Byrnes, Andrew; Graterol, Maria Herminia; Chartres, Renee --- "State Obligation and the Convention on the Elimination of All Forms of Discrimination Against Women " [2007] UNSWLRS 48

Last Updated: 5 May 2008

STATE OBLIGATION AND THE CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN[1]

Andrew Byrnes[2], María Herminia Graterol[3] and Renée Chartres[4]

Abstract

The interpretation of the content of the obligations of a State party to a human rights treaty is a critical step in working towards the implementation of the human rights guaranteed by the treaty. The last twenty years have seen significant developments in thinking about the nature of the State’s obligations under human rights treaties; these have been partly the result of the extensive practice under those treaties and have contributed significantly to the elaboration of that practice.

Based on a background paper prepared for an expert group meeting on the subject, this paper explores the nature, scope and content of obligations under the Convention on the Elimination of All Forms of Discrimination against Women, in particular the general obligations contained in the Convention, against the background of a decision by the treaty’s monitoring body, the Committee on the Elimination of Discrimination against Women, to elaborate a general recommendation on that subject. It draws on the text of the Convention, as well as on the extensive practice under it and under other UN human rights treaties. The outcome document of the expert group meeting, and relevant material from the practice of the other treaty bodies, appear as Annexes to the paper.

1. INTRODUCTION

1. The last quarter of a century has seen significant developments in thinking about the nature of the obligations assumed by States when they become parties to human rights treaties, which have resulted in a more sophisticated understanding of the normative content of those treaties and of the practical measures needed to ensure the full enjoyment of the rights guaranteed by them. The United Nations human rights bodies (Charter-based, treaty-based, and the various agencies), regional human rights institutions, and national institutions have all contributed to these developments. In the context of the Convention on the Elimination of All Forms of Discrimination against Women (the CEDAW Convention), the Committee on the Elimination of Discrimination against Women (the CEDAW Committee), States parties to the Convention, activists and commentators have also been engaged in this process, with a primary focus on developing an understanding of the content of the Convention and the steps needed to implement it effectively, though also taking into account developments elsewhere in the international human rights system.

2. Women’s human rights advocates working with the CEDAW Convention have given considerable attention to the concept of “State obligation” under the Convention. In its tone and emphasis the use of this term goes beyond what an international lawyer might understand by “the obligations of the State” under the Convention: while it includes that formal legal content, the term has also been deployed as an educative and advocacy tool, to underline the fact that ratification of the Convention brings with it not just formal international legal obligations on the international plane, but the entitlement on the part of the population of the State party to demand political and moral accountability from the State in relation to its implementation of the Convention.

3. The decision of the CEDAW Committee to elaborate a General recommendation on article 2 of the Convention is a timely opportunity for drawing together the broader developments in relation to the nature of States’ obligations under human rights treaties and linking them more clearly with the framework of the CEDAW Convention in light of the practice of the CEDAW Committee and other relevant bodies.[5]

4. The purpose of this paper is to identify the major issues relevant to the question of “State obligation” in the context of the CEDAW Convention and the provision of an overview of the practice of the CEDAW Committee and other relevant bodies on these issues. It is intended as a discussion paper, and does not purport to be either comprehensive or definitive in its coverage.[6]

5. Combining discussion of “State obligation” under the CEDAW Convention with an analysis of article 2 of the Convention requires consideration of two related sets of issues. The first set of issues concerns the various formulations of obligations in different articles of the Convention and how the jurisprudence and analysis of the nature of human rights obligations relate to those different formulations (for example the obligations “to take (all) appropriate measures” compared with the obligations “to accord” or “to ensure” non-discrimination in a particular area). Here we need to address such issues as how the immediate implementation/progressive realization dichotomy, and the framework of obligations to respect, protect and fulfil rights, relate to the provisions of the CEDAW Convention.

6. The second set of issues concerns the specific content of those articles of the CEDAW Convention which may be characterised as “general obligations”, that is, those which set out obligations assumed by the State which apply broadly across the areas covered by the Convention. These would include articles 1, 2, 3, 4, 5 and 24, although the focus will be on article 2. Specific issues here are what the individual paragraphs of article 2 require, both so far as the legal nature of the obligation is concerned, but also the concrete steps necessary or desirable to achieve the goal set out.

7. Thus, the goal is both to relate the current analytical frameworks of the nature of human rights obligations to the specific formulations of State obligation in the CEDAW Convention and, based on the past and best practice of the CEDAW Committee (and States parties to it) and of the other human rights treaty bodies, to indicate how the specific provisions of article 2 can be given effect to.

8. This discussion paper is divided into the following sections:

• an overview of the bodies of international law relevant to the issue of State obligation under the CEDAW Convention
• a review of recent developments in analysing human rights treaty obligations (in particular the tripartite typology of the obligation to respect, protect and fulfil rights)
• a description of the implications of the status of the Convention as an international treaty for State obligation under the Convention (including issues of territorial application)
• a brief description of some of the most important recent developments in the practice of the UN human rights treaty bodies relating to State obligation generally and in relation to the acts of non-State actors
• an examination of the different categories of obligation contained in the CEDAW Convention
• an examination of the content of the general obligations contained in the CEDAW Convention.

2. THE CEDAW CONVENTION AND OTHER BODIES OF INTERNATIONAL LAW

9. From the perspective of international law, the CEDAW Convention is first and foremost a treaty, an international legal instrument under which States parties undertake to take particular steps or to achieve specified results. These undertakings, accepted in the exercise of the State’s sovereign power to enter into international treaties, are thus formally binding on the State as a matter of international law. Like most other human rights treaties, the CEDAW Convention contains obligations expressed generally to apply to all areas of social life covered by the treaty, as well as particular obligations relating to specific fields or issues.

10. In explicating the nature of State obligation under the CEDAW Convention, the Convention’s status as an international treaty means that we need to look not only to the language of the treaty itself and practice under it, but also to take into account other bodies of international law. These include the law of treaties, the law of State responsibility, international human rights law, and general international law (there is plainly overlap between these bodies of law).

11. The law of treaties is the body of international rules and principles which regulates the conclusion of treaties, their entry into force and termination, the interpretation of their provisions, the permissibility and validity of reservations, and the relationship between different treaties to which a State is party (among other matters). The main reference-point for these rules and principles is the Vienna Convention on the Law of Treaties 1969, which is generally accepted as embodying customary international law on most of these matters and therefore would apply to all States parties to the CEDAW Convention in their approach to interpreting and applying the Convention (whether or not a particular State party is also a party to the Vienna Convention).

12. The second relevant body of law is the international law of State responsibility. This describes and regulates in general terms the responsibility or liability of the State under international law. Broadly, it stipulates the circumstances under which a State may be held liable for acts or omissions which constitute a failure to fulfil an international obligation under a treaty or under customary international law: this involves indicating the persons for whose acts the State will be responsible, the liability of the State in relation to the acts of private persons, and the consequences of a failure by a State to fulfil its international obligations. The most recent authoritative restatement of the law of State responsibility can be found in the Articles on the Responsibility of States for Internationally Wrongful Acts¸ adopted by the International Law Commission in 2001 and noted by the UN General Assembly in December of that year.[7]

13. A third body of relevant law and practice is international human rights law generally. The practice of States and the responsible supervisory organs under other UN human rights treaties and regional human rights treaties sheds considerable light on a range of issues relevant to CEDAW, including issues of State obligation, the content of specific norms, and procedural issues.

14. Finally, the rules and principles of general international law developed in other areas may also be applicable to the interpretation and implementation of the CEDAW Convention and other human rights treaties.

3. THE PRACTICE OF OTHER UN HUMAN RIGHTS TREATY BODIES ON THE QUESTION OF STATE OBLIGATION

15. Other international human rights bodies – including the other UN human rights treaty bodies and the regional human rights bodies – have given considerable attention to the issue of the nature of the obligations under their respective treaties. While the CEDAW Convention must be interpreted in the light of its specific wording, object and purpose, and its context, these other sources are important resources to take into account, for a number of reasons. While they have been developed in the context of other instruments with their own specific wording and history, many of the treaties contain similar language and concepts to those of the CEDAW Convention, and address problems relating to interpretation and practical implementation of human rights treaties which are faced under all the treaties. The principles applied by the other treaty bodies when interpreting provisions comparable to article 2 of the CEDAW Convention are also similar to those employed by CEDAW in its analysis of that article. Furthermore, given the interdependent nature of many of the rights in the CEDAW Convention and those in other conventions when it comes to the elimination of discrimination against women, the effective implementation of other conventions (for example, the Convention on the Rights of the Child) will contribute to the achievement of some of the goals of the CEDAW Convention. Accordingly, it is useful to encourage the development of parallel and consistent approaches to interpretation, though this does not necessarily mean identical interpretations, as each treaty has its own specific provisions and history. The various UN human rights treaty bodies have benefited from the experience of the other treaty bodies, and the efforts to harmonise the work of the treaty bodies have been enhanced by the way in which the treaty bodies have increasingly begun to draw on each other’s work.

3.1. Milestones in the interpretation of state obligation by other treaty bodies

16. The other UN treaty bodies have addressed many of the issues which have concerned the CEDAW Committee, both in relation to the nature of States parties’ obligations, and the specific content of the general obligations under the other treaties. The contributions by the other treaty bodies to the understanding of State obligation under the UN human rights treaties is to be found most readily in the general comments and general recommendations of those committees, both those focusing on general issues but also in those relating to specific rights. Guidance may also be found in other aspects of the practice under those treaties including in the concluding observations of other committees and their dialogues with State parties, their reporting guidelines, and in their views expressed under the various communications procedures. The following are some of the landmarks in relation to the issue of State obligation.

17. In 1990 the Committee on Economic, Social and Cultural Rights (CESCR) adopted its General comment No 3 (1990) on “The Nature of States Parties’ Obligations”.[8] Almost a decade later, it elaborated two additional general comments on further aspects of the same issue, General comment No 9 (1998) on “The Domestic Application of the Covenant”[9] and General comment No 10 (1998) on “The Role of National Human Rights Institutions in the protection of Economic, Social and Cultural Rights.”[10] Due to the specific wording of the provisions relating to the obligations of States in the International Covenant on Economic, Social and Cultural Rights (ICESCR), these general comments clarify elements that could be reinforced and built upon by the CEDAW Committee in its General recommendation on article 2.

