Framework for a human rights approach to womens health -
the work of the CEDAW Committee
By Dr. Charlotte Abaka (Ghana)
Vice-Chairperson of CEDAW
I. The Convention on the Elimination of
All Forms of Discrimination against Women some basic premises
The womens rights Convention is the fundamental bill of rights for women. It is unique among the existing human rights instruments in that it is exclusively concerned with promoting and protecting womens human rights on a wide range of areas and also basically operates from the fact of the global reality of patriarchy. The Convention is based on the reality of a deep-rooted and multifaceted gender inequality which exists world-wide. It therefore addresses the specific areas and forms of discrimination in and through which human rights of women are violated and/or are unavailable for womens enjoyment. In this regard, the Convention emphasises both public and private sphere relations and rights and specifically underlines the almost universal difference between de jure and de facto equality of women in the world. The Convention focuses on the social traditions, customs and cultural practices as important elements that restrict the enjoyment by women of their rights in many societies. These are identified as factors that help perpetuate de facto inequality. Subsequently, the Convention is very specific on the usage of social and cultural forces such as traditions and religions to legitimate violation of women's human rights. Likewise the Convention is clear about State parties using economic conditions and factors such as structural adjustment policies and programmes, slow economic growth rates, recessionary pressures, privatisation and the like to justify discriminatory practices against women.
It is also important to note that the Convention operates with the understanding that failures on the part of the State to remove obstacles to womens enjoyment of all their rights under the provisions of the Convention, and/or "omissions" in taking legal and other measures that would ensure womens enjoyment of all their rights are also discriminatory. This means that the Convention operates with an expanded rights conception and thus holds State parties accountable for failure to act and abuses of power by private parties.
Framework for human rights approach to womens health
A. The work of the CEDAW Committee
Article 1 of the Convention defines discrimination against women as:
"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 mental status, on a basis of equality of men and women of human rights and fundamental freedom in the political, economic, social, cultural, civil or any other field."
Article 12 requires that:
"State parties shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health services, including those related to family planning."
In the review of reports, the Committee has thus paid special attention to the obligations of State parties and actions that have been taken in the following health related areas:
Maternal and infant mortality, primary health care services for the prevention of childhood diseases, malnutrition, anaemia, sexually transmitted diseases, including HIV/AIDS and communicable diseases such as diarrhoea, malaria, tuberculosis, family planning, abortion, safe motherhood, access to and affordability of health services, health statistics, harmful traditional practices, sexual violence including rape, female malignancies, ratios of male/female medical practitioners and recently knowledge of womens human rights by health services providers as well as the law enforcement agencies. The Committee also raises questions about allocations of Government expenditure on womens health services and requesting information on the implementation of the ICPD programme of action and the Beijing Platform for Action.
Since the eighties, many States are in some transition of some sort. These may be political, economical, social, structural or other. These transformations, according to State parties reports, have had, and continue to have, immediate negative impact on the lives of the people in general and on women and children in particular, especially in the social sectors, namely health and education. When considering States parties reports, the Committee is raising questions on the effect of these on womens health, including mental health and reproductive health, and what Governments are doing to mitigate the negative effects of the policies and programmes and the transitional periods, as well as globalisation and privatisation.
At its 13th Session in 1994, the Committee introduced the practice, common with other treaty bodies, of preparing concluding comments on State parties reports. The comments comprise the Committees appraisal of each report, indicating what it considers to be its strength and inadequacies and the extent to which the State party is deemed to have implemented the Convention.
Finally recommendations and suggestions are made and the State party is requested to disseminate the comments as widely as possible.
Article 21 of the Convention entitles the Committee to formulate general recommendations. The Committee has elaborated 23 general recommendations, which essentially constitute the jurisprudence of the Convention. Several are concerned with womens health. These are recommendations on HIV/AIDS, female genital mutilation and on violence against women. Currently the Committee is at an advanced stage in the formulation of a general recommendation on health (article 12). For the first time during the process of elaborating a general recommendation, the Committee sought the inputs from United Nations bodies and agencies as well as from NGOs interested in the area of womens health. The Committee believes this will enrich the recommendation and will make the implementation of the general recommendations by Governments and NGOs much easier. The Committee intends to adopt the document during its next session in January/February 1999. The general recommendation on health will be an important document for the Commission on the Status of Women (CSW) during its 1999 Session when it will, among others, be dealing with the critical area of health of the Beijing Platform for Action.
