Symposium on Gender Representation: Article 8 of CEDAW – Significance and Role of the CEDAW Committee to Tackle Women Underrepresentation in International Bodies

[Claudia Martin is Co-Director of the Academy on Human Rights and Humanitarian Law and founding member and member of the Secretariat of GQUAL. Thanks are due to Sara Luzzatto for her editorial assistance for this blog.]

One of the pillars of the GQUAL Campaign has been to assert that women’s equal representation in the composition of international courts and organs is anchored on the right to equality and non- discrimination enshrined in several international human rights treaties. In particular, we have advocated that Article 8 of the Convention on the Elimination of All Forms of Discrimination against Women (‘CEDAW’) is a stepping-stone towards ensuring equal participation of women in international decision-making. Article 8 of CEDAW provides that States parties “are to take all appropriate measures to ensure to women, on equal terms with men and without discrimination, the opportunity to represent their Government at the international level and to participate in the work of international organizations.” The report of the Advisory Committee of the Human Rights Council on “Current levels of representation of women in human rights organs and mechanisms: ensuring gender balance” (“Advisory Committee report”) acknowledges that women’s underrepresentation in international bodies and mechanisms significantly undermines their human rights to equality and non-discrimination. Moreover, the report finds that Article 8 of CEDAW is a core human rights provision to address such underrepresentation. Ultimately, the report recommends that the Committee on the Elimination of All Forms of Discrimination against Women (‘CEDAW Committee’) engages in monitoring the implementation of the obligations arising out of Article 8 as a measure to ensure equal participation of women at the international level.     

Using the definition of discrimination under Article 1 of CEDAW, which provides that “any distinction, exclusion or restriction made on the basis of sex may constitute discrimination of women if it has the effect or purpose of impairing or nullifying women’s rights” as a starting point, the Advisory Committee report recognizes that measures that appear to be neutral in so far as they relate to men and women may in fact indirectly discriminate against women, because they do not address preexisting inequalities.  Thus, even though formal equality is essential to ensuring nondiscrimination in law, substantive equality in the enjoyment of all rights requires “the consideration of the actual impact and effect of laws and policies on women’s lives.” Therefore, States must adopt affirmative measures to ensure equality in fact, not just in law, as provided by Article 4 of CEDAW, if such step is needed to overcome underrepresentation.

The principle of equality and non-discrimination is essential to ensuring the equal participation of women in international decision-making. The right to participate in political and public life, including at the international level, is enshrined in several provisions of international human rights treaties such as Article 25 of the International Covenant on Civil and Political Rights. Article 7 of CEDAW specifically states that women have the right “to participate in the formulation of governmental policy and the implementation thereof and to hold public office and perform all public functions at all levels of government.” The obligations arising out of this provision are interwoven with those of Article 8 of the same treaty – which, as indicated above, protects the equal participation of women at the international level, whether as government representatives or as members of international organizations.

The drafting history of CEDAW does not shed much light as to the scope of the protection afforded by Article 8. Said Article was not incorporated as a separate provision in the initial draft proposal. In fact, some of the negotiating States had proposed that the protections afforded by Article 8 be included in Article 7. Only later was a separate provision ensuring women’s participation at the international level added to the draft. Regardless, there is a clear-cut connection between the protections afforded by Article 8 and the language of Article 7, which seeks to ensure women’s participation at all levels of the government. Undoubtedly, the phrase “all levels of the government” encompasses both the domestic and international spheres.

The Advisory Committee report provides that the right to equal participation in international decision-making under Article 8 of CEDAW requires States to ensure: i) formal equality through the adoption of legal measures to guarantee equal representation for women at the international level; ii) substantive equality by ensuring that the recruitment and nomination processes take gender into account; iii) transformative equality by eliminating “gender stereotypes that form the basis for the continuing underrepresentation of women and the structural obstacles that originate from them,” for example by addressing the stereotypes that silo women into so-called “women issues,” including those related to family, children, health, etc.

Drawing upon the practice and interpretations of the CEDAW Committee, the Advisory Committee report observes that States should adopt specific measures to tackle the underrepresentation of women in international courts and organs. At the domestic level, States should take proactive measures to recruit more women candidates specifically; establish goals and benchmarks for the selection, recruitment, and promotion of women; and address barriers that women encounter in the selection process. At the international level, and when voting to appoint new members in international bodies, States should take gender into account, consistently with their international obligations to ensure the principle of equality and non-discrimination. In line with Article 4 of CEDAW, the Advisory Committee report recommends that women should be given preference over similarly qualified male candidates when there is a need to tackle female underrepresentation.