18. In 2004, the Human Rights Committee (HRC) adopted a comprehensive general comment, General comment No 31 on “The Nature of the General Obligation Imposed on States Parties to the Covenant”, which replaced a relatively brief and very early general comment on article 2 of the ICCPR adopted in 1981.[11] General comment No 31 needs to be read in conjunction with two other general comments of the Committee, General comment No 18 (1989) on “Non-discrimination”[12], and General comment No 28 (2000) on “The Equality of Rights between Men and Women.”[13] Together, these general comments on equality, non-discrimination and State obligation reaffirm and uphold fundamental principles of treaty implementation which also underpin the CEDAW Convention.

19. While the first two general recommendations of Committee on the Elimination of Racial Discrimination (CERD) adopted in 1972 address States parties’ obligations under the Convention on the Elimination of All Forms of Racial Discrimination (CERD Convention), they are very brief.[14] A more thorough analysis of specific components of implementation of the CERD Convention followed in 2005, when the Committee adopted General recommendation No XXI on “The Prevention of Racial Discrimination in the Administration and Functioning of the Criminal Justice Systems”.[15] This is the most detailed attempt by a treaty body to date to canvass all the policy and legal steps/obligations that relate to access to justice for marginalised groups.

20. Finally, in 2003 in its General comment No 5 on “General Measures of Implementation of the Convention on the Rights of the Child”, the Committee on the Rights of the Child (CRC) built on principles relating to the domestic dimensions of legal obligations under international human rights law.[16] In this general comment, the Committee also provided an expansive analysis of steps, measures and means that may be adopted by States Parties. This general comment (and a number of the others mentioned here) is included in Annex 1 to this background paper because it outlines practical components of policies and programs that the CEDAW Committee has often referred to as “enabling conditions.” Furthermore, General comment No 5 reaffirms the CRC’s General comment No 2 (2002) on “The Role of Independent National Human Rights Institutions in the Protection and Promotion of the Rights of the Child”.[17]

4. THE CEDAW CONVENTION, THE LAW OF TREATIES AND DOMESTIC LAW

21. The status of the CEDAW Convention as an international treaty to which States formally become parties has a number of implications, most of them well-known but worthwhile restating. First of all, the provisions accepted by the State party when ratifying, acceding or succeeding to the Convention are formally binding on it as a matter of international law. Although a State has the sovereign right to decide whether or not it becomes party to a treaty, when it does so, it has limited any pre-existing sovereign rights it may have had to act inconsistently with the treaty (at least until it validly withdraws from the treaty and to the extent that it is not bound by a similar rule under another treaty or under customary international law). Thus, a State party to the CEDAW Convention has, by the voluntary exercise of its sovereignty, limited that sovereignty, and must comply with the treaty’s provisions. That fundamental principle is reflected in article 26 of the Vienna Convention on the Law of Treaties, which provides:

“Every treaty in force is binding upon the parties to it and must be performed by them in good faith.”

22. While the individuals and groups whose rights are affected by the conduct of a State party have an obvious interest in the State’s compliance with its treaty obligations, other States parties also have an interest in ensuring the observance of the Convention, and are entitled to raise issues relating to its implementation either utilising the procedures laid down under article 29 of the Convention (if that provision has been accepted) or in the usual diplomatic manner or through the other avenues for the determination of the obligations of States that may be available in a particular case (such as an international judicial or arbitral tribunal).[18]

4.1. International law and national law

23. Under international law, a State’s obligation to give effect to the provisions of a treaty means that, if national laws and practices are inconsistent with the situation required by the treaty, then the State must change those laws and practices in order to fulfil its treaty obligations[19] – it is no justification for a failure to carry out a treaty obligation to say that national law requires or permits a guaranteed right to be violated. This general principle is reflected in article 27 of the Vienna Convention, which provides in relevant part:

“Internal law and observance of treaties

A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty . . ..”

24. Specific provisions requiring changes to be made to existing laws which embody or permit discrimination against women appear in a number of articles of the CEDAW Convention, including articles 2 (a), (b), (c), (d), (f) and (g).

25. Accordingly, where a State has accepted the Convention without relevant reservation, it must take the necessary steps to ensure that changes to its internal law are made, in order to bring that situation into conformity with the situation required by the Convention. (Where a State has entered a valid reservation based on an inconsistency between the Convention’s provisions and a provision of its domestic law, then the discrepancy between the Convention and national legislation will not of itself amount to a failure to fulfil a relevant treaty obligation.)

1. The organs of the State

26. All organs of the State (including in certain circumstances parastatal organisations) are potentially involved in the implementation of human rights treaties – the executive government, the legislature, and the judiciary. Equally, all levels of the State potentially have a role to play in the implementation of human rights obligations – national, provincial, and local organs – and their action or inaction may engage the responsibility of the State.

27. In its General comment No 31 the Human Rights Committee set out the position under the ICCPR -- which represents the general international legal position and is equally applicable to the CEDAW Convention:[20]

“4. The obligations of the Covenant in general and article 2 in particular are binding on every State Party as a whole. All branches of government (executive, legislative and judicial), and other public or governmental authorities, at whatever level -- national, regional or local -- are in a position to engage the responsibility of the State Party. The executive branch that usually represents the State Party internationally, including before the Committee, may not point to the fact that an action incompatible with the provisions of the Covenant was carried out by another branch of government as a means of seeking to relieve the State Party from responsibility for the action and consequent incompatibility. This understanding flows directly from the principle contained in article 27 of the Vienna Convention on the Law of Treaties, according to which a State Party 'may not invoke the provisions of its internal law as justification for its failure to perform a treaty'. Although article 2, paragraph 2, allows States Parties to give effect to Covenant rights in accordance with domestic constitutional processes, the same principle operates so as to prevent States parties from invoking provisions of the constitutional law or other aspects of domestic law to justify a failure to perform or give effect to obligations under the treaty. In this respect, the Committee reminds States Parties with a federal structure of the terms of article 50, according to which the Covenant's provisions 'shall extend to all parts of federal states without any limitations or exceptions'.”

2. Territorial application of the CEDAW Convention

28. Unlike a number of the other United Nations and regional human rights treaties under which a State party explicitly undertakes to guarantee the rights contained in the treaty to persons “within its territory” or “subject to [or under] its jurisdiction”, the CEDAW Convention makes no specific provision in relation to its territorial application.[21]

29. In these circumstances the general rule set out in article 29 of the Vienna Convention on the Law of Treaties would apply. This provides:

“Territorial scope of treaties

Unless a different intention appears from the treaty or is otherwise established, a treaty is binding upon each party in respect of its entire territory.”

Federal states

30. In some States, while the federal or central government may be the entity that represents the State on the international level, the internal constitutional division of powers may mean that only the political sub-divisions of the State may have the power to take the legislative or other measures which are required to implement the treaty.[22] Under international law the State (through the central government) is liable for any failure to carry out obligations under the treaty, even if the reason for that failure is the refusal by the sub-divisions to implement the treaty’s terms. (This may also be seen as a specific instance of the rule embodied in article 27 of the Vienna Convention that State may not rely on its internal law to justify a failure to carry out its treaty obligations.)

Application to acts outside the territory of the State

31. There are a number of circumstances in which States may engage in conduct outside their territory which affects the rights of individuals, and the issue arises of whether a particular treaty applies to those actions. Where the actions involve the exercise of functions of the State such as the issuing of passports, it is clear that the actions of the State would normally fall within the scope of the human rights treaties (for example, if a consulate refused to renew a passport because of the political activities of the citizen).

32. A more controversial issue has been whether the provisions of individual treaties apply to activities of the State in territory which does not form part of the State as such but over which the State may have effective control – for example, where a territory is leased to a State or where the State is an Occupying Power in a territory under the laws of armed conflict, or where the State exercises powers in another State’s territory for a relatively short period (for example, the involvement of State agents in a kidnapping or abduction on foreign soil).

33. In the last case, a number of international bodies have held that, where the State exercises powers of this sort on the territory of another State, its own human rights obligations will be engaged if it is in effective control of the person or situation in question.

34. Where a State is present in the territory of another State or of a territory which does not form part of a sovereign State, the Human Rights Committee (and other UN and regional treaty bodies) have taken the position that the first State is obliged to observe its human rights treaty obligations in so far as it is in “effective control” of persons or of territory. In General comment No 31 – in a passage which responded indirectly to some of the jurisdictional issues raised by the arguments of the United States in relation to the applicability of the ICCPR to Guantánamo Bay, the Human Rights Committee stated:[23]

“States Parties are required by article 2, paragraph 1, to respect and to ensure the Covenant rights to all persons who may be within their territory and to all persons subject to their jurisdiction. This means that a State party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party. As indicated in General Comment 15 adopted at the twenty-seventh session (1986), the enjoyment of Covenant rights is not limited to citizens of States Parties but must also be available to all individuals, regardless of nationality or statelessness, such as asylum seekers, refugees, migrant workers and other persons, who may find themselves in the territory or subject to the jurisdiction of the State Party. This principle also applies to those within the power or effective control of the forces of a State Party acting outside its territory, regardless of the circumstances in which such power or effective control was obtained, such as forces constituting a national contingent of a State Party assigned to an international peace-keeping or peace-enforcement operation.”

35. Both the Human Rights Committee and the International Court of Justice took a similar view in relation to the application of the ICCPR to the actions of Israeli authorities in the West Bank and Gaza.[24]

36. Although the CEDAW Convention contains no provision on the territorial scope of its application, the same principle would nonetheless apply. In its Advisory Opinion on the Wall, the International Court of Justice held that even though the International Covenant on Economic, Social and Cultural Rights did not contain a territorial clause similar to that which appears in the ICCPR, the ICESCR nevertheless applied to Israeli actions in the Occupied Territories.[25] This is a view shared by the Committee on Economic, Social and Cultural Rights (though contested by Israel on the ground that aspects of the occupation were governed solely by the humanitarian laws of armed conflict).

