference to ‘rural women’ in CEDAW, Art 10(a) about vocational guidance and access to
studies.
63 See eg India, A/54/38 (1 February 2000) paras 51–3; China, A/54/38 (3 February 1999) para 294.
64 See eg Sweden, A/56/38 (31 July 2001) para 356.
65 eg CEDAW Committee, General Recommendation 18, HRI/GEN/1/Rev.9 (Vol II) 330 (disabled
women); General Recommendation 26, CEDAW/C/2009/WP.1/R (5 December 2008) (women migrant
workers); General Recommendation 27, CEDAW/C/GC/27 (16 December 2010) (older women); and
General Recommendation 34, CEDAW/C/GC/34 (7 March 2016) (rural women).
66 CEDAW Committee, General Recommendation 24, HRI/GEN/1/Rev.9 (Vol II) 358, para 6 (health
needs of refugee and internally displaced women, women with physical or mental disabilities, amongst
others).
67 See Teixeira v Brazil, CEDAW/C/49/D/17/2008 (27 September 2011) para 7.7; Kell v Canada, CEDAW/
C/51/D/19/2008 (27 April 2012) para 10.2.
68 See Nguyen v e Netherlands, A/61/38 (14 August 2006) Annex VIII; Szijjarto v Hungary, A/61/36
(14 August 2006) Annex VIII; Goekce; Yildrim.
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69 Inter-American Convention, Art 9. 70 African Protocol, Art 20.
71 African Protocol, Art 24.
72 Dairiam, ‘From Global to Local: e Involvement of NGOs’ in Schopp-Schilling (ed), e Circle of
Empowerment: Twenty-Five Years of the UN Committee on the Elimination of Discrimination Against Women
(Feminist Press, 2007) 313.
73 Byrnes, ‘e “Other” Human Rights Treaty Body: e Work of the Committee on the Elimination of
Discrimination Against Women’ (1989) 14 YJIL 1; Reanda, ‘Human Rights and Women’s Wrongs: the United
Nations Approach’ (1981) 3 HRQ 11.
74 Bunch, ‘Women’s Rights as Human Rights: Towards a Re-Vision of Human Rights’ (1990) 12 HRQ 486;
Kouvo, Making Just Rights? Mainstreaming Women’s Human Rights and a Gender Perspective (Iustus Forlag, 2004).
75 Report of the Sixth Meeting of Persons Chairing the Human Rights Treaty Bodies, A/50/505 (4 October
1995) para 34(a)–(f).
to adopt measures that take ‘special account’ of women whose vulnerability to violence
is compounded by such factors as their ‘race or ethnic background’, their ‘status as migrants,
refugees or displaced persons . . . while pregnant or . . . disabled, of minor age, elderly, socio-
economically disadvantaged, aected by armed conict or deprived of their freedom’. e
African Protocol has provisions that address the rights of asylum-seeking and internally
displaced women, elderly women, and women with disabilities, and also recognizes spe-
cic rights that must be enjoyed by widows and ‘women in distress’, which includes poor
women, women heads of families, pregnant or nursing women, and women in detention.
Both instruments recognize women’s diversity more fully than CEDAW, and draw attention
to the need to address the compound eects of multiple forms of discrimination.
ere is little doubt that the almost universal ratication of CEDAW, the work of the
CEDAW Committee, and the eorts of many women’s rights and human rights NGOs
have advanced the project of making international human rights law more gender inclu-
sive. However, the adoption of a specialist women’s rights treaty also, in many respects,
reinforced women’s marginalization. e high number of reservations to CEDAW, par-
ticularly those that defeat its object and purpose, undermines the idea that women’s rights
are as universal as ‘men’s’. Rather than prompting the other human rights treaty commit-
tees to take women’s rights more seriously, the existence of CEDAW tended to have the
opposite eect of reinforcing their marginalization. While a specic convention focusing
on women’s equality was necessary to address women’s marginalization in international
human rights law, it was plainly not sucient.