Next, the Advisory Committee report reaffirms the WG on discrimination’s definition of parity as the measure to assess whether States have complied with their obligation to ensure equal participation of women in international decision-making. Gender parity for purposes of underrepresentation means “no less than 50 per cent of a given body consisting of one gender.” Thus, when Article 8 of CEDAW refers to “equal representation and/or participation” this language must be interpreted as requiring at least 50 per cent of women in the composition of international courts and bodies.  

The Advisory Committee report also asserts that the notion of “international organizations” where women should be equally represented must be broadly interpreted. In the report it is defined as any “organization established by a treaty or other instrument governed by international law and possessing its own international legal personality.” Thus, universal and regional organizations, as well as courts, supervisory treaty bodies, human rights organs, funds and programs, and specialized agencies are all encompassed in that definition. 

In the last section of the report, the Advisory Committee translates the obligations arising out of Article 8 into specific recommendations. Those recommendations provide, inter alia, that States should develop and adopt formal, open, and transparent national nomination procedures which include gender parity as a specific selection criterion and goal. Additionally, it is also recommended that States consider the actual and historical composition of the particular bodies, and proceed to nominate women to organs where they have historically been underrepresented. Further, States should take affirmative steps to ensure gender parity when electing new members of international courts and bodies through concrete measures, namely: incorporating gender parity in voting practices; nominating both women and men; taking into account the actual and historical composition of the body when voting for new members; implementing target measures by committing to vote only for women when there is female underrepresentation; and encouraging States to vote for women candidates in consecutive rounds when parity is not achieved in the first round. 

Most importantly, the Advisory Committee report recommends that States include their progress and difficulties in implementing the obligations arising out of Article 8 in their periodic reports to the CEDAW Committee under Article 18 of CEDAW, in relevant reports to the WG on discrimination, as well as in their reports to other treaty bodies or relevant procedures that monitor equality and access to justice. Furthermore, the report provides that “information regarding the implementation (or not) of the recommendations should form part of the measures adopted to give effect to Article 8 of [CEDAW] and to the array of provisions on equality and access to justice in the other relevant treaties, and should be assessed during country visits by the Working Group.”

These substantive and procedural recommendations align with the positions advocated for by the GQUAL Campaign. In particular, GQUAL has advocated for the involvement of the WG on discrimination to monitor State practices during visits and in their country reports to ensure compliance with the principle of gender parity when assessing women’s right to participation in international affairs without discrimination. Additionally, GQUAL has requested the CEDAW Committee to assess women’s underrepresentation in international decision-making by monitoring the implementation of Article’s 8 obligations, in accordance with the reporting procedure under Article 18 of CEDAW. The CEDAW Committee’s interpretation of Article 8 through its Concluding Observations and its General Recommendations is vital to understanding the practical implications and obligations deriving from that provision, and key to ensuring that State Parties change their domestic and international approaches regarding women’s equal participation in international organizations.

The CEDAW Committee now has an unparalleled opportunity to play a central role in acting upon the Advisory Committee report, and to bring a substantial contribution to improve women’s underrepresentation in international decision-making by monitoring the substantive obligations deriving from Article 8. In addition to supervising compliance with this provision under the reporting system, the CEDAW Committee should update its General Recommendation 23 on Political and Public Life adopted in 1997 and strengthen the interpretation of Article 8, in light of the Advisory Committee report and other practices  concerning gender parity in the composition of international courts and bodies.  

The Advisory Committee report asserts that “[a]s decisions taken in international forums greatly influence national politics and, therefore, everyday life, women should have the opportunity to participate equally in these processes.” Thus, “[t]he appointment of women to international bodies is a prerequisite for women to influence, formulate, and implement international policy.” Undoubtably, this report is a step forward in highlighting the underrepresentation of women at the international sphere and articulating the aspects that need to be addressed to change that reality. However, it is now the task of the WG on discrimination and of other relevant treaty bodies, but especially of the CEDAW Committee, to refine States’ obligations on equal representation of women in international decision-making under Article 8 of CEDAW, as well as to supervise States’ compliance with those obligations, in order to bring about a substantive and sustainable change in women’s representation in international courts and bodies.