37. The CEDAW Committee addressed these issues in the specific context of Israel when it reviewed that country’s third periodic report in 2005.[26] In its concluding comments, the Committee stated:[27]

“23. The Committee regrets the State party’s position that the Convention does not apply beyond its own territory and, for that reason, the State party refuses to report on the status of implementation of the Convention in the Occupied Territories, although the delegation acknowledged that the State party had certain responsibilities. The Committee further regrets that the delegation did not respond to questions by the Committee concerning the situation of women in the Occupied Territories. The Committee notes that the State party’s view that the Convention is not applicable in the Occupied Territories is contrary to the views of the Committee and of other treaty bodies, including the Human Rights Committee, the Committee on Economic, Social and Cultural Rights and the Committee against Torture, and also of the International Court of Justice, which have all noted that obligations under international human rights conventions as well as humanitarian law apply to all persons brought under the jurisdiction or effective control of a State party and have stressed the applicability of the State party’s obligations under international human rights conventions to the Occupied Territories.
24. The Committee urges the State party to reconsider its position and to give full effect to the implementation of its obligations under the Convention in regard to all persons under its jurisdiction, including women in the Occupied Territories, and to provide in its next periodic report detailed information on the enjoyment by all women, including, if still relevant, women living in the Occupied Territories, of their rights under the Convention.”

38. Accordingly, the CEDAW Committee’s practice indicates that the Convention applies to States parties’ actions outside their national territory both in relation to the exercise of State powers in areas such as the issuing of passports and related exercises of national jurisdiction, and to States parties’ actions in areas which are under their effective control. It also indicates that the Committee shares the now generally accepted view (though the US and Israel are dissenting voices on this issue) that human rights treaties can still apply in situations of armed conflict, and that international humanitarian law does not automatically displace human rights law.[28]

39. States’ adherence to those obligations is a matter of legitimate concern not only to the individuals whose rights are guaranteed but to also other States, in particular to those other States who are parties to the same treaty.

3. Conduct of States parties as participants in international organisations

40. An important issue is the extent to which the Convention imposes obligations on a State in relation to its conduct as a member of an international organisation, in its conduct of its relations with other States (including development cooperation or assistance activities, or decisions to enter into new treaties or arrangements that may affect the enjoyment of rights guaranteed by the Convention), and more generally in relation to the actions of the State which may have an impact on the ability of women in other States to enjoy the rights guaranteed under the Convention.

41. While there is much contention over the extent to which international organisations are bound by international human rights obligations, there is considerable authority to suggest that States, by establishing an international organisation to deal with particular areas, do not thereby absolve themselves of their human rights obligations in those areas. Indeed, it may be argued that States should conduct themselves consistently with those obligations in their participation in the organisations and endeavour to ensure that the actions and consequences of the actions taken by those organisations do not involve violations of rights guaranteed by human rights treaties and under customary international law. Given the collective nature of these organisations and their status as independent legal entities, the content of a State’s obligation is a complex issue, particularly if an individual State is not in a position to control or even influence significantly decisions which may have the effect of violating the human rights of persons in other States.

42. Nevertheless, there is strong support for the application of the Convention to States parties’ participation in these activities. For example, the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, while dealing specifically with obligations under the ICESCR, set out a position which would be equally applicable to the CEDAW Convention:[29]

“19. The obligations of States to protect economic, social and cultural rights extend also to their participation in international organizations, where they act collectively. It is particularly important for States to use their influence to ensure that violations do not result from the programmes and policies of the organizations of which they are members. It is crucial for the elimination of violations of economic, social and cultural rights for international organizations, including international financial institutions, to correct their policies and practices so that they do not result in deprivation of economic, social and cultural rights. Member States of such organizations, individually or through the governing bodies, as well as the secretariat and nongovernmental organizations should encourage and generalize the trend of several such organizations to revise their policies and programmes to take into account issues of economic, social and cultural rights, especially when these policies and programmes are implemented in countries that lack the resources to resist the pressure brought by international institutions on their decision-making affecting economic, social and cultural rights.”

43. There is accordingly support in the practice of the Committees for taking the position that a State should ensure that its actions and the consequences of any agreement it enters into or decision it has control over the rights guaranteed in the Convention not be infringed. This would include:

• ensuring that gender impact is taken into account when designing and delivering development assistance -- the CEDAW Committee has commended a number of States for ensuring that gender was specifically taken into account the provision of development assistance,[30] and other committees have called on States parties to take into account the effect of development assistance on the realization of the rights in other treaties
• taking into account the rights guaranteed under the Convention when a State is negotiating with international financial institutions in relation to loans and other forms of financing for national projects[31]
• ensuring that when entering into international agreements relating to trade liberalization or other subjects, that these agreements do not have an adverse impact on protected rights[32]
• taking steps in their capacity as members of international organizations – including the various international financial institutions – to ensure that due account is taken of protected rights in the activities of those institutions.[33]
  

44. The CESCR has even stated,[34] in relation to the right to water, that “to comply with their international obligations in relation to the right to water, States parties have to respect the enjoyment of the right in other countries. International cooperation requires States parties to refrain from actions that interfere, directly or indirectly, with the enjoyment of the right to water in other countries.”

5. NATURE OF OBLIGATIONS UNDER HUMAN RIGHTS CONVENTIONS

45. The next two sections of this paper consist of a brief description of the nature of obligations under the human rights treaties generally in the light of recent developments in human rights jurisprudence. This discussion is followed by a discussion of the nature of the obligations under the CEDAW Convention in the light of these developments and then a detailed examination of the specific content of obligations under article 2 in the light of CEDAW’s practice and that of the other UN human rights treaty bodies.

46. While the content of the obligations of a State party under a treaty is primarily a question of interpretation of the relevant treaty provisions in the light of its object and purpose, the process of interpretation is likely to be influenced by other considerations, including interpretive practice under other treaties and the context of the treaty (including other similar or overlapping treaty obligations).

47. There has been much discussion in the general international law literature, as well as in relation to human rights treaties, of how different types of international legal obligations can be classified. One categorisation that has been drawn on in relation to human rights obligations is the distinction developed at one time by the International Law Commission between “obligations of result” and “obligations of conduct”.[35] The former category comprises those obligations which set out the goal that State parties had agreed to achieve, but largely leave the means by which that goal is to be achieved to the discretion of individual States parties. The latter category consists of those obligations which not only state the goal to be achieved, but also identify the steps or route by which States parties should move towards achievement of the goal. This classification is occasionally invoked still, but has lost some of its currency in the human rights context and more generally, partly because the classification does not always fit neatly the way in which obligations are formulated, and partly because the binary nature of the classification is conclusory rather than providing guidance in determining the content of the substantive obligation, and is the result of the process of interpreting exactly what the specific obligation means in the context of the particular treaty.

48. Other ways of classifying rights or obligations are whether they are directly applicable or capable of being given direct effect in the domestic legal order, or whether they are “justiciable” (in the sense of being sufficiently specific to be applied by a court or tribunal in the resolution of a case).

49. Another frequently used classification in the human rights area is the distinction between obligations of “immediate effect” and obligations “subject to progressive realization”. This categorisation has its origins in the distinction that was originally (and sometimes still is) drawn between civil and political rights on the one hand, and economic, social and cultural rights on the other hand – and reflected in the differing language of obligation in the ICCPR (statements of “immediately realisable” rights) and the ICESCR (obligations subject to “progressive realization”, “to the maximum of available resources”). It is also reflected in the analogous categorisation of civil and political rights as “negative rights” requiring only abstention from the State, as opposed to “positive” economic, social and cultural rights which require positive action from the State. It is now generally accepted that these distinctions involve an oversimplification and distortion of the different categories of rights – civil and political rights may need significant resources to be allocated to them to ensure full enjoyment, while many aspects of economic, social and cultural rights are immediately realisable, often without significant additional resource allocations.

50. Accordingly, a more sophisticated understanding of the nature of rights and the obligations of States to give effect to them is now well-developed. At one level, it has been recognised that even with those rights which set out goals that do need time and resources to achieve them, there may nonetheless be obligations on the State to take immediate steps to evaluate, plan and set in motion a process which will move towards the achievement of full enjoyment of those rights.

51. At another level, it has been recognised that for almost all rights guaranteed under the international human rights treaties, there are a number of dimensions which apply in varying measure to each right. The framework which has met with broad acceptance -- originally given particular prominence by the work of the then Special Rapporteur of the Sub-Commission on the Right to Food, Asbjørn Eide[36] -- is one which breaks down the components of State obligation in relation to particular rights into three broad sub-categories:[37]

• The obligation to respect
• The obligation to protect
• The obligation to fulfil

52. These categories have been applied to civil and political rights, as well as to economic, social and cultural rights, and have been developed in UN human rights treaty body jurisprudence, particularly by the Committee on Economic, Social and Cultural Rights in its general recommendations on specific rights under the ICESCR. The argument will be made below that it is both possible and useful to draw on these frameworks to elaborate the nature of State obligation under the CEDAW Convention.

53. This “tripartite” framework of State obligation has been widely used by international and regional human rights bodies in the last twenty years. An indication of the wide acceptance of this typology of state obligation can be gathered from the jurisprudence and approaches adopted by UN treaty bodies, human rights mechanisms, experts and national courts world-wide.

54. The three different types or levels of obligation have been described in the following terms:[38]

• “The obligation to respect rights requires states to refrain from any action that would interfere with citizens' enjoyment of their rights; including actions people take in efforts to realize their rights.
• The obligation to protect rights requires states to take action to prevent violations of human rights by others. This obligation involves encouraging individuals and organizations to respect the rights of others, as well as imposing sanctions for violations that are committed by private individuals or organizations.
• The obligation to fulfil rights requires states to take action to achieve the full realization of rights. These actions can include enacting laws, implementing budgetary and economic measures, or enhancing the functioning of judicial bodies and administrative agencies. Human rights laws also need to be enforced by judges who have adequate training and are supported by sufficient court staff. Other institutions, such as human rights commissions, an ombudsman, or a parliamentary commissioner, may also be established to resolve human rights conflicts.”

55. The detailed content of each of these aspects of the obligation of the State will vary depending on the specific right which is being examined.[39] However, the framework has been found very useful in explicating the content of many rights and State obligations. The next section sketches some of the components of this tripartite framework when seen from the perspective of eliminating discrimination against women.

