One of the first obligations states parties to CEDAW undertake – as required under Article 2a of the Convention – is to reform their constitutional and legal systems to entrench women's human rights. Some of the key steps that the CEDAW Committee has recommended include:
1. Enshrining specific gender equality guarantees in the national constitution and translating constitutional provisions into new legislation: Many constitutions around the world provide general rights to 'equality,' and general prohibitions against 'discrimination.' However, against a backdrop of widespread gender-based discrimination, general guarantees often fail women. A 'gold standard' for constitutional reform therefore requires that women's rights be entrenched directly into national systems by including explicit gender equality guarantees in the nation's constitution. This is the practice that in 2007-8 the Committee commended Luxembourg, Belize, Brazil, Mozambique and Serbia for adopting.
In light of this standard, the CEDAW Committee has recently advised several countries to review their constitutions in order to explicitly include a guarantee of equality between men and women, as well as a definition of discrimination against women that is aligned with Article 1 of the Convention. According to Article 1, "'Discrimination against women' shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect 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 field."
2. Moving from 'formal' to 'substantive' equality: Many legal systems around the world still operate with an older definition of discrimination, based on what is known as 'formal' equality. This means that discrimination is only said to occur where the law singles out a particular group for inferior treatment. Accordingly, where the same laws are being applied to all groups, equality is said to be achieved. By contrast, 'substantive' equality, as defined by CEDAW, requires an approach focused on outcomes, not merely equal processes.
For instance, according to a purely formal understanding of ending discrimination, a government would have successfully eliminated discrimination against women in political participation once it has repealed laws prohibiting women from voting or running for office. However, under CEDAW, the government would not have fulfilled its obligations until comparable numbers of women and men are actually voting and being elected. The constitutions of South Africa, Rwanda and Canada operate on the basis of substantive equality. UNIFEM is currently supporting the integration of CEDAW provisions to new or reformed constitutions in Serbia, Kosovo (under UNSCR 1244), Bosnia-Herzegovina and Montenegro.
3. Building understanding about international and national laws on gender equality. The CEDAW Committee has underlined that local officials, particularly in rural areas, should be included in outreach programmes, and that special efforts be made to reach the most disadvantaged groups of women, including members of racial minorities and indigenous populations. UNIFEM's work in seven countries of Southeast Asia is an example of advocacy to build both the capacities of governments to implement CEDAW and the capacities of civil society organizations (CSOs) to use CEDAW in order to achieve better accountability for women. For example, in Viet Nam, UNIFEM organized a training in 2006 for a network of 20 local non-governmental organizations (NGOs) known as GenComNet. This network subsequently prepared the first-ever shadow report on CEDAW implementation to emerge from Viet Nam.
4. Providing the necessary financial and human resources: While CEDAW requires that constitutions and laws be aligned with the Convention, this does not complete the state's obligation. CEDAW requires their effective implementation. The implementation status of new laws and policies is therefore a major focus for discussion in the CEDAW Committee's dialogue with states parties.
A major constraint is often a state's failure to provide the necessary financial and human resources for implementation. To address this challenge in Cambodia, UNIFEM advocacy related to CEDAW in 2006 contributed to the Prime Minister issuing a directive for all line ministries to implement the Convention's Concluding Observations. The directive assigned concrete tasks for each ministry and provided budgetary allocations for the dissemination of the CEDAW Committee's Concluding Observations to all provincial governments. In Nigeria, UNIFEM supported a study reviewing CEDAW's impact on the national legal system in order to identify and overcome challenges related to providing the appropriate legal and policy frameworks for full implementation and application of the provisions to protect and promote women's rights.
