Symposium by GQUAL on CEDAW’s GR40: Reinvigorating Equal and Inclusive Participation of Women in International Decision-making – CEDAW’s General Recommendation 40 and a Renewed Interpretation of Article 8 of the CEDAW Convention

[Claudia Martin is a Co-Director of the Academy on Human Rights and Humanitarian Law at American University Washington College of Law and a Founding Member of GQUAL’s Secretariat.]

General Recommendation 40 (‘GR 40’), adopted by the Committee on the Elimination of Discrimination against Women (‘CEDAW’), provides a roadmap to address the persistent failure of equal and inclusive sharing of power in decision-making between women and men in all fields and proposes comprehensive guidance aimed at “systemic change.” The lack of women’s equal and inclusive representation undermines efforts to tackle what GR 40 labels “disruptive and urgent challenges” that affect local, national, regional, and global communities. Among the challenges identified, there are several global issues, including the sustainability of the multilateral system and governance, climate change, peace and security, and economic development: areas where women’s full and equal representation is essential to promote and sustain lasting solutions. Article 8 of the Convention on the Elimination of All Forms of Discrimination against Women (‘the Convention’) is the core international obligation ensuring equal and inclusive participation of women in international decision-making and serves as one of the provisions upon which GR 40 is grounded.   

The adoption of GR 40 reaffirms three core principles crucial for advancing equal and inclusive representation of women in international decision-making under Article 8 of the Convention. First, GR 40 asserts that women have a right to equal and inclusive representation in all decision-making systems under international human rights law, based on the principle of equality and non-discrimination. Second, GR 40 recognizes that tackling women’s underrepresentation requires addressing various intersecting grounds of discrimination that ensure the inclusion of women in all their diversity. Finally, GR 40 defines “equal and inclusive representation” as requiring gender parity.   

Women’s Right to Equal and Inclusive Representation in International Decision-making  

Several provisions under international human rights treaties protect the right of women to equal representation in decision-making systems; however, it is Article 8 of the Convention, complemented by Article 7 of the same treaty, that specifically ensures this right at the international level.  

GR 40 acknowledges that Article 8 establishes a twofold obligation: States parties must take all appropriate measures to ensure that women have the opportunity, on equal terms with men, to represent their governments at the international level and to participate in the work of international organizations. This obligation is nearly universal, given that 189 States have ratified the Convention to date. 

Under the first prong of the obligation, GR 40 encompasses women in the diplomatic and foreign services, as well as those serving as part of State delegations, and concludes that women remain underrepresented in these sectors, particularly in the higher ranks. To address such underrepresentation, GR 40 recommends that States “achieve and maintain parity in diplomatic ambassadorial appointments” and “ensure parity in the composition of all international delegations.” (CEDAW, General Recommendation No. 40, CEDAW/C/GC/40 (2024), hereinafter GR 40, para. 54). Furthermore, it urges States to implement a foreign feminist policy, “making gender equality and women’s and girls’ empowerment a central focus of government policy abroad.”  

In the second prong of the obligation, GR 40 acknowledges that when Article 8 refers to “international organizations,” it includes both universal and regional organizations. In other words, “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.” Additionally, this obligation extends to all organs within these organizations, including “courts, subsidiary bodies, funds and programmes, specialized agencies, and treaty bodies.” A close examination of GR 40’s language shows that these international institutions cover a diverse set of thematic areas ranging from peace and security, human rights, international disputes, economic development, and trade to climate change, to name a few. 

The full implementation of women’s right to participation “in the work of international organizations” under Article 8 carries obligations relevant to both the domestic and international levels. At the domestic level, States must guarantee formal equality through the adoption of non- discrimination laws and transparent selection and nomination processes guided by objective criteria, that take gender into account, to ensure that women de facto benefit on an equal footing from the opportunity to compete for positions in international decision-making bodies. On the other hand, at the international level, States must exert influence when adopting the rules that regulate the appointment processes to positions in tribunals or other organs to guarantee that they conform to the gender parity requirements of Article 8. Additionally, States must vote in parity when appointing candidates for positions in those institutions, particularly in cases where women are underrepresented.   

In that vein, GR 40 underscores that the current underrepresentation of women in international organizations, including tribunals and mechanisms, can be attributed “to the absence of objective criteria and processes for appointment and promotion to relevant positions.”  (GR 40, para. 56). To remedy this, it calls on States to enact laws that establish transparent procedures at the national level for nomination for international positions, incorporating gender parity and merit as criteria for the selection procedures. States should also widely disseminate information on vacancies along with comprehensive job descriptions. Furthermore, at the international level, GR 40 recommends States to establish “international partnerships on parity,” and calls them to “anchor the principle of parity in decision-making, in all spheres and at all levels, in all future international frameworks and reform processes, and in the application and interpretation of existing ones.” (GR 40, paras. 55, 72). 

Additionally, Article 8 requires that State parties to the Convention “take all appropriate measures” to ensure women substantive equality in accessing positions to represent the government internationally and in the work of international organizations.  