5.1. The obligation to respect

56. Under international human rights law States must abstain from performing, sponsoring or tolerating any practice, policy or measure that violates women’s rights. Hence, arbitrary interference with or obstruction of women’s freedom to use or avail themselves of legal guarantees, services, resources as well as other opportunities and temporary special measures available through national plans for gender equality is not permissible. Moreover, the obligation to respect requires States Parties to refrain from acts that directly or indirectly hinder or deny the right of men and women to the equal enjoyment of their human rights.[40]

57. In accordance with the obligation to respect, States must recognise freedoms linked to the full enjoyment of women’s human rights and refrain from interfering with or hindering their exercise.[41] As a starting-point, the State must “respect the availability” of services, policies and programs for women. At another level, the State must also: (i) abstain from enforcing laws that result in gender discrimination or disproportionately affect marginalised groups of women; (ii) reform or repeal laws that are inconsistent with the CEDAW Convention; (iii) rescind policies, administrative rules/procedures and programmes/schemes that are inconsistent with the principles of non-discrimination and substantive equality; (iv) refrain from implementing policies that may affect the enjoyment of the rights of women in general, with particular attention to the rights of the most vulnerable/marginalised groups of women in society.[42]

5.2. The obligation to protect (or ensure)

58. The obligation to protect requires States to take steps to prevent, prohibit and address violations of women’s rights by third parties.[43] This means, for example, that the State has a duty to ensure that harmful social and traditional practices do not impede the enjoyment of the right to education by marginalised groups in society.

59. Overall, this level of obligation requires positive steps to regulate and oversee third parties through: (i) adequate legislation, (ii) effective mechanisms for complaint, (ii) appropriate remedies, (iii) comprehensive policies, (iv) coherent action plans and (v) on-going monitoring and awareness-raising.

5.3. The obligation to fulfil

60. The obligation to fulfil requires States to achieve gender equality in practice, de facto. In order to do this, States must take appropriate legislative, administrative, budgetary, judicial and other measures towards the full realization of women’s human rights.[44] Furthermore, according to Coomans, this level of obligation:

“[c]an be characterised as a programme obligation and implies a longer-term view. In general, this will require a financial input which cannot be accomplished by individuals alone. This obligation also includes setting up a general supportive legal and policy framework, which is generally thought to be a basic state responsibility.” [45]

The Human Rights Committee, the Committee on Economic, Social and Cultural Rights and the Committee on the Rights of the Child have explored the components of a policy and legal framework for the elimination of discrimination.[46]

61. Through its general comments, the CESCR has indicated that there are three additional sub-categories of the obligation to fulfil:[47]

(i) Fulfil (facilitate)
“According to the Committee’s approach in its general comments, the obligation to facilitate implies that the state must take positive measures aimed at enabling and assisting individuals to enjoy [women’s human rights]”[48] In order to be effective, measures aimed at facilitating the enjoyment of women’s human rights must be appropriate to each context. As a result, measures adopted will vary from State to State.
(ii) Fulfil (provide)
The State has a duty to take direct and active measures to ensure that women and girls are in situations when they are “unable [to do so] for reasons beyond their control” enabled to enjoy all their human rights.[49] More specifically, when groups of women are not in a position to exercise or enjoy their rights for reasons beyond their control, (e.g. due to extreme poverty or humanitarian crisis) the state is required to directly provide for the satisfaction of their basic/minimum needs.[50] This means that, in certain circumstances, the State Party must provide basic needs through government services, programs, etc.
(iii) Fulfil (Promote)
The State has a duty to promote international human rights standards that relate to women’s human rights through the provision of financial aid to third countries and through its actions in international organisations. State parties should advocate for international cooperation programmes and policies which may contribute to the realisation of women’s rights.[51]

5.4. Relationship of the tripartite framework and other classifications to the obligations contained in the CEDAW Convention

62. What, then, is the relevance of the various categorisations of rights/obligations to the nature of State obligation and the content of specific obligations under the CEDAW Convention, and how can these analyses help to enhance the effective implementation of the Convention?

63. The obligations contained in the CEDAW Convention are expressed in a variety of forms, and the relevance of the tripartite analyses depends to some extent on the wording of the individual provisions of the Convention. Many of the provisions of the CEDAW Convention are in fact specific instances of the various levels of obligation of the State to ensure equality and non-discrimination generally. For example, article 2(d) of the Convention can be seen as an aspect of the obligation to respect the right of women to equality on the basis of sex, while article 2(e) might be seen as a particular stipulation under the obligation to protect. The jurisprudence in relation to the different levels of obligation may thus provide further guidance on the measures that are required to give effect to these specific dimensions of the obligations of the State under the Convention.

64. More generally, the tripartite framework would appear to be particularly useful in interpreting more open-ended obligations, in particular the many provisions of the Convention which require the State to take “[all] appropriate measures”. Analysing these provisions in the light of the different levels of the State’s obligation may assist in identifying what is appropriate to achieve equality in a particular field.

65. Section 7 of this paper provides an overview of the different formulations of obligation in the Convention, and suggests ways in which the various frameworks may be drawn on in that context. However, before moving to that analysis, it is first necessary to consider the obligations of the State in relation to non-State actors under general human rights law and the CEDAW Convention.

6. STATE OBLIGATIONS UNDER HUMAN RIGHTS TREATIES IN RELATION TO THE ACTS OF NON-STATE ACTORS

66. The starting-point of many human rights treaties and constitutional protections of human rights is that persons need to be protected first and foremost against the actions of the State and its organs which directly affect the enjoyment of rights. Yet international human rights jurisprudence has also developed considerably in recognition of the fact that many of the threats to enjoyment of human rights may arise from the actions of non-State actors, for example, discrimination against women in the private employment market, violence against women in the family, the portrayal of stereotypes in the private media, or the sexual exploitation of and trafficking in, women.

67. Both general human rights jurisprudence and the specific provisions of particular treaties engage with the issue of the extent to which a State’s liability might arise because of its relationship to the acts of private individuals.

68. The CEDAW Convention makes it clear that it is intended to promote the equality of women and to eliminate discrimination against women not only when the discrimination is directly attributable to the State, but also in circumstances in which the denial of equality or the discrimination is the result of the actions of a non-State actor.

69. That the Convention should be read broadly in this respect appears from the explicit wording of the Convention[52] and the practice of the Committee;[53] these developments are consistent with – and indeed have contributed to -- the development of international human rights law, which has increasingly grappled with the issue of the responsibility of the State in relation to the conduct of private actors.

70. In some cases, “non-State actors” may in fact be acting as the State, or their acts or omissions may be directly attributable to the State because the State has delegated its role to the non-State actor or has authorised the non-State actor to take actions on its behalf. Accordingly, the acts or omissions of what may appear to be non-State actors may for the purposes of international law and liability under the CEDAW Convention in fact constitute the acts or omissions of the State (which is subject to a higher level of obligation in some respects than are “purely private” actors). The relevant international legal framework for determining whether the acts of a person or body which is not formally an organ of the State directly engages the responsibility of the State is the law of State responsibility – in particular the ILC’s Articles on State Responsibility. For example, a contractor running a “private” prison would probably been seen as the State for the purposes of the law of State responsibility.[54]

71. In other cases, non-State actors – for example, private individuals, corporations or other organisations – will not be acting as the State or as a delegate or authorised agent of the State when they engage in discrimination against women or violate other internationally guaranteed rights. Nevertheless, their acts or omissions may engage the responsibility of the State to ensure that persons are not subject to discrimination by private actors under general international human rights law principles and specific provisions of the Convention, such as article 2(e).

72. The ILC’s Articles on State Responsibility deal with a number of instances in which the acts of a private person or body may be considered to be the act of the State for the purposes of determining whether the act represents a violation of an international obligation of the State.

73. The first category identified by the ILC is cases in which a non-State organ is empowered to exercise elements of the governmental authority of the State, and is so acting in the circumstances in question.[55] Under this category, there are two elements; (a) the entity must have been empowered under internal law and (b) the conduct involved the exercise of governmental authority.

74. The second category is where a private person, group of persons or other non-State entity is “acting on the instructions of, or under the direction or control of the State in carrying out the conduct.”[56]

75. A third category is where the acts of persons of groups of persons who are effectively exercising government authority where the official authorities are either not functioning or permit the exercise of that authority.[57]

76. Finally, conduct which is not directly attributable to a State at the time it is engaged in may subsequently be considered an act of the State if the State adopts the conduct in question as its own.[58]

77. While the general law of State responsibility may identify for many purposes those acts which constitute acts of the State in order to assess whether it has fulfilled its international legal obligations, it is also important to examine the particular treaty provisions involved and any applicable principles that have developed under the law of human rights. These may expand what is understood to be the act of the State under general international law (or indeed restrict it). Similarly, specific human rights treaties may impose broader duties in relation to the acts of private individuals than would flow from the responsibility of the State in relation to those acts under the general law of State responsibility.[59]

6.1. Specific treaty obligations relating to non-State actors and the Convention

78. Some of the principal UN human rights treaties, such as the CERD and CEDAW Conventions, contain specific provisions setting out the obligations of States in relation to the acts of private individuals and organisations, making it plain that some or all of the rights guaranteed in the treaty are to be protected against violation by private parties. The CEDAW Convention makes it clear that the obligations of the State are not only to ensure that its organs refrain from discrimination against women themselves (article 2(d)), but also to address discrimination by non-State actors – article 2(e) requires States parties “to take all appropriate measures to eliminate discrimination against women by an person, organization or enterprise”.

79. These specific provisions reflect a general trend in human rights law relating to the obligations of the State in relation to the acts of non-State actors. Even though some of the other principal human rights treaties do not explicitly address the issue of violations by private actors, practice under those treaties has resulted in a considerable body of jurisprudence on the obligations of the States parties to them in relation to non-State actors. The obligations of the State in relation to acts of non-State actors may in general not be as stringent as the obligations of the State in relation to its own actions (and acts directly attributable to it) – see the difference in wording between articles 2(d) and (e) of the CEDAW Convention – nonetheless, they are significant.

80. The CEDAW Committee, and other treaty bodies, have drawn on both strands to develop their understanding of State obligation in this context. These developments are outlined below.

7. STATE OBLIGATIONS UNDER THE CEDAW CONVENTION

81. Under the CEDAW Convention, States parties accept a number of different obligations. These include substantive obligations relating to the elimination of discrimination, as well as procedural obligations (most importantly the reporting obligation). The substantive obligations can be classified according to their scope or coverage -- in particular obligations of general scope or obligations relating to specific subjects – as well as according to their nature (requiring immediate realisation or subject to progressive realisation). [60]

82. The content of a State party’s obligation in relation to a particular person, issue or situation may need to be understood in the light of both general obligations and the specific obligations (if any) relating to that area.

