CEDAW and Violence Against Women: Reflections After 40 Years

I am pleased to offer this brief foreword to the first special issue of Violence Against Women highlighting contributions from civil society at the Commission on the Status of Women (CSW). As an academic, a civil society leader, and now a member of the Committee on the Elimination of Discrimination Against Women (CEDAW), I acknowledge the voluminous research that has taken place globally on violence against women, much of it featured in this journal. This research is a tribute to the importance of this topic, its globalized nature, and the activism inherent in much of this research, as well as resulting from it. The United Nations Treaty Body system benefits enormously from academic research, and this special issue is a very needed step in connecting this research to the work that we do. In this brief foreword, I would like to offer reflections on CEDAW's treatment of violence against women and calls for a binding international treaty only on violence against women.

The 1979 CEDAW Convention (United Nations, 1979) has been described as the International Bill of Rights for Women and the landmark United Nations treaty in the struggle for women's rights. It defines discrimination against women in terms of its impact on women's equal enjoyment of their human rights and fundamental freedoms. It also binds them with respect to public actions, laws, and policies and extends the understanding of human rights “by requiring the State party to prevent or impose sanctions on acts of discrimination by non-State (private) actors, including within the family, the community, and the commercial sector” (Chinkin & Freeman, 2012, p. 2). This has allowed for the depth and breadth of CEDAW's engagement with States parties, engaging both the so-called “public” and “private” spheres.

Written in the 1970s, it is open to interpretation. Over the years, based on new information, research and scholarship, social movements, interface with NGOs, women activists, experts, and the internal discussions among Committee members, the articles are interpreted in new ways. For example, the section on rural women has been expanded to address disadvantaged groups of women more broadly, including women with disabilities; older women; lesbian, bisexual, and transgender women; women of ethnic and religious minorities; and other racialized and stigmatized groups. Another important area of consistent interpretation has been on violence against women.

The CEDAW Convention and Violence Against Women and Girls

The omission of violence against women and girls from the CEDAW Convention has been the source of much global debate. Despite its absence from the Convention itself, from its inception, violence against women was a concern of CEDAW committee members. Even during the Committee's first few sessions, according to Vijeyarasa (2020), Member States had to respond to questions on violence against women, regardless of whether it was included in their reports.

Initially addressed through articles 2, 5, 11, 12, and 16, CEDAW's response to violence against women was strengthened with the adoption, in 1989, of General Recommendation (GR) 12. General recommendations are authoritative statements used to clarify States’ reporting obligations, to suggest approaches to implementing treaty provisions, and to provide information to stakeholders. They are not legally binding; however, they are considered authentic guides on the content of legal duties assumed by States parties. GR12 calls on States parties to include in their periodic reports information about legislation in force to protect women against the incidence of all kinds of violence in everyday life, other measures adopted to eradicate this violence, the existence of support services for women who are the victims of aggression or abuse, and statistical data on the incidence of violence of all kinds against women and on women who are the victims of violence (CEDAW/GR12, 1989, p. 1). Just three years later, in 1992, General Recommendation 19 was adopted. It asserts that States parties are obligated to fight violence against women as a form of gender-based discrimination established in the definition of discrimination in Article 1 of the Convention (United Nations CEDAW, 1992).

This issue has been so important to CEDAW that in July 2017, General Recommendation 35 (GR 35) on gender-based violence against women (GBVAW) was adopted. GR 35 acknowledged that over the past 25 years, States parties had endorsed the Committee's interpretation with the result that the opinio juris and State practice on the prohibition of GBVAW had evolved into a principle of customary international law (GR35, 2017, p. 2). This GR also marked a significant change in language from violence against women to GBVAW. The new term “strengthens the understanding of the violence as a social rather than an individual problem, requiring comprehensive responses, beyond those to specific events, individual perpetrators and victims/survivors” (CEDAW/GR35, 2017, p. 4).

The UN and Violence Against Women

In addition to the work of CEDAW, the UN System itself and the Office of the High Commissioner for Human Rights (OHCHR) in collaboration with regional human rights institutions have prioritized violence against women. Other instruments include the 1993 Vienna Declaration and Programme of Action; the 1993 Declaration on the Elimination of Violence against Women; the 1994 establishment of the Special Rapporteur on violence against women, its causes and consequences; and the launch in 2018 of the Expert Mechanisms on Discrimination and Violence Against Women Platform of Independent Expert Mechanisms on Discrimination and Violence against Women (EDVAW). The CSW, which first convened in 1947, is the United Nations principal intergovernmental body that functions to promote women's rights, gender equality, and empowerment of women worldwide. The CSW priority theme for its 65th session was women's full and effective participation and decision-making in public life, as well as the elimination of violence, for achieving gender equality and the empowerment of all women and girls.

A New Treaty on Violence Against Women?

Despite all of these provisions and mechanisms, frustration with the continued existence of violence against women and girls globally has given rise to renewed calls for a new and distinct convention on violence against women. In 2019, the organization, Global Rights for Women: Justice for Victims of Violence, reiterated its call for a new international treaty on violence against women and girls. They argued that, although international and regional legal frameworks have laid the necessary groundwork, they are not a substitute for a binding global treaty (Rubenstein, 2019).

In August 2015, special rapporteur, Dubravka Šimonović, had called for submissions from stakeholders on whether a separate legally binding treaty on violence against women with a separate monitoring body should be adopted. The responses received were generally negative. Critics argue that the numerous UN and regional treaties addressing violence against women, including the Rome Statute, which criminalizes violence perpetrated against women and girls during war and conflict, represent the commitment of the global women's movement, as well as existing treaty bodies and agencies, to this issue. Considered in this way, another treaty may not be the solution. More importantly, proponents of a treaty ignore the role and power of patriarchal ideologies and social, economic, and political structures and systems in creating and maintaining the context for violence against women. This, therefore, requires attention to the underlying social, cultural, and political structures, including, judicial and criminal justice systems, prejudices, and stereotypes.

In his empirical assessment of the success of CEDAW in relation to violence against women, Englehart (2014) found that, already in relation to GRs 12 and 19, States parties were more likely to create anti-violence laws and programs than non-parties. However, the effects of violence against women were at best lagged and modest. In other words, there was more success in establishing the formal structures and systems to address violence against women than to actually reduce its incidence. Accordingly, he cautioned about the inflated expectations of international law.

Conclusions

In my national context (Trinidad and Tobago), there have been increasing calls for more stringent and harsh penalties, punishments, legislation, and other approaches to address GBVAW. This is necessary and CEDAW, as well as the other regional and UN Human Rights mechanisms, have seriously addressed these matters at the global, regional, and country levels. Although much of the focus has tended to be on the legal aspects, GBVAW must also be addressed at the other levels of the CEDAW Convention. It must be addressed through challenges to social, cultural, and gender ideologies, stereotypes, belief systems, and harmful practices; the involvement of women and men in child care; educational advancement; economic empowerment and just economic systems; rights in nationality; family and marriage; sexual and reproductive health and rights; empowerment of rural women, disabled women, racialized and stigmatized women, lesbian, bisexual and transgender women, and other disadvantaged groups of women; and—most importantly—challenges to the patriarchal systems of social, economic, political, and personal power and control, which affect not only women's and girls' lives but also the well-being of entire societies and the world. All of this is what CEDAW is about. The debates continue, and research that brings evidence to the table is always vital for the struggle to end violence against women.