4 mAiNstreAmiNG womeN’s humAN riGhts
Another major eort to advance the prospects of women successfully claiming t heir human
rights sought to refocus attention on the general human rights instruments by promoting
‘gender mainstreaming’. e strategy was adopted by the 1993 Vienna World Conference
on Human Rights and rearmed by the 1995 Beijing World Conference on Women. ese
developments prompted the chairpersons of the human rights treaty bodies to commit to
fully integrating gender perspectives into their working methods. is led eventually to
the adoption of General Comments by four treaty bodies, which aim to comprehensively
incorporate women’s experience of human rights violations into the coverage of their re-
spective treaty texts. is section examines each of these General Comments, noting the
diversity of thinking about how to achieve gender mainstreaming that emerges. It also
highlights the tenacity of protective representations of women, especially in the context of
addressing gendered violence, and concludes that women are not yet constructed as fully
human by international human rights law.
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4.1 re-imAGiNiNG the uNiversAl subject: the APProAch
of the humAN riGhts committee
e Human Rights Committee led the way in 2000 with the adoption of General
Comment 28 on equality between men and women. e General Comment works
through each of the ICCPR rights, bringing women-specic violations into the main-
stream by re-imagining the subject of the ICCPR as a woman. For example, it is recog-
nized that the right to life (Article 6) may be violated if women have no option but to
resort to backyard abortions or if they are living in extreme poverty, and the right to
be free from torture and other cruel, inhuman, and degrading treatment (Article 7) may
be violated if a state party fails to protect women from domestic violence. e General
Comment clearly promotes women’s equality as a substantive concept and accepts that
dierent treatment of women and men may be necessary to achieve equality. e result is
an ambitious and creative ‘feminization’ of ICCPR rights.
However, some of the problems associated with seeking to include women by reference
to their ‘dierence’ are also evident. e extensive cataloguing of women’s specic inju-
ries and disadvantages, particularly the emphasis on violence, invites protective responses.
Indeed, the frequent use of the language of ‘protection’ is disquieting. It revives the his-
torically conditioned tendency to slide into protective measures when thinking about
women as ‘victims’ of gendered and sexual violence, working against legal responses that
empower women as full legal subjects. is tendency is compounded by the failure of the
General Comment to identify any gendered human rights abuses that may be specic to
men, such as military conscription.
4.2 ANAlysiNG the relAtioNshiP betweeN GeNDer AND
rAciAl DiscrimiNAtioN: the APProAch of the committee
oN the elimiNAtioN of rAciAl DiscrimiNAtioN
e Committee on the Elimination of Racial Discrimination, which monitors implementa-
tion of the Internationa l Convent ion on the Elimination of All Forms of Racial Discrimination
(ICERD), was initially resistant to the idea of gender mainstreaming. Aer intensive lob-
bying by women’s groups, the Committee changed its mind and General Recommendation
XXV on the ‘gender-related dimensions of racial discrimination’ was adopted in 2000.
In contrast to the Human Rights Committee’s approach, which identied the gender is-
sues associated with each of the substantive rights recognized by the ICCPR, the ICERD
Committee elaborates a methodology for analysing the relationship between gender and ra-
cial discrimination, with the aim of developing ‘a more systematic and consistent approach’,
in conjunction with states parties. e method requires particular consideration of gender
in: (1) the form and manifestation of racial discrimination; (2) the circumstances in which it
occurs; (3) its consequences; and (4) the availability and accessibility of remedies.
76 HRC, General Comment 28, HRI/GEN/1/Rev.9 (Vol I) 228.
77 HRC, General Comment 28, para 10. 78 HRC, General Comment 28, para 11.
79 See further, Otto, ‘ “Gender Comment”: Why Does the UN Committee on Economic, Social and
Cultural Rights Need a General Comment on Women?’ (2002) 14 Can J Women & L 1.
80 HRC, General Comment 28, paras 8, 10, 11, 12, 16, and 22.
81 Crooms, ‘Indivisible Rights and Intersectional Identities or, “What Do Women’s Human Rights Have to
Do with the Race Convention?” ’ (1997) 40 Howard LJ 619; Gallagher, ‘Ending Marginalisation: Strategies for
Incorporating Women into the UN Human Rights System’ (1997) 19 HRQ 283.
