Symposium by GQUAL on CEDAW’s GR40: Gendering and Decolonizing Human Rights Bodies – CEDAW GR 40’s Impact on Women’s Representation in International Decision-making Organs

[Professor Hélène Tigroudja is a professor at Aix-Marseille University, visiting Professor at the Centre for International Law of National University of Singapore and Member of the UN Human Rights Committee]

The opinions are expressed in the author’s personal capacity.

The General Recommendation No. 40 on the equal and inclusive representation of women in decision-making systems (hereafter, GR40) adopted by the CEDAW Committee elaborates on the new “paradigm-shift” that must be followed by States Parties to the CEDAW to achieve substantial equality and equal representation between men and women. The roadmap mainly elaborates on the domestic sphere and the national/local decision-making systems, but also on international institutions. Indeed, there is a pressing need to reflect upon the shift paradigm regarding the participation of women in international decision- and law-making systems in general – such as diplomacy, international organizations or international courts – and regional/universal human rights bodies in particular. The present article aims to briefly discuss a taboo issue: the patriarchy and colonial structure that still shape human rights bodies (1). It also exemplifies the harmful consequences of the lack of women’s participation in these international organs (2). The article concludes with the added value of GR40 as a holistic and comprehensive tool not only for filling the gap of women’s participation in multilateral institutions but also for achieving a universalist ideal (3). 

1. Ending the Patriarchy and Colonial Structure of Human Rights Bodies 

In paragraph 11 of GR40, the CEDAW Committee states that: “Patriarchy permeates all societies.” This statement applies to all human rights bodies. As far as the European Court of Human Rights is concerned, the Tribunal started its activities in 1959 but the very first woman to chair the Court was only elected in 2022. And even if under the Parliamentary Assembly of the Council of Europe’s pressure, States’ nomination of candidates to the judges’ position is more gender-balanced, States such as France, Greece and the UK have never had a female European judge. For the UN treaty bodies (hereafter, TBs), a comparison between the Committee against Torture (CAT Committee) on the one side and the CEDAW Committee or the Committee on the Rights of the Child (CRC) on the other shows a huge imbalance in their membership. Women are over-represented in the CEDAW and CRC Committees, while very isolated and almost invisible in the CAT Committee. For other TBs such as the Human Rights Committee, the parity is not respected but as mentioned in GR40, States are satisfied with a representation of 33% women, which “convey the message that inequality between women and men is justifiable” (para. 40 – Membership and composition in force in January 2025). The under-representation of women in TBs is symptomatic of their precarious situation within multilateral institutions, as also stressed by GR40 (para. 53). 

It should be added that, once elected, a female expert might continue to face negative prejudices and stereotypes that are rooted in patriarchal and colonial structures, especially if she is relatively young, comes from a non-Western State and is a non-native English speaker. These types of prejudices might be perpetuated by the members (including women), the secretariat and the UN itself. Indeed, the conditions and requirements for being a TB expert – a non-paid position with several weeks away from home – constitute a challenge for many women with caregiving duties and financial limitations. Therefore, the intersectional discrimination that impedes the full equality between men and women at the domestic level also exists at the international level. However, the problem goes beyond that and must also be analyzed under an intersectional lens. Human rights bodies such as the Human Rights Committee are still marked by an international patriarchal elite and hegemony from Western European and other States (WEOG) with experts sharing the same legal culture. To a certain extent, Western English-speaking male experts continue to be presented and assumed – by the secretariat staff or by other members – as the only potential holders of the rationality of International Human Rights Law (IHRL). In this regard, what is at stake in GR40 is not only ensuring a numerical representation of women at the international level: it also aims at transforming the mindset of the human rights system and shifting from an elitist “only-men club” decision-making process to a much more diverse, and inclusive paradigm largely based on the recognition of the intersectionality. 

2. The Negative Impact of the Under-representation of Women in Human Rights Organs 

One of the strong assumptions made by GR40 is that the lack of parity is not only a violation of women’s rights to be treated in equality with men but also deprives humanity of the participation of women in “building a collective intelligence” (para. 4), especially when women are embraced in their full diversity. Presently, women’s voices are not heard enough, and their knowledge, intelligence and experiences are neither used nor valued to shape the social and legal norms. This also applies to human rights treaty bodies, which are law-maker organs and determine international social and legal norms and standards. There is no space in this article to dwell on the causal nexus between the under-representation of women and the content of norms decided by human rights bodies. However, while I am aware that this would deserve a deeper and more thorough analysis, I will provide some specific examples where the women’s under-representation in TBs might be harmful for the substance of IHRL itself and its progressive development. 

