Article 8 of the Convention to Eliminate All Forms of Discrimination against Women (CEDAW): A Stepping Stone in Ensuring Gender Parity in International Organs and Tribunals

Article 8 of CEDAW requires state parties to the treaty to “take all appropriate measures to ensure to women, on equal terms with men and without any discrimination, the opportunity to represent their Governments at the international level and to participate in the work of international organizations.” Given the plain text of the provision and its subsequent interpretation by the Convention’s enforcement body, the CEDAW Committee, it is clear that state parties have a duty to ensure gender equality in the access to positions in international tribunals and bodies that play key roles in developing international law and human rights. As of today, 189 states have ratified CEDAW, thereby making the obligations arising out of Article 8 an almost universal requirement. The goal of GQUAL is to work with states, international bodies, and civil society organizations towards the effective implementation of this duty.

The obligation to ensure equal opportunity “to participate in the work of international organizations” under Article 8 is two-fold. At the international level, states must exert influence when the rules regulating processes of appointment to international positions are adopted to guarantee that they conform to the gender equality requirements of that provision (Sarah Wittkop, Article 8, in the UN Convention on the Elimination of All Forms of Discrimination Against Women, A Commentary,at 224). At the domestic level, states must establish transparent selection processes to ensure that women benefit on an equal basis from the opportunity to work at the international level, particularly when such opportunity requires states to nominate candidates to be appointed to those positions (Id.). Even though the obligation to ensure gender equality at the international level is of a positive nature, at the domestic level states have an immediate duty to set up the necessary conditions to guarantee women de facto equality to access those opportunities. On the other hand, the duty to achieve in practice gender equality is considered to be of gradual implementation.

When Article 8 speaks of “international organizations,” it is understood that this notion encompasses not only international bodies such as the United Nations, but also regional organizations, including the Organization of American States, the Council of Europe, and the African Union to mention a few (Id.). Moreover, all organs within those organizations are covered by this obligation, including “courts, subsidiary bodies, funds and programmes, specialized agencies, and treaty bodies.”(Id.) Consequently, states have a duty to ensure gender equality in access to positions at both levels and to all international organs.

Additionally, Article 8 requires that state parties to the Convention “take all appropriate measures” to ensure gender equality in their representations to international organizations. According to the CEDAW Committee, the appropriate measures include the creation of objective criteria and processes for the appointment and promotion of women to relevant positions (CEDAW, General Recommendation No. 23 (1997) paras. 38, 50) and the adoption of temporary special measures aimed at accelerating substantive equality for women,(Id., para. 43) as provided by Article 4 of the Convention. The Committee has read this article to require state parties to adopt temporary measures such as special educational opportunities, recruitment policies, and quotas in order to expedite gender de facto equality in areas where women are chronically underrepresented (CEDAW, General Recommendation No. 25 (2004) para. 22). Such temporary special measures are necessary to bypass entrenched cultural and structural issues that make it impossible for women to compete on an even playing field with men (Id., para. 14).

The CEDAW Committee’s interpretation of the Convention through its Concluding Observations on state parties and its General Recommendations is vital to understand the practical implications and obligations of the Convention. Even if Article 8 has not been extensively interpreted, the CEDAW Committee has repeatedly obligated states to take whatever measures necessary to ensure de facto gender equality in international representation. Specifically, the Committee has repeatedly recommended that state parties establish temporary statutory quota systems to achieve substantive equality in both the diplomatic service and states’ representations to international organizations. (Concluding Observations, the Netherlands, 2010, para. 33). Finally, given the precise nature of the obligation to take all appropriate measures, this duty is of immediate application and may be subject to enforcement at the domestic and international jurisdiction (Sarah Wittkop, Article 8, supra, at 231).

In conclusion, Article 8 of the CEDAW clearly provides for a state duty to guarantee women de facto equality to access positions at international tribunals and other organs. Thus, the CEDAW Committee can play a pivotal role to ensure states’ compliance with such an obligation. In particular, the GQUAL Campaign asked the CEDAW Committee to take three steps to monitor states’ compliance and implementation of Article 8. First, the Committee should use the reporting procedure under Article 18 of CEDAW and ask states to respond to specific questions on gender parity in access to international positions. This includes the type of processes they use to nominate candidates to international courts and other organs; whether they take into consideration the obligations under Article 8 when making such nominations and voting on candidates at the international level; and the number of women they have nominated to international organs and tribunals vis a vis men in recent years.

Also, the CEDAW Committee could use the Concluding Observations to recommend to states the adoption of specific measures at the national nomination level to ensure transparent procedures, the use of objective criteria and gender parity. Additionally, the Committee could remind states that their obligations under Article 8 also apply at the international level when states vote for these positions.

Additionally, the Committee could play a vital role in clarifying states’ obligations under Article 8 by explaining how it applies to gender parity in international organs and tribunals. The Committee may choose to do it through an update of existing General Recommendations No. 23 and 25, or by adopting a new General Recommendation on this matter.

The GQUAL Campaign also believes that there is an important role for civil society organizations (‘CSOs’) involved in the work of the CEDAW Committee to monitor compliance with Article 8 when submitting their shadow reports. CSOs should provide the Committee clear information on the existence or lack of transparent processes of nomination for international courts and organs in the state under scrutiny and whether the state concerned takes into account their obligation to provide women with equal access to those nominations and positions.