CEDAW’s Contribution to the Development of Rights Norms

In 2014 the European Journal of International Law will publish an article of mine that raise issues I thought might be of particular interest to readers of this blog. The article in question, ‘Women’s Rights and the Periphery’, explores in some detail the case law of the Women’s Committee under CEDAW’s Optional Protocol.  It raises in particular the question of how far, if at all, the Committee has been able to develop ‘women’s rights’ in recent years into a body of law that departs from the normative and structural limitations of international human rights laws.  In large part, the article is an attempt to participate in the project of ensuring that the jurisprudence of the Women’s Committee is given the serious attention that it merits.

It is widely known that, unlike most other UN human rights treaty-monitoring bodies, the Women’s Committee was not initially empowered to receive individual complaints.  Support for an optional protocol to CEDAW was voiced at the 1995 Beijing Conference, with a request that any draft should include a right for individuals to petition the Women’s Committee. The Optional Protocol was finally adopted by the General Assembly on 6 October 1999 and entered into force on 22 December 2000.  This development, I suggest, was not just to be celebrated because it brought CEDAW into line with other treaties, but because it presented a unique opportunity for women’s voices to participate in the development of international human rights norms.

My article, however, is driven by a sense of surprise and frustration that the jurisprudence of the Women’s Committee seems to have received little attention from mainstream international scholars.  This is in spite of the Committee’s unique characteristic as a space within international law that is headed by women decision-makers, whose remit is specifically gendered and whose task is to uphold the rights of women.  Feminist scholars of International Law have long argued that women’s voices are silenced within the mainstream of our discipline, leaving them unable to participate in the development of its normative principles; the resounding silence that has met the case-law of the Women’s Committee so far appears to be another worrying example of this phenomena.

What attention has been paid to the Committee’s work has been rather muted in its assessment.  The Women’s Committee has been criticised by some for being stuck in the mainstream of international law, doomed to merely reaffirm, mantra-like, international law’s dominant ideologies.  Still others argue that CEDAW is so peripheral and isolated from the mainstream that it cannot hope to engage with, let alone challenge, the inequality and discrimination that underpin our discipline.  I take a rather more optimistic view of the Committee’s rather uneven early jurisprudence, arguing that it might suggest that the Committee is uniquely positioned to make a contribution to the transformation of human rights norms precisely because it navigates between positions both at the centre and at the periphery of international law.  The challenge for CEDAW is to consciously embrace the transformative potential inherent in its ambiguous positioning.

The article can currently be downloaded in full here in its pre-proof form.