7.1. Formulation of obligations under the Convention

83. The obligations contained in the Convention are formulated in a number of different ways and these differences in wording can be of considerable legal significance. There are three principal categories of obligation, formulated as follows:

• States Parties shall ensure/shall accord/shall grant the right . . .
• States Parties undertake to . . .
• States Parties shall take all appropriate measures (in order to ensure) . . .

84. The first group of obligations and associated rights (which includes articles 7, 9(1) and (2), 15(1), (2), (3) and (4), and 16(1) and (2)) includes provisions which require the State party to take immediate and concrete action (in particular to introduce any necessary legislative changes) – in many respects they appear to be classic examples of civil and political rights guarantees. The actions required to be taken can be seen as reflecting primarily an obligation to respect the rights in question, but also as a part of the obligation to protect the rights (to the extent that the obligation to protect includes the passage of legislation which guarantees equality as a matter of law).

85. However, the CEDAW Committee has always insisted that implementation of the Convention means not just the existence of formal guarantees in law but also the practical enjoyment of the rights guaranteed, and has devoted considerable attention to identifying obstacles to the full enjoyment of formally guaranteed rights as well as practical measures that might be taken to overcome them. In this context, the tripartite model of obligation may be a useful tool – some of those practical measures might fall under the obligation to respect (for example, adopting appropriate administrative measures if officials refuse in practice to permit a women married to a foreign national to obtain a passport, notwithstanding her legal right to do so); or under the obligation to protect (to take legislative or other measures to ensure the right of political participation if, for example, political parties exclude women from membership or being nominated as candidates); or under the obligation to fulfil (for example, to undertake educational programs about the illegality of child marriage and the risks that it poses to the health of children, and to provide support for persons who have been subjected to it or who are seeking to avoid it).

86. The second major group of provisions in the CEDAW Convention comprises those under which States parties “undertake” to take specific types of action – most of these are contained in article 2. The provisions of article 2 (as well as other general obligations) will be analysed in the following section. However, the interpretation of a number of those provisions could be further developed by applying this analysis. For example, the requirement in article 2(a) to embody the principle of equality in constitutional or other legislative provisions and to ensure the practical realization of this principle has explicit elements of the obligation to respect and to protect, but the requirement to ensure the practical realization of equality goes beyond the formal legal steps which are identified, and could be expanded on by considering other dimensions of the obligation to protect as well as the obligation to fulfil.

87. The third major group of provisions consists of the obligations “to take (all) appropriate measures” to achieve particular goals. There are various formulations of the provisions, some of them (for example article 6) stating that a State party shall take “all appropriate measures” to achieve a particular goal, while others both set out the goal of eliminating discrimination in a particular field, but then also go on to list specific goals within that field (for example, articles 10 and 11).

88. While each of these obligations needs to be interpreted in relation to the general or specific goals mentioned, answering the question of what constitutes appropriate measures in a particular case might be assisted by adopting a tripartite analysis to identify the various elements of appropriate measures.

89. This analysis may be particularly useful in the context of the broadly worded obligations in articles 3 and 24, especially in so far as they relate to eliminating discrimination in areas which are not explicitly covered by the Convention, but which are included in its coverage by virtue of the definition of discrimination against women in article 1 and the references to all fields of life in articles 3 and 24. For example, the content of the obligation to eliminate discrimination in relation to the right to liberty and security of the person, or in relation to the right to life (among others) could be explicated drawing on this framework, in addition to the specific provisions of article 2 which address certain elements of the tripartite analysis.

8. GENERAL OBLIGATIONS UNDER THE CEDAW CONVENTION

90. The previous discussion has related to obligations accepted by States parties to the Convention, whether those obligations are general in nature or specific. This section focuses in particular on the provisions of the CEDAW Convention which embody general obligations, that is, obligations not specifically tied to one of the particular fields dealt with in articles 6-16 of the Convention but applying more generally across the field of operation of the treaty. The articles which set out general obligations of this type are articles 2, 3, and 24 – articles 4 and 5 could also be included in this category,

91. Articles 3 and 24 are often given little attention in discussions of the CEDAW Convention, and the relationship between them is not entirely clear as a result of somewhat infelicitous drafting. Article 3 requires States to take “all appropriate measures” to ensure the full enjoyment of rights on a basis of equality, while article 24 requires States to take “all necessary measures at the national level” to achieve the full realisation of the rights in the Convention. While there may be some difference in the coverage of the provisions, the content of article 24 seems largely to be subsumed by article 3.

92. Article 3 is important because it is a general statement which, together with article 2 and the broad definition of “discrimination against women” contained in article 1, underlines the fact that the CEDAW Convention requires States to work towards the elimination of discrimination against women in the enjoyment of all fundamental human rights and freedoms.[61] In other words, the Convention imposes a clear obligation to work towards equality on the basis of sex in relation to the many human rights and fundamental freedoms which are not specifically mentioned in the text of the Convention but which are recognised under other treaties and customary international law, and arguably even under some instruments which might not have treaty or customary international law status. These rights include, for example, the right to life, the right to be free from torture, the right to freedom of expression, the right to privacy, the right to freedom of opinion, belief and religious expression, the rights of members of minorities, the right to adequate housing, and the many rights guaranteed under international humanitarian law.

93. This understanding of the broad coverage of the Convention has been at the heart of CEDAW’s approach for many years. It appears clearly in General recommendation 19, in which the Committee referred to a number of rights not specifically mentioned in the Convention which may be violated by the subjection of women to violence in the family, in the community or at the hands of the State, and makes it clear that the State party’s obligations extend to eliminating the inequality involved in the enjoyment of these rights that gender-based violence entails.[62] It also appears in the Committee’s consideration of the issue of intersectionality (that is, its addressing the position of particular groups of women – such as women belonging to ethnic minorities or indigenous peoples, migrant workers, women with disabilities, all of whom may be subject to multiple discrimination)[63] and other cross-cutting themes.

8.1. Article 2 of the Convention

94. Article 2 has a number of elements. In the chapeau to the article, States parties:

• formally condemn discrimination against women in all its forms
• agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women.

95. The first part of the chapeau is an important symbolic statement but also a powerful expression of the international community’s attitude towards discrimination against women (the language of condemnation is also used in the context of racial discrimination). The second part involves a clear legal obligation (“agree”) to adopt a policy of eliminating discrimination and to work towards the implementation of that policy promptly.

96. The final part of the chapeau also involves a clear legal obligation (“undertake”) linked to a number of specified policy outcomes. In some cases, the obligation is specific, required to be implemented immediately, and capable of being so implemented (paragraphs 2(a), (b), (c), (d), and (g)); others allow a greater discretion to the State party to determine the measures appropriate to achieve the goal (and may or may not be seen as immediately implementable).

97. The reference in a number of articles to the requirement to adopt “(all) appropriate measures” introduces a level of flexibility and thus uncertainty into understanding what the obligation in question means and the pace at which the measures are to be taken. For example, in paragraph (a), it is clear that legislative measures are required, as well as other measures which will serve the goal of eliminating discrimination. Paragraph (b) and (f) are to similar effect (as is article 3). In these cases the challenge is to identify what measures are appropriate to particular circumstances.

98. In paragraph (e), no mention is made of legislative measures – the reference is only to “all appropriate measures” – but it is clear that legislative measures of some sort (in addition to any other measures) would be required, particularly in light of the requirement in paragraph (c) to establish legal protection of the rights of women and effective protection.

9. THE CONTENT OF THE GENERAL OBLIGATIONS IN THE LIGHT OF CEDAW’S PRACTICE AND THE PRACTICE OF OTHER HUMAN RIGHTS TREATY BODIES

99. The following section draws on the practice of CEDAW (in particular based on a review of the Committee’s concluding comments in the period 2000-2006 and its general recommendations) and the practice of other committees in order to identify required action and best practice in relation to general obligations and general measures of implementation of the CEDAW and other Conventions.

100. Many of the specific requirements for action are contained in the text of the Convention itself, while others have been derived from the general obligations in articles 2, 3 and 24 (and the equivalent provisions under the other conventions).

9.1. States Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women

1. Adoption of a comprehensive policy

101. The CEDAW Committee sees article 2 as setting out critical elements for the implementation of the Convention. The Committee has taken the view that article 2 requires the State party to ensure that all branches of government are responsible for the implementation of an agenda that promises respect for the equal rights of women with men. It has also indicated that States parties must adopt an overall, integrated policy for the practical realisation of gender equality,[64] and that States parties’ reports to the Committee should explain why particular measures have been chosen and how they are the most effective or appropriate means to advance the objectives of the Convention. As part of the obligation to adopt and implement a coherent policy, States parties are obliged not simply to initiate legislative, policy and specific measures designed to ensure compliance with the Convention, but also to assess and evaluate these initiatives. Emphasis should be placed on the how effective such measures are, measured against preset time frames within which the State Party intends to achieve its goals.[65] Mechanisms for the regular evaluation and qualitative and quantitative assessment of progress in the implementation of the national strategy for the advancement of women is essential. The provision of sex-disaggregated statistics is therefore critical to the effective evaluation of States parties’ implementation of the Convention.[66] The Committee has also suggested the use of gender-monitoring checklists as a possible way to ensure compliance with the obligations imposed under the Convention.

2. Allocation of resources

102. The Committee has also stressed the need for States parties to allocate sufficient resources to those programmes aimed at advancing the position of women. It has commended States on the use of gender analysis in budget planning and in assessing the impact of budgets.[67]

3. National machinery and structures

103. Article 2 has been interpreted by the CEDAW Committee as requiring all branches of government to be responsible for the implementation of an agenda that respects the equal rights of women and men. States parties are obliged to regulate the rights under the Convention not only in relation to their own organs, but also to the actions of private persons and institutions.

104. At present, States Parties must provide detailed information to CEDAW on the administrative and competent authorities that have mandates, powers and authorities over the implementation of provisions of the Convention.[68] This means that although the national machinery on women may take a leading role, it is acknowledged that the domestic implementation of the Convention requires coherent and concerted efforts at all levels of government and among civil society.

105. It is clear that the implementation of an action plan for women’s equality requires exchange of information, consultation, participation and dialogue among government bodies and civil society as well as within levels of government.[69] The Committee has also stated that States must “[p]rovide timely, comprehensive and transparent information concerning all planned or current actions, their evaluation and their outcomes in order to build confidence and build cooperation among the various sectors and institutions of civil society.”[70] Furthermore, groups of women marginalised on the basis of gender and other grounds of discrimination should be consulted, in particular, in regard to unintended discriminatory effects of laws and policies. For this reason, women should be involved in monitoring the implementation of the Convention.