Although Article 8 has not been extensively interpreted, CEDAW has consistently required States to adopt measures necessary to ensure de facto gender equality in international representation. Such measures include establishing objective criteria and transparent procedures for appointing and promoting women to relevant positions, as well as implementing temporary special measures aimed at accelerating substantive equality for women, as outlined in Article 4 of the Convention. CEDAW has interpreted Article 4 to require State parties to adopt temporary measures such as special educational opportunities, recruitment policies, and quotas in order to expedite de facto equality where women are persistently underrepresented. Similarly, in GR 40, CEDAW calls for adopting “a strong legal framework to prevent and address discrimination and ensure substantial equality, including targeted permanent and temporary special measures to reach 50:50 parity in decision-making systems within a clear framework” (GR 40, para.25). These special measures are necessary to overcome deeply rooted cultural and structural barriers that prevent women from competing on an even playing field with men. Given the precise nature of the obligation to take all appropriate measures, this duty is of immediate application and may be subject to enforcement in domestic and international jurisdictions. 

Intersectionality and Inclusion of Women in All Their Diversity in International Representation 

In line with prior General Recommendations and practice, GR 40 states that the Convention recognizes that women face different and intersecting forms of discrimination when protecting specific groups, including inter alia women in poverty, pregnant women, or rural women, in its provisions. By acknowledging their diversity and the distinctive challenges that each group of women endure, the treaty requires States to take into consideration intersecting forms of discrimination when adopting measures to respect and ensure the principle of equality and non-discrimination. In that vein, States must ensure women’s right to participate in decision-making power on equal terms with men at the international level through measures that take into account these intersecting factors and guarantee the representation of women in all their diversity. 

Equal and Inclusive Representation as Parity 50:50 

The recently adopted GR 40 clarifies that “equal and inclusive representation” means “parity 50:50 between women and men in all their diversity in terms of equal access and equal power within decision-making” (GR 40, para. 2). Accordingly, women’s representation at the international level and their participation in the work of international organizations “on equal terms with men” under Article 8 of the Convention must be understood as requiring that women reflect a 50% representation in the composition of international organizations, including courts and other bodies. GR 40 defines parity as both a starting point and a universal rule aimed at systemic change. According to CEDAW, the parity requirement is rooted in the Convention itself, as well as other international and regional treaties and instruments, previous General Recommendations, such as General Recommendation 23, and CEDAW’s Concluding Observations. 

Besides affirming the application of a parity rule, GR 40 further clarifies that women’s equal and inclusive representation means “sharing of power between women and men as a permanent and core feature of all areas, including political, public and economic life.” (GR 40, para 15). In this regard, it rejects a “tokenistic approach” where women participate without genuine decision-making power. Instead, GR 40 contends that the complexity and disruptive nature of today’s challenges require a “surge in [gender] parity,” ensuring that women attain decision-making positions to drive and influence agendas on an equal footing with men. Consequently, rules adopted to guarantee gender parity at the domestic and international level, even if essential to achieve equal and inclusive representation of women, are not “intended to be removed once women’s historical disadvantages have been redressed but remain [] as a legal principle and permanent and universal feature of good governance” (GR 40, para 15).  

Ultimately, GR 40 recommends that under Article 8 of the Convention, States adopt parity rules to address women’s underrepresentation in the diplomatic service, in all international delegations, and in positions within international organizations. Likewise, it calls the international community to “[a]dopt parity mechanisms for the membership of all UN bodies and mechanisms, including the main committees of the General Assembly, the Economic and Social Council, and expert bodies, including treaty bodies, international tribunals, in appointments to independent working groups or as country or special rapporteurs, as well as in the leadership in multilateral institutions.” (GR 40, para. 72). 

Conclusion 

The recent adoption of GR 40 on women’s equal and inclusive representation in decision-making systems is crucial to refining and promoting the effective implementation of States’ obligations under Article 8 of the Convention. This includes ensuring that women, in all their diversity, have full and equal access to represent their governments internationally and participate in the work of international organizations. 

In particular, GR 40 offers an invaluable and unparalleled opportunity not only to affirm and define the scope of women’s right to equal representation in international positions under Article 8, but also to authoritatively assert that States have a fundamental obligation to guarantee gender parity- meaning a 50:50 balance – in the composition of all international institutions, including international tribunals and other monitoring and adjudicatory bodies. 

CEDAW’s longstanding interpretations of the Convention, expressed through its Concluding Observations and General Recommendations are essential for understanding States’ practical obligations. These interpretations clarify the implications and obligations arising from the treaty as they detail the information States must report, as well as the actions they must take to fully comply with their obligations under the Convention. CEDAW has repeatedly urged States to do more to ensure full implementation of Article 8. 

In that context, the first and most fundamental step CEDAW can take to ensure States parties’ compliance with Article 8, and to guarantee that women’s equal and meaningful participation at the international level is achieved in a lasting and sustainable way, is to encourage and monitor consistent and comprehensive reporting on this provision in its future practice and engagement with States parties.