82 CERD, General Recommendation XXV, HRI/GEN/1/Rev.9 (Vol II) 287.
83 CERD, General Recommendation XXV, para 3. 84 CERD, General Recommendation XXV, para 5.
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is approach opens the way to a deeper understanding of the structural dimensions of
the intersection of race and gender discrimination and how they work together to intensify
women’s inequality. e methodology is very exible, allowing for diverse and shiing con-
ceptions of race, which, like gender, is understood as socially constructed. However, similar
to General Comment 28, the few examples of intersectional discrimination provided are
concerned with addressing violence against women, which also runs the risk of eliciting
protective responses. While General Recommendation XXV is notable for its use of the lan-
guage of ‘gender’ rather than ‘women’, it is not at all clear that it is intended to recognize that
men, as well as women, may suer from discrimination in which race and gender intersect.
4.3 ADDressiNG the iNequAlity of both womeN AND
meN: the APProAch of the committee oN ecoNomic,
sociAl AND culturAl riGhts
A fuller conception of ‘gender’ mainstreaming is evident in General Comment 16, adopted
in 2005 by the Committee on Economic, Social and Cultural Rights. e approach taken
is similar to General Comment 28 of the Human Rights Committee in the attention given
to identifying the gender dimensions of each of the rights enumerated in the ICESCR
and the emphasis on addressing gendered violence. However, its distinctiveness lies in its
identication of men, as well as women, as potentially suering sex discrimination and
inequality in the enjoyment of ICESCR rights. For example, with respect to the right to so-
cial security, states parties are expected to guarantee ‘adequate maternity leave for women,
paternity leave for men, and parental leave for both men and women’. General Comment
16 also recognizes that victims of domestic violence are ‘primarily women’, thereby ac-
knowledging that men too may be victims. is position would be highly controversial
if it was used as a means to deny the general reality of women’s inequality vis-à-vis men.
However, it has the potential to support a radical move towards recognizing men’s gen-
dered human rights abuses, as well as women’s, which would help to eliminate protective
approaches to women and underline the importance of changing the way ‘men’ are stereo-
typed in the process of realizing ‘women’s’ equality.
4.4 recoGNiziNG GeNDer As A Key fActor: the APProAch
of the committee AGAiNst torture
In 2008, the Committee against Torture adopted a General Comment on implementa-
tion obligations, which makes some important observations about the gender dimensions
of the Convention Against Torture (UNCAT), conceiving gender mainstreaming even
more inclusively. General Comment 2 emphasizes that special attention must be given
to protecting marginalized groups or individuals who are ‘especially at risk of torture’,
including those who may be at risk because of ‘[race,] gender, sexual orientation, trans-
gender identity . . . or any other status or adverse distinction’. States parties are requested
to provide additional information in their periodic reports about the implementation of
UNCAT with respect to women, keeping in mind that ‘gender is a key factor’ that can
intersect with other characteristics of a person to make them more vulnerable to torture
or ill-treatment. e Committee notes that women are particularly at risk in contexts
85 CERD, General Recommendation XXV, para 2. 86 HRI/GEN/1/Rev.9 (Vol I) 113.
87 CESCR, General Comment 16, para 26. 88 CESCR, General Comment 16, para 27.
89 CAT, General Comment 2, HRI/GEN/1/Rev.9 (Vol II) 376.
90 CAT, General Comment 2, para 21. 91 CAT, General Comment 2, para 22.
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92 CAT, General Comment 2, para 22. 93 CAT, General Comment 2, para 22.
94 Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual
Orientation and Gender Identity (2007). See further Chapter 15.
that include ‘deprivation of liberty, medical treatment, particularly involving reproductive
decisions, and violence by private actors in communities and homes’. e Committee
observes that men too may be subject to gendered violations of UNCAT, ‘such as rape or
sexual violence and abuse’, and, further, that men and boys, as well as women and girls,
may be subject to violations ‘on the basis of their actual or perceived non-conformity with
socially determined gender roles’. is approach opens the way for the Committee to
identify the specicity of human rights violations that are experienced solely or primar-
ily by both women and men, as well as by the full range of gender non-conformists. is
approach is in keeping with the denition of gender identity adopted by the Yogyakarta
Principles on the Application of International Human Rights Law in relation to Sexual
Orientation and Gender Identity, which makes it clear that everyone has a gender identity
which can give rise to multiple forms of gender discrimination.