B. Reporting process
The main objectives of the reporting process are to ensure that State parties understand their obligations under the Convention to encourage a comprehensive review of national legislation, administrative rules and policies, and procedures, as well as practices in relation to the Convention and other treaties to which they are parties to. The process should result in the integration of international human rights obligations into domestic policy-design and implementation. The intention is that reporting will not just be a formality, but a dynamic force for change. Although some members of the Committee may question critically a reporting government in a particular area, it is never meant to be confrontational. The Committee normally confines itself to pointing out the States shortcomings through a series of questions and comments and this invariably facilitates a productive dialogue.
Reports should include information on any reservations that have been made on ratification or accession to the Convention. Unfortunately, the Convention has been the subject of perhaps more reservations than any other human rights treaty and this is of great concern to the Committee. Accordingly, the Committee at its June/July 1998 Session and as its contribution to the 50th Anniversary of the Universal Declaration on Human Rights, adopted a Statement on Reservations. In fact some reservations are so broad that it is difficult to determine exactly what is being reserved. Some States parties have entered reservation to Article 2 which contains the central Commitment of parties to eliminate all forms of discrimination against women. The Vienna World Conference on human rights and the FWCW reaffirmed the Committees serious concern about reservations made by State parties to the Convention.
The large number of State parties to the Convention also means that the Committees workload is heavy. Unlike the other human rights treaties, the Convention in article 20 explicitly spells out meeting time. The General Assembly has adopted an amendment to article 20 made by the Committee, but it is yet to enter into force. Meanwhile, since July 1997, the General Assembly has agreed to allow the Committee a second Session.
The Convention does not provide a mechanism to allow individuals to submit complaints to CEDAW. However, as a follow-up to the 1993 World Conference on Human Rights in Vienna and the 1995Fourth World Conference on Women in Beijing, the Working Group of the Commission on the Status of Women, during the 1998 session, went through the second reading of the draft Optional protocol to the Convention that will provide such a mechanism.
Finally, CEDAW experts constantly seek information from the UN system, NGOs and States parties. With the assistance of the Division for Advancement of Women (DAW) and in accordance to Article 22, the Committee is still working out its modus operandi to ensure that all the available information related to the rights provided for under the Convention is obtained.
III. Some suggestions and Recommendations
1 As we get close to the climax of the 50th anniversary of the Universal Declaration on Human Rights, the 5-year review of the Vienna Plan of Action, and as we prepare for the 20th Anniversary of the adoption by the General Assembly of the Convention and the review of the implementation of the Platform for Action (Beijing 1995) in the year 2000, we all have to increase our efforts at achieving universal ratification of the Convention by the year 2000.
2 For the effective functioning of the Convention as a genuine blueprint for implementing all the rights and obligations as well as the general recommendations of the Committee, the international community has to encourage State parties to narrow their reservations and at best to remove them.
3 The issue of human rights approach to womens health is not limited to article 12. It is important to identify each right, analyse the gender dimensions and carefully examine the impact of each right on every aspect of womens health throughout their life cycle. For example, article 7 of the Convention gives the right to participation in public life and political decision-making. The effective implementation of this right would mean the involvement of women in designing and implementing national health policies and programmes. This will obviously lead to improvements in womens right to health. Another example will be the application of the right to life. Through the implementation of positive measures, maternal health could be protected. In this regard, the CEDAW Committee must look beyond the Convention and identify the linkages between womens health and other human rights treaties.
4 The situation of minority women, migrant women and women with disabilities must be specifically considered because they may face additional risks to their health by reason of their vulnerability. Of course aged women must not be excluded Review of some State parties reports indicate that some minority women undergo forced sterilisation while others suffer from unequal access to health care services.
5 State parties should exercise their capacity to object to reservations which are incompatible with the object and purpose of the Convention.
6 Disseminate widely the concluding comments of the Committee.
7 Governments should be encouraged to ensure that the delegations that present the reports have appropriate seniority and expertise to undertake a dialogue with the Committee.
8 Develop close collaboration with the relevant country specific or thematic rapporteurs. This will make the request by the Committee for a report on the "exceptional" basis not necessary.
9 Article 18 of the Convention obliges all State parties to provide an initial report to the Committee within the first year of ratification and subsequent reports at least every four years. Failure to fulfil reporting requirements should be seen as constituting discrimination.
10 Article 2 of the Convention requires States parties to:
"condemn discrimination in all its forms, agree to pursue by all appropriate means and without delay, a policy of eliminating discrimination against women." Expansion of the analysis of this Article should also mean that lack of support for the draft optional protocol to the Convention constitutes discrimination.
11 UN Agencies and Bodies should make use of the vast knowledge of experts particularly at the regional and national levels.