106. In this regard the Committee on the Rights of the Child has expressed the view that:[71]

“The Committee believes that effective implementation of the Convention requires visible cross-sectoral coordination to recognise and realise [women’s] rights across Government, between different levels of government and between Government and civil society... Invariably, many different government departments and other governmental and quasi-governmental bodies affect [women’s] lives and the enjoyment of [women’s] rights. Few, if any, government departments have no effect on [women’s] lives, directly or indirectly. Rigorous monitoring of implementation is required which should be built into the process of government at all levels but also independent monitoring by national human rights institutions, NGOs and others.”

4. National machinery for women

107. In one of its first General recommendations¸ the CEDAW Committee urged States parties to “establish and/or strengthen effective national machinery, institutions and procedures, at a high level of Government, and with adequate resources, commitment and authority to (a) advise on the impact on women of all government policies; (b) monitor the situation of women comprehensively; and (c) help formulate new policies and effectively carry out strategies and measures to eliminate discrimination”, among other functions.”[72] Since that time the Committee has continued to stress the importance of a central policy-coordinating body within the executive government in order to carry out these types of functions.

108. Under article 2(a) the CEDAW Committee has encouraged States parties to establish National and State Commissions for Women with the responsibility for law reform and the tackling of discriminatory practices.[73] (In some countries these bodies might constitute the national machinery, in others, that would not necessarily be the case.) In particular these national and state bodies need to be:

• Inclusive, including representatives of government and non-government from various sectors
• Interactive with NGOs and grass-roots level movements supporting women’s rights[74]
• Formally integrated with international, state regional, local groups.
• Supported by adequate financial and human resources, i.e. not staffed by volunteers.

109. The Committee has also suggested that these bodies might also be able to make recommendations for law reform and be given others powers to intervene and hear complaints about discrimination.[75]

110. A general review of the reporting guidelines, issues raised by the Committee before/during the constructive dialogue as well concluding comments points to the following conclusions. At a minimum, as part of the core obligations undertaken by States parties to CEDAW under article 2, the national machinery, institutions and procedures for the implementation of CEDAW should coordinate the development and implementation of a comprehensive national strategy on the implementation of CEDAW which also includes state-level governments.[76] In order to achieve effective implementation the national machinery, institutions and mechanisms for the advancement of women should meet the following criteria:

• These bodies should be granted autonomy, powers and human and financial resources. More specifically, in regard to autonomy, it has been stressed that independence is very important for bodies and mechanisms responsible for investigating violations of women’s human rights and addressing systemic barriers.[77]
• In regard to financial resources: a reasonable percentage of the national budget should be allocated to the elimination of discrimination against women and gender equality. Furthermore, a concern raised by the CEDAW Committee and also echoed by the CSW in recent years is that some States that consider they have met “gender mainstreaming” targets, have reduced funding for the Offices of the Status of Women, Women’s Equality Commissions and other bodies with similar mandates. The Committee has considered this has “weakened role of the national machinery for the advancement of women in providing policy advice on equality.”[78]
• There should be regular interaction between the Minister for Women and other governmental and quasi-governmental institutions, bodies and mechanisms with similar mandates, including at the local level. This interaction and coordination of action should be aimed at achieving concerted, coherent, measures and steps for the implementation of a national plan of action on the CEDAW Convention. The Women’s machinery is also responsible for making sure there are focal points within federal and local government to ensure appropriate use and direction of existing resources across all sectors and levels.[79]
• There must be mechanisms for oversight and consultation that are in place within the political system to ensure a uniform and consistent implementation of the rights of women protected by the Convention.[80]
• There should also be effective liaison mechanisms to monitor gender-mainstreaming within the Government at the State level and with the governments at the level of the entities.[81]
• These bodies are also responsible for developing the capacity of government bodies and authorities in regards to women’s human rights in general and the CEDAW Convention in particular.

111. Other treaty bodies have also explored the role of the national machinery, institutions and mechanisms for the implementation of specific treaties. From this review, the machinery and institutions responsible for the respect, promotion, protection and fulfilment of women’s human rights should also:

• Coordinate economic and social policies, budget allocations and trends, arrangements for budgetary impact analysis[82]
• Contribute to strengthening the mandate of national or official institution/machinery with responsibility for implementing Covenant rights or responding to complaints of violations[83]

112. In addition, the CEDAW Committee commented in its General Recommendation No 25 (Temporary Special Measures): [84]

“Under article 3, States parties are invited to report on the institution(s) responsible for designing, implementing, monitoring, evaluating and enforcing such temporary special measures. Such responsibility may be vested in women’s ministries, women’s departments within ministries or presidential offices, ombudspersons, tribunals or other entities of a public or private nature with the requisite mandate to design specific programmes, monitor their implementation, and evaluate their impact and outcomes...”.

113. Where there are various institutions or organisations with the responsibility for addressing women’s rights in the national machinery, the Committee recommends that the State party clearly defines the mandates of such groups, their relationship to each and the level of interaction between them.[85]

5. The role of national human rights institutions

114. While CEDAW and a number of the other treaty bodies have stressed the need both for a body or office within executive government with the responsibility for policy coordination in relation to the rights covered by the treaties,[86] they have also underlined the importance of some form of independent agency outside government which can monitor and scrutinise the performance of government and others in the implementation of the Convention. The emergence of National Human Rights Institutions (NHRIs) over the past 15 years as an internationally recognised type of institution with a special role in relation to the national implementation of human rights has led a number of the treaty bodies to refer to the desirability of establishing such bodies, and the advantages of conferring certain monitoring and implementation functions on them.

115. For example, the Committee on Economic, Social and Cultural Rights in its General comment No 10 (1998) noted that “national institutions have a potentially crucial role to play in promoting and ensuring the indivisibility and interdependence of all human rights”, and urged States parties to the ICESCR to ensure that economic, social and cultural rights fell within the mandates of these bodies. The Committee on the Rights of the Child noted in its General comment No 2 (2002) that it “considers the establishment of such bodies to fall within the commitment made by States parties upon ratification to ensure the implementation of the Convention and advance the universal realization of children’s rights.”[87] This General comment contains an extremely important and detailed discussion of the rationale for NHRIs and the appropriate composition and powers of such bodies (largely endorsing the Paris Principles[88]). The Committee revisited the issue in its General comment No 5 (2003), noting the importance of NHRIs and underlining the fact that they “[a]re complementary to effective government structures for children: the essential element is independence.”[89]

116. In the recently adopted Convention on the Rights of Persons with Disabilities[90] the need for different types of national institutions – within and outside the executive government – was made clear in article 33, which provides:

”National implementation and monitoring

1. States Parties, in accordance with their system of organization, shall designate one or more focal points within government for matters relating to the implementation of the present Convention, and shall give due consideration to the establishment or designation of a coordination mechanism within government to facilitate related action in different sectors and at different levels.
2. States Parties shall, in accordance with their legal and administrative systems, maintain, strengthen, designate or establish within the State Party, a framework, including one or more independent mechanisms, as appropriate, to promote, protect and monitor implementation of the present Convention. When designating or establishing such a mechanism, States Parties shall take into account the principles relating to the status and functioning of national institutions for protection and promotion of human rights.
3. Civil society, in particular persons with disabilities and their representative organizations, shall be involved and participate fully in the monitoring process.”

117. Until recently, the CEDAW Committee had not had the opportunity to directly focus on these institutions. However, this trend is changing. For example, in its 2006 concluding comments on the sixth periodic report of Mexico, the Committee recommended “[t]hat the National Commission on Human Rights is provided with necessary financial resources and personnel well-trained in the gender equality issue to effectively fulfil its function in regard to monitoring...”[91]

118. All States parties that have national and state-level human rights institutions should ensure that mandates and resources contribute to building expertise on all aspects of discrimination against women. In this regard, human rights institutions should be responsible for ensuring there are appropriate and “victim-friendly” mechanisms in place that take into account the needs of marginalised groups of women and girls. According to article 2 of the CEDAW Convention, human rights institutions must promote and guarantee means for protection and redress of the human rights of women. States parties and government institutions cannot limit the respect, protection, promotion and fulfilment of CEDAW on the basis on government systems or legal culture. Likewise, States parties should not place too much focus on economic situation or culture/traditions as limitations.

119. As noted by the Committee on the Rights of the Child in its General comment No 2, the Paris Principles are the “minimum standards for the establishment, competence, responsibilities, composition, including pluralism, independence, methods of operation and quasi-judicial activities of such national bodies.”[92]

120. Consequently, the CEDAW Committee may wish to take into account the following when considering the scope of States parties’ institutional obligations under the Convention:

(a) Since the adoption of General Recommendation No 6 on “Effective Machinery and Publicity” (1988)[93] there have been important developments regarding the structures, mandates, and operation of national machinery, institutions and mechanisms for the advancement of women at the national level. As the functioning and architecture of public governmental structures and quasi-governmental bodies continue to be streamlined, the coordination of efforts for the implementation of the Convention has gained more importance. Moreover, since a significant number of States parties also stress that gender and human rights have been mainstreamed, the trends relating to institutional obligations identified by the Committee have shifted since the 1990s. In this regard, for example, while the national machinery for the advancement of women is needed, the role of human rights institutions in the implementation of CEDAW needs to be clarified.

(b) While it is important for the CEDAW Committee to stress institutional obligations in the forthcoming general recommendation on Article 2, there may be a need for a supplementary general comment that focuses on public institutions. The additional general comment could further the analysis of national measures of implementation in light of all substantive provisions of the Convention, with a specific focus on Arts 1-5 and 24.