The first illustration is taken from an individual complaint dealing with women’s rights. My point is not to affirm that only women can monitor and construe women’s rights. I make a distinction between women’s representation in decision-making organs, which is the topic of GR40, and defense of women’s rights which is not necessarily a woman’s exclusive prerogative. On the contrary, there are some illustrations in the Human Rights Committee’s practice where the stance of female members of the Committee fell short protecting women’s rights (see the dissenting opinion under Eugénie Chapukewa v. Democratic Republic of Congo). Nevertheless, when assessing claims dealing with gender-based discrimination, sexual and gender-based violence or sexual and reproductive rights, women’s diverse lenses and experiences are needed and must be heard. The Elizabeth Coppin v. Ireland saga before the CAT Committee is a good example. It dealt with the gender-based violence suffered by the author when she was a child and placed in the “Magdalena Laundries” during the 1960s. In an admissibility decision, the CAT Committee took a bold and creative stance on its ratione temporis jurisdiction to address the claims. However, when the composition of the CAT changed to very few female experts, it had a direct impact on the way the CAT Committee handled the merits of the case: following a contested legal reasoning, the organ concluded to the non-violation by Ireland of the obligation to investigate the facts.  

The second example is also related to sexual violence with a paradigmatic case adjudicated by the Human Rights Committee against Nepal. In its decision, the Committee considered that the multiple rapes suffered by the author of the complaint also led to a violation of her private/family life right, since she had been repudiated by her husband and stigmatized by her family-in-law. A (male) member of the Committee wrote a partly dissenting opinion on that point, considering that there was no causal nexus between the sexual violence and the long-term consequences on the victim’s private and family life. I will not discuss the reasoning of this opinion but I only mention that once the decision was published, the author wrote a letter to the Human Rights Committee to share how she felt revictimized by the individual opinion, considering that her experience as a 14-year indigenous girl gang-raped by soldiers for several weeks was not heard nor fully captured. Although it was an isolated opinion and not the position of the Committee itself, this case is a clear illustration that negative stereotypes, and a non-intersected worldview might have an impact on the way IHRL is construed. Women in their diversity might have different views on human rights but one point is obvious: women’s experiences cannot be fully addressed when experts are unable to epistemologically and intellectually embrace them.  

Additional illustrations of the impacts of lack of genuine parity – in the meaning conveyed by GR40, i.e. equal participation of women in their diversity in the law-making process and decision-making systems in all sectors – could also be taken from the Yaker v. France decision of the Human Rights Committee where Western-non-Muslim female experts debated on the scope and content of freedom of religion of Muslim women. However, beyond cases and issues related to women’s rights, the absence of a representation of women in their diversity in the membership of international organs might equally impact the way other topics related to the defense of civic space, definition and protection of democracy, or new challenges raised by climate change and new technologies are construed. Thus, women in their diversity of knowledge and experiences are a key-component of what GR40 calls the “collective intelligence”. 

3. Full Parity as a Universality Project for Human Rights Bodies 

There is a clear continuum between the lack of parity at the domestic level and the negative stereotypes that explain the under-representation of women in regional and universal human rights bodies. As said in para. 56 of GR40, this situation is due to the lack of objective criteria for international nominations and elections, but not only that. The prejudices that trigger structural and intersectional discrimination at the national level have direct effects on the absence of international parity.  

However, the question of applicability of CEDAW obligations to decision-making organs and multilateral institutions can be raised. Do States have the legal obligation to promote gender parity in the international area? The answer is provided by the CEDAW itself. The Convention imposes obligations applicable within the States’ domestic sphere and to situations under their jurisdiction but also obligations regarding international institutions they belong to (Article 8). Accordingly, the decision to promote candidates with cultural and sociological diverse profiles to experts’ and judges’ positions at regional and universal levels falls under their jurisdiction under the CEDAW. In this respect, GR40 reaffirms and develops what was already stated in the previous General Recommendation No. 23 (1997) on women in political and public life. 

In this regard, GR40 suggests some practical and concrete recommendations to achieve the goal of “parity in international decision-making” (paras. 52 et seq.) such as the: promotion of women’s leadership, including for international mandates; development of gender-based recruitment strategies; and awareness-raising regarding the transformative role of girls and women. The stereotype that parity would be the enemy of meritocracy must also be combated by States.  

To this aim, pillars 4 and 5 of GR40 (paras. 33 et seq.) are of the utmost importance for increasing the presence and the visibility of women in human rights organs and developing and fostering a leadership culture. However, not a leadership that would mimic men’s behavior. Women leadership freed from the internalization of patriarchal way of being (including in terms of self-perception) and based on a diversity of cultures, worldviews, traditions, religions and identity is needed for fighting against the mere reproduction of an “elitist club of international experts”. It is also crucial for shaping a holistic, progressive, diverse, and pro persona discourse on international human rights. 

The author warmly thanks Professor Ludovic Hennebel, Vice-Chair of the UN Committee on Economic, Social and Cultural Rights, Dr Lorraine Dumont (Aix-Marseille University – France) and Aline Rivera Maldonado, PhD candidate (Cergy/Aix-Marseille University) for their valuable comments, thought-provoking ideas and suggestions that substantially improved the article.