Without Prejudice

Without Prejudice

CEDAW and the determination of women's rights in a legal and cultural context You do not have access to this content

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Commonwealth Secretariat
01 June 2010
9781848590618 (PDF)

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CEDAW – the UN Convention on the Elimination of All Forms of Discrimination against Women – is a powerful international human rights instrument that reflects a global determination to achieve gender equality. Turning aspiration into reality presents many challenges, particularly in relation to the process of adjudicating on women’s rights in both legal and cultural contexts.

This book looks at the range of cultural and legal challenges relating to the implementation of CEDAW, and the individual approaches adopted in various jurisdictions and contexts across the Commonwealth. Commonwealth declarations in support of CEDAW and initiatives from numerous Commonwealth countries are brought together here to support continuing efforts to address these issues.

This practical guide will inform and assist judges, adjudicators, lawyers and activists to advance the implementation of the principles of CEDAW within jurisdictions connected historically by the application of the common law.

Find out more about [email protected] here http://www.unifem.org/cedaw30/
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  • Expand / Collapse Hide / Show all Abstracts Background

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    • Introduction, Meena Shivdas and Sarah Coleman

      The Commonwealth, with its broadly shared legal heritage – reflected in a political, geographical and culturally diverse landscape – presents both opportunities and challenges for the advancement of women’s rights in judicial and quasi-judicial realms.

    • Thoughts on the UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), Christine Chinkin

      The story of the UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) comes out of many decades of women’s activism and organising around issues such as the abolition of slavery, suffrage, trafficking, the peace movement and, in many countries of the Commonwealth, nationalism and struggles for independence. However, the move for the adoption of an international treaty dedicated to the elimination of all forms of discrimination against women – to achieve formal (legal) and de facto (real) substantive equality for women with men in all areas of life in recognition of their human rights and fundamental freedoms – was to build upon and strengthen the prohibition of discrimination (including on the basis of sex) contained in the UN Charters – the United Nations Declaration of Human Rights1 and the 1966 International Covenants.

    • The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and realisation of rights: reflections on standard settings and culture, Indira Jaising

      The articulation of rights and the setting of standards remains the first step towards the realisation of those rights. Whether or not an individual can actualise the right is dependent on the capability of the individual. It must be remembered that law is only a tool of empowerment. For the actualisation of rights, the capabilities approach (developed by Amartya Sen and contextualised in the legal framework by Martha Nussbaum) is extremely appealing as it gives meaning to human rights and provides judicially manageable standards for testing the validity of law and policies.

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  • Expand / Collapse Hide / Show all Abstracts Towards Gender Equality: Reconciling Culture and the Law

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    • Culture, religion and gender: an overview, Frances Raday

      This article explores the intersection of culture, religion and gender in the context of international and constitutional human rights law. The clash between religious or cultural autonomy and gender equality is a pervasive problem for constitutional law, one that arises in connection with claims of immunity from gender equality provisions on the grounds of cultural or religious freedom. I will describe how the resulting conflict has been addressed in international law and in the decisions of various constitutional courts and propose a theoretical basis for structuring the hierarchy of values to resolve this issue in a constitutional framework of human rights.

    • Domestication of CEDAW: points to consider for customary laws and practices, C C Nweze

      Global concern for the improvement of the welfare of women dates back to the 1940s, when the United Nations set up the Commission on the Status of Women (CSW). To its eternal credit, the Commission has been able to highlight the particular disadvantages of women, while its activities have generated many Declarations and Conventions. The CSW meets annually, its recent activities including, among others, the input it made to the 1992 International Human Rights Conference; the 1993 International Year of the World’s Indigenous Peoples; the 1994 Population and Development Conference (The Cairo Summit); the 1994 International Year of the Family; and planning the 1995 UN Women’s Conference in Beijing.

    • Gender, culture and the law: the South African experience, Mokgadi Lucy Mailula

      A body of case law has come into being over the past 14 years which demonstrates the extent to which the South African judiciary has shown respect for gender and cultural rights, and its ability to deal with the tensions between them.

    • Scope of regional instruments: a perspective on the Southern and East Africa region, Gladys M Nhekairo Mutukwa

      The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) has been drawn on for the development and adoption of regional Southern and East African instruments relating to eliminating discrimination against women, promoting gender equality and equity and facilitating sustainable and equitable development.

    • Last but not least: CEDAW and family law, Cassandra Balchin

      The last of the substantive provisions of the Convention on the Elimination of all forms of Discrimination against Women (CEDAW, article 16)2 relates to gender equality in marriage and the family. When injustice in marriage and the family is such a pervasive experience for women and girls, why is it that international human rights standards and indeed mainstream human rights organisations apparently relegate family matters to the least of their concerns? What are the prospects for the ‘last’ to no longer remain ‘least’?

    • Gender analysis of child support in the Caribbean: legal, socioeconomic and cultural issues for consideration, Roberta Clarke, Tracey Robinson and Jacqueline Sealy-Burke

      This chapter vividly highlights the extent to which childcare is a feminised responsibility with the expectation that children are the primary responsibility of mothers. Indeed, the great majority of applications made to the courts in the Caribbean are made by mothers. The chapter is based on research undertaken by the authors with support from IDRC and UNICEF and published by the UNIFEM Caribbean Office in 2008 as ‘Child Support, Poverty and Gender Equality: Policy Considerations for Reform’.

    • Women's dignity and rights: situating Pacific experiences, Mere Pulea

      All Pacific countries are part of the global movement to improve women’s rights and to end gender discrimination and violations. Most Pacific countries have ratified key human rights conventions, including the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).

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  • Expand / Collapse Hide / Show all Abstracts Afterword

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    • CEDAW and the Committee: personal reflections, Savitri Goonesekera

      My first article relating to the UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) was written in the 1980s after my country, Sri Lanka, ratified the Convention in 1981. I recall that I could hardly find informative publications on the Convention, especially in the context of issues relating to women’s human rights in the developing countries of Asia and Africa. CEDAW did not feature prominently in the Third World Conference on Women, which I attended in Nairobi in 1985.

    • CEDAW: reflections on the framework in the context of culture, Farida Shaheed

      In Pakistan, CEDAW’s adoption went unnoticed: 1979 was a traumatic year marked by a military dictatorship hanging the elected Prime Minister. In September 1981, when CEDAW came into force, I was engrossed in mobilising the women’s rights lobby, Women’s Action Forum, to mount collective resistance to the military’s misogynistic campaign. Until 1988 and the return of democracy, the need to counter daily threats to rights within the country consumed all time and energies. Even afterwards, only a few activists were engaged in the UN system processes. It was not until 1993–94, in the build up to Fourth World Conference on Women, that some of us started pressing the government to sign CEDAW.

    • Reflections on CEDAW, Radhika Coomaraswamy

      The adoption of CEDAW in 1979 was the culmination of activism on the part of women from all over the world. Women fighting for equality before the law, women struggling for justice for rural women, women workers fighting for benefits, women challenging inequality in the family, united to bring forth this Convention that would create an international normative framework for the protection of the rights of women.

    • Endnote, Meena Shivdas and Sarah Coleman

      By bringing together critical analyses of recent efforts towards the realisation of women’s rights within legal and cultural contexts, this publication situates the progress and the challenges in advancing gender equality throughout the Commonwealth.

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