9.2. (a) To embody the principle of the equality of men and women in their national constitutions or other appropriate legislation if not yet incorporated therein and to ensure, through law and other appropriate means, the practical realization of this principle

121. A number of issues arise under this article. The Convention is clear in its requirement that the principle of equality be constitutionally or legislatively guaranteed in a State party, and has consistently called on States parties to ensure that appropriate amendments are made to the Constitution and relevant legislation, and that the national law concept of discrimination either reproduce or at least reflect the definition in article 1 of the Convention.[94] The Committee has made this recommendation even in case in which the Convention itself forms part of national law (even with constitutional status).[95] The Committee has not interpreted the Convention as obliging a State party to incorporate the treaty or its provisions as a whole directly into domestic law (although it has welcomed such incorporation), and in any event is of the view that specific, detailed laws giving effect to the right of equality are required (which paragraph 2(b) expressly provides for).[96] For example, in its Concluding comments on Samoa the Committee “urge[d] the State party to take measures necessary to ensure that the Convention becomes fully applicable in the domestic legal system, either through domesticating it in full or by adopting appropriate legislation”.[97] This is consistent with the position taken by a number of the other committees, who have welcomed the incorporation of the terms of the treaty into domestic law (though not insisted that all of the provisions are required to be incorporated), but have stressed that additional legislative protection of the rights will also generally be required.

9.3. (b) To adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women
9.4. (c) To establish legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination;

122. These two paragraphs overlap to a considerable degree, so are covered together. The Committee regularly reminds States parties of the need to have fundamental human rights guaranteed in the national constitution and the need for such rights to be enforceable in national courts.[98] The Committee has underlined the need for comprehensive legislative protection, such as the adoption of an Anti-Discrimination Act or Gender Equality Law as a means to ensure that the standards of the Convention are applicable both to non-State actors as well as to State actors. The Committee reminds States Parties that the definition of discrimination contained in such an instrument should align with that contained in article 1 of the Convention, in order to prevent any gaps emerging in the enforcement of women’s right to equality. Likewise, the provisions contained in such a legislative framework must be in compliance and follow the language of the Convention. Where the right to gender equality is enshrined in national constitutions or other human rights instruments, States parties are reminded of the need to have a specific provision stating that there shall be no discrimination either de jure or de facto on the ground of sex.[99]

123. Furthermore, it is not sufficient that a legislative framework exists. The State party has a duty to take sufficient concrete action to ensure that judges, magistrates, law enforcement personnel, employers and the legal profession and most importantly women, are familiar with these legislative reforms.[100]

124. The provision refers to “effective protection”, which must be seen as including the provision of remedies for violations of rights. The availability of a remedy which are real and accessible to the person affected is seen as a critical element of a number of the other treaties.

9.5. (d) To refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation;

125. This provision applies directly to all State acts (the acts of State organs or the acts or other persons or entities which are attributable to the State). The legislative framework referred to in paragraphs (a)-(c) plainly forms part of the measures required by the State to ensure that public officials and authorities do not engage in discrimination against women. But more is required, including the putting in place of appropriate administrative measures such as training and education, in order to prevent discrimination, and procedures for the investigation of cases in which discrimination appears to have occurred. More generally, in relation to the adoption of policies and legislation or the approval of projects, the Committee has recommended that States parties have in place procedure for assessing the gender implications of any proposed development project before giving such a project approval to proceed.[101]

9.6. (e) To take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise;

126. This provision, which is in almost identical wording to the corresponding provision in the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), is an important component of the CEDAW Convention, since it makes clear that States parties are required to address discrimination against women by private actors. This obligation extends both to the specific areas covered in articles 6-16 of the Convention and also to the enjoyment of other fundamentally guaranteed human rights and fundamental freedoms. Legislative protection against discrimination would plainly be an appropriate and required measure (being explicitly covered in the early paragraphs of article 2).

127. The critical question here is what constitutes “appropriate measures” in a particular context. Some guidance can be gained from the jurisprudence that has emerged around the concept of “due diligence” in human rights law (though in certain circumstances, the standard of appropriateness may be higher than the standard of conduct required by “due diligence”). The jurisprudence which has developed in relation to the obligation to protect dimensions of rights may also provide additional resources for interpreting this phrase.

128. The due diligence standard has been extensively examined under a number of treaties, with some of the leading cases generally and in relation to gender arising within the Inter-American human rights system. The American Convention on Human Rights – as the other human rights treaties of general application – have been held to impose obligations on the State in relation to the acts of private individuals who violate the rights of others. The responsibility arises not from the direct attribution of the act to the State, but lies rather in the failure of the State to prevent, investigate and punish any violation of the rights recognised by the treaty in question. The State should also, if possible, attempt to restore the status quo and provide compensation for damage resulting from the violation.[102]

129. The CEDAW Committee has endorsed the notion of due diligence as applicable under the Convention in General recommendation No 19 (violence against women), in which it stressed that gender-specific violence against women was a form of discrimination under the Convention:[103]

“[D]iscrimination under the Convention is not restricted to action by or on behalf of Governments (see articles 2(e), 2(f) and 5). For example, under article 2(e) the Convention calls on States parties to take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise. Under general international law and specific human rights covenants, States may also be responsible for private acts if they fail to act with due diligence to prevent violations of rights or to investigate and punish acts of violence, and for providing compensation.”

130. The content of the concept of due diligence has been explored quite extensively at the international level in relation to violence against women. However, the notion of due diligence is applicable not just to those rights which are violated by the infliction of violence but also applies to violations of other rights guaranteed by or falling within the ambit of the Convention – though what is required by way of due diligence would vary from case to case.

131. “Appropriate measures” to eliminate discrimination against women are not limited to those involving legislation. For instance, the Committee has requested in the Concluding comments that States parties develop both formal and informal strategies to promote the reconciliation of family and work responsibilities between men and women in order to avoid women suffering disadvantage when applying for full-time positions.[104] Such policies include the promotion of positive images of women in the mainstream media and awareness-raising campaigns, as well as encouraging women, either individually or through National Commissions, to use legal avenues to seek redress in the courts for non-state actors’ discriminatory practices on the basis of gender. Thus in the List of Issues to Azerbaijan, the Committee asked that State party whether any private foreign companies which use tacit forms of discrimination with respect to the hiring and firing of women had come before the courts and what were the outcomes.[105]

9.7. (f) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women;

132. This obligation can most effectively be carried out by an initial comprehensive review of legislation upon ratification of the Convention, a gender-impact analysis of new legislation, and a regular updating review (this is one function which the reporting procedure is seen as serving, though the review does not have to be linked to that process). The Committee on the Rights of the Child has expressed a similar view:[106]

“The Committee believes a comprehensive review of all domestic legislation and related administrative guidance to ensure full compliance with the Convention is an obligation. Its experience in examining not only initial but now second and third periodic reports under the Convention suggests that the review process at the national level has, in most cases, been started, but needs to be more rigorous. The review needs to consider the Convention not only article by article, but also holistically, recognizing the interdependence and indivisibility of human rights. The review needs to be continuous rather than one-off, reviewing proposed as well as existing legislation. And while it is important that this review process should be built into the machinery of all relevant government departments, it is also advantageous to have independent review by, for example, parliamentary committees and hearings, national human rights institutions, NGOs, academics, affected children and young people and others.”

133. The prevalence of discriminatory traditional practices and customs which accentuate stereotypes is frequently described by the Committee as delaying the advancement of women, which in turn is one of the cornerstone objectives of CEDAW. The Committee has addressed these issues both under article 2(e) and article 2(f), and interpreted these provisions (and arguably article 5 as well) to impose an obligation on States parties to positively intervene into the activities and practices of ethnic groups that either directly or indirectly discriminate against women. States parties are reminded that a policy of non-intervention “perpetuates sexual stereotypes, son preference and discrimination against women” and breaches the requirements of the Convention.[107]

134. The Concluding comments of the Committee indicate that intervention may involve two interrelated approaches. The first can be described as “hard” mechanisms, such as the criminalisation of discriminatory practices, the punishment of perpetrators and civil remedies for the victims of discriminatory practices. The second involves “softer” mechanisms, such as the adoption of programmes aimed at raising awareness of the Convention and seeking to challenge stereotypical attitudes and perceptions about the roles and responsibilities of women and men. According to the Committee, such non-legal policies should involve the cooperation of non-government organisations, national ministries for women, the media and intellectuals, with the key goal of encouraging a change in people’s way of thinking. Law reform, information, education and communications, particularly in rural areas, are seen as critical to the success of such objectives.[108] Efforts to integrate the equality principle into the training curricula of teachers and trainers, including the development of training manuals and modules, are also described as furthering goal of eliminating discrimination against women.

135. Under article 2(f) States have a duty to repeal legislative provisions that discriminate against women. Failure to do is regarded by the Committee as a breach of the State’s obligations under the Convention. The key areas of concern identified by the Committee in this regard have been:

(a) the legal procedures for divorce, including child custody arrangements and property distribution;
(b) Laws regulating inheritance rights, in particular those allowing priority to male relatives over women;[109]
(c) Laws regulating polygamy;
(d) Criminal laws relating to marital rape and violence against women; and,
(e) Citizenship laws that discriminate against women nationals and their children when they marry a non-national.

9.8. (g) To repeal all national penal provisions which constitute discrimination against women.

136. The content of this obligation (at least once agreement is reached over whether a particular provision is discriminatory) is quite clear, and it is an obligation which can be implemented immediately in most cases.

9.9. Other issues

1. Intersectionality

137. The Committee has consistently recognised the need to differentiate between subgroups of women, since some groups may be subject to discrimination not just on the basis of sex, but on the basis of sex in combination with some other characteristic (race, ethnicity, disability, etc). That applies not just to discrimination by the State but also to discrimination by private actors. The CEDAW Committee has interpreted article 2(e) as including the obligation to ensure the human rights of women in all ethnic groups are guaranteed, protected and promoted. The intersectional nature of discrimination experienced by many women must be recognised and measures must be enacted to eliminate these overlapping forms of discrimination. The Committee, therefore, regularly requests statistical data on the situation of women in ethnic groups and migrant communities and information about their specific experiences of discrimination. States are encouraged to undertake a comprehensive assessment of the situation of foreign women, including the access of such women to education and training, work and work-related benefits, health care and social protection, as well as collect statistics and data on the number of victims of violence motivated by xenophobia and racism.

2. Application to non-citizens

138. The Committee has often emphasised that States parties have a responsibility to uphold the rights of female non-citizens living in that territory. Thus, State parties must ensure that foreign women are aware of their rights and have access to effective remedies when their rights are breached.[110] The legislative and social protection offered to women asylum seekers is also frequently identified by the Committee as an area of concern. Amongst the strategies suggested to address the continuing discrimination experienced by women asylum seekers and other minority groups is for States parties to sign additional relevant international treaties that deal specifically with the situation of such individuals, such as the Convention on the Rights of the Child and the Convention on the Rights of All Migrant Workers and Members of Their Families.