While all the General Comments aimed at gender mainstreaming promote women’s
equal enjoyment of human rights in a substantive sense, taking their lead from CEDAW,
they also reinterpret mainstream human rights to be more inclusive of women’s experi-
ence. ese reinterpretations alleviate the need to compare women’s experience with that
of men’s by reconstructing the universal standard itself, so that it is more gender-inclusive.
Yet only the Committee Against Torture breaks with the tradition of gender duality. is
creates a foothold for more complex and dynamic understandings of the operation of gen-
der hierarchies in human rights law and practice, which has the potential to strengthen
the struggle for women’s rights by more fully making them an issue of the mainstream.
5 coNclusioN
e history of women’s rights in international human rights law reveals a conundrum: how
to insist on the recognition of women’s specic human rights abuses without reproducing
women’s secondary status and encouraging protective responses. While every eort to
more fully recognize women’s rights in the development, interpretation, and implementa-
tion of international human rights law has met with some success, these eorts have also
highlighted new challenges. While anti-discrimination law can be a very powerful means
of promoting women’s enjoyment of human rights, the comparative standard that it relies
upon presents quandaries about how best to frame, measure, and realize women’s sub-
stantive equality, which have yet to be resolved. While recognizing gendered violence as
a violation of women’s human rights has been a massive achievement, the historical pull
towards embracing protective responses highlights the challenge of promoting, instead, a
rights-based response that takes women’s sexual injuries seriously while also respecting
women’s sexual agency. While the need to take account of other forms of discrimination
that intersect with or compound discrimination against women is increasingly acknowl-
edged, there remain many conceptual and practical problems about how to make such
discrimination legally cognizable. Finally, while gender mainstreaming has led to radical
reinterpretations of mainstream human rights obligations, emphasizing the interdepen-
dence of ideas about ‘men’ and ‘women’ and the realization that women’s equality depends
on challenging accepted wisdom about dominant masculinities, it has also highlighted the
dilemma of how fully to embrace ‘gender’ as a socially constructed category and include
the whole range of gender identities in its coverage. We need new thinking about legal
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CEDAW materials (OHCHR):<http://www2.ohchr.org/english/bodies/cedaw/index.htm>
United Nations Entity for Gender Equality and the Empowerment of Women (UN Women):
<http://www.un.org/womenwatch/daw/daw/index.html>
Women Watch (UN Inter-Agency Network on Women and Gender Equality): <http://www.
un.org/womenwatch/>
International Women’s Rights Action Watch (IWRAW): <http://www1.umn.edu/humanrts/
iwraw/>
IWRAW Asia-Pacic (IWRAW-AP): <https://www.iwraw-ap.org/>
representations of gender that challenges the dualistic and naturalized gender stereotypes
that underpin the panoply of gendered human rights abuses, before it will be possible for
international human rights law to recognize women as fully human.
A, ‘Violence Against Women:
State Responsibilities in International
Human Rights Law to Address Harmful
“Masculinities” ’ (2008) 26 NQHR 173.
B, Women, Law and Human Rights: An
African Perspective (Hart Publishing, 2005).
C C, Gender Stereotyping:
Transnational Legal Perspectives (University
of Pennsylvania Press, 2009).
H A (eds), Women’s Human
Rights: CEDAW in International, Regional
and National Law (Cambridge University
Press, 2013).
K, ‘e Tragedy of Victimization
Rhetoric: Resurrecting the “Native” Subject
in International/Post-Colonial Feminist
Legal Politics’ (2002) 15 HHRJ 1.
M, e Seductions of Quantication:
Measuring Human Rights, Gender Violence
and Sex Tracking (University of Chicago
Press, 2016).
M, ‘Sexuality, Violence against Women,
and Human Rights: Women Make
Demands and Ladies Get Protection’ (2004)
7 Health and HR 16.
O, ‘Queering Gender [Identity] in
International Law’ (2015) 33 NJHR 299.
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Customer Book Title Stage Supplier Date
OUP International Human Rights Law First Proof omson Digital 04 Sep 2017
16-Moeckli-Chap16.indd 325 04/09/17 10:50 AM