3. Ratification of other instruments

139. In addition to legislative measures, the Committee encourages States parties to consider ratifying other international treaties to which they are not yet a party, with the object of enhancing the enjoyment by women of their human rights and fundamental freedoms in all aspects of life, including, inter alia, the International Convention on the Elimination of All Forms of Racial Discrimination and the Convention on the Protection of the Rights of All Migrant Workers and Members of their Families. Regional conventions relating to women, such as the Inter-American Convention for the Prevention, Punishment and Eradication of Violence against Women are also promoted as an effective way to strengthen the Government’s programmes in particular areas.[111]

4. Other international documents

140. The Beijing Platform for Action (BPA) is frequently mentioned in the Committee’s Concluding comments to States parties. Criticism is directed regularly at states that have failed include in their reports an agenda or program directed at the implementation of the Beijing Platform for Action. States are also reminded of the need to have national plans / targets / policies and programs directed at women integrated with the objectives and commitments articulated at the BPA. In addition, the Committee has also emphasised that a full and effective implementation of the Convention is indispensable for achieving the Millennium Development Goals, and thus these goals should be interpreted with a gender perspective.

10. OBLIGATIONS RELATED TO PROCEDURES CONTAINED IN THE CEDAW CONVENTION

141. The CEDAW Committee considers State party reports according to the process outlined in article 18 of the Convention. Consistent with this provision, States parties have an obligation to submit reports focusing on steps taken towards the implementation and realisation of the Convention at the national level. Moreover, States parties may breach procedural obligations under CEDAW when, for instance: (i) reports do not contain sufficient and reliable information for the Committee to assess the implementation of the Convention at the national level; (ii) reports are considerably overdue;[112] or (iii) the State party refuses to submit additional information, when required by the Committee or participate in the constructive dialogue.

142. There are additional procedural obligations that apply to the States parties to the Optional Protocol to CEDAW and that relate to the communications and inquiry procedures contained therein. Likewise, there are general issues that link with the procedural obligations that will be referred to in this section that are addressed under the Rules of Procedure of the CEDAW Committee.

143. In general terms, while it is important for the Committee to consider procedural obligations as they apply to article 2, it is not necessary to expand on these issues in this background paper. Over the years, the practice and jurisprudence of the CEDAW Committee relating to these issues has been consistent and non-contentious. At the same time, since the CEDAW Committee has introduced a number of procedural innovations in recent years, it may be appropriate to include reference to these developments in the forthcoming general recommendation to give a rounded explanation of the scope the obligations.

10.1. Participation of civil society and women’s organisations

144. The Committee sees the existence of strong civil society-based women’s organisations as an important element in the implementation and monitoring of the Convention. In countries that lack autonomous and active women's and human rights organisations, the Committee has suggested that the State has an obligation to adopt legislative and administrative measures to create a space for such women’s and human rights organisations.[113]

145. The Committee has emphasized that States parties should consult and collaborate with women’s groups and other NGOs/civil society organisations in the stages of coordination and follow-up to initial and periodic reports under the Convention. In the reporting guidelines, follow-up questions, and often, during the dialogue with States, the Committee requires States parties to describe the processes of consultation with non-government organisations for the preparation of the State party’s report and describe their role. Besides the role of NGOs in the preparation of State party reports to CEDAW, the Committee also emphasises that States parties must make their reports accessible/available and not threaten or intimidate NGOs providing supplementary information to the CEDAW Committee. Other human rights treaty bodies also ask similar questions such as whether reporting agencies receive input from external sources and whether the reports are the subject of public debate;[114] or broad-based consultation.[115]

10.2. Follow-up, education and dissemination obligations

1. General

146. The Committee has stated that States Parties must “[t]ake appropriate steps to ensure the dissemination of the Convention, the reports of the States Parties under Article 18 and the reports of the Committee in the language of the States Concerned.”[116]

147. In connection with procedural obligations, the requirement to take “all appropriate measures to eliminate discrimination” has been interpreted to include steps for promulgation of the Convention. These steps include wide dissemination of the reports, jurisprudence and views of the committee, and are also linked to a more general obligation of human rights education relating to the Convention. It is important to note that specific steps must be adopted to ensure civil society and women’s organisations, all levels of the public sector and the private sector (and other non-state actors) gain greater awareness of CEDAW and the procedures set forth in the Convention and the Optional Protocol to CEDAW. The Committee has also stressed the need for States to give prominence to the Convention, not just in their substantive policymaking but in their public consideration and explanation of measures aimed at achieving equality. It has encouraged States parties to cite the Convention as the legal basis for all measures, including legislation that has as its objective the elimination of discrimination against women and the advancement of women, thereby increasing the visibility and awareness of the Convention not only amongst the general public, but also amongst members of the judiciary, political circles and the legal profession.[117]

2. Concluding Comments

148. Every set of CEDAW Concluding Comments ends by reminding State Parties of the need for the information contained within that document to be widely disseminated among the public, judiciary, women’s and human rights organisations and legislative groups. The purpose of this is to ensure that “people and administrators and politicians, are aware of the steps that have been taken to ensure de jure and de facto equality of women and the further steps that required in this regard.”[118] This is to be done in all the various languages that are spoken in that country. The Convention, its Optional Protocol, views under the Optional Protocol and the Committee’s general recommendations should also be widely disseminated.

149. According to the practice of the Committee, “[S]hortly after the consideration of the report, the Committee will publish its concluding comments on the report and the constructive dialogue with the delegation. These concluding comments will be included in the Committee’s annual report to the General Assembly; the Committee expects the State party to disseminate these conclusions, in all appropriate languages, with a view to public information and discussion.”[119]

150. Other treaty bodies share this concern to ensure that concluding comments and observations are widely publicised. For example, various reporting guidelines require States Parties to submit information on: measures for the dissemination of concluding observations by State expected;[120] details of steps taken to give effect to conclusions and recommendations should be included in next report;[121] information sought about measures taken to make reports widely available to public at large; [122] information about dissemination of concluding observations and summary records (including any parliamentary hearings or media coverage).[123]

151. In A.T. v Hungary, a case reviewed by the CEDAW Committee under the communications procedure under the Optional Protocol, the committee requested Hungary “[t]o implement expeditiously and without delay the Committee’s Concluding Comments of 2002...with respect to violence against women.”[124] This implies that, if the State Party had followed up and disseminated the concluding comments years before, the complainant/victim would have been in a better position to claim her rights at the national level.

3. CEDAW and the Optional Protocol

152. Article 13 of the Optional Protocol to CEDAW states clearly establishes that States Parties have an obligation to disseminate: “Each State Party undertakes to make widely known and to give publicity to the Convention and the present Protocol and to facilitate access to information about the views and recommendations of the Committee, in particular, of matters involving that State Party.”

153. In relation to wide dissemination of the text of the CEDAW Convention and the Optional Protocol, reporting guidelines for all treaties require information on dissemination of texts of all treaties, including CEDAW and the Optional Protocol and their translation to local language(s)[125]; the extent of the translation of the texts of the Convention and the Optional Protocol; the means adopted to publicise, specific steps in relation to children;[126] the education of public officials, professional groups and others, and incorporation into professional training curricula; and mass media education, involvement of NGOs in awareness and advocacy.[127]

154. More recently, the CEDAW Committee also expressed the view that in order to try to address the situation of the disappearances and murders of women in Ciudad Juarez more effectively, the government of Mexico should “[o]rganise -- with the active participation, at each stage of the process, of civil society organisations, including men and boys -- massive, immediate and on-going campaigns to eradicate discrimination against women, promote equality between men and women and promote women’s empowerment. Monitor such campaigns systematically with a view to achieving concrete and positive results”[128] In this regard, while appropriate measures for the dissemination of the Convention and the Optional protocol are important, this basic level of human rights education through the CEDAW Convention should result in concrete and measurable outcomes.

4. Views under the Optional Protocol

155. In accordance with article 13 of the Optional Protocol[129], once the Committee has issued views under the communications procedure “entailing the provision of a remedy or expressing any concern, relating to a communication received under that protocol, a report should include information about the steps taken to provide a remedy, or meet such a concern, and to endure that any circumstance giving rise to the Communication does not occur.”[130] If CEDAW has conducted an inquiry, “a report should include details of any measures taken in response to an inquiry, and to ensure that the violations giving rise to the inquiry do not recur.”[131]

11. CONCLUSION

156. This paper has sought to identify a number of the major substantive and procedural issues that might be usefully address in a General recommendation on article 2 of the Convention and/or on the nature of the obligations contained in the CEDAW Convention. Many of these ideas have been brought together in a structured and coherent manner in the Outcome Document from the Expert Group Meeting for which this paper was originally prepared. [132]

157. The drafting process will provide the CEDAW Committee an opportunity to consider legal and policy issues relating to article 2 in an integrated way. As a result, States parties will be able to improve processes relating to the effective implementation of the Convention at the domestic level. Also, through a better understanding of their obligations, States parties should be in a position to perform better and in accordance to international processes stemming from the procedures contained in CEDAW and the Optional Protocol.

12. ANNEX 1: GENERAL COMMENTS BY UN TREATY BODIES

12.1. GENERAL COMMENTS ADOPTED BY THE COMMITTEE ON

ECONOMIC, SOCIAL AND CULTURAL RIGHTS

Fifth session (1990)[*]

CESCR General comment No. 3: The nature of States parties’ obligations
(art. 2, para. 1, of the Covenant)

1. Article 2 is of particular importance to a full understanding of the Covenant and must be seen as having a dynamic relationship with all of the other provisions of the Covenant. It describes the nature of the general legal obligations undertaken by States parties to the Covenant. Those obligations include both what may be termed (following the work of the International Law Commission) obligations of conduct and obligations of result. While great emphasis has sometimes been placed on the difference between the formulations used in this provision and that contained in the equivalent article 2 of the International Covenant on Civil and Political Rights, it is not always recognized that there are also significant similarities. In particular, while the Covenant provides for progressive realization and acknowledges the constraints due to the limits of available resources, it also imposes various obligations which are of immediate effect. Of these, two are of particular importance in understanding the precise nature of States parties obligations. One of these, which is dealt with in a separate general comment, and which is to be considered by the Committee at its sixth session, is the “undertaking to guarantee” that relevant rights “will be exercised without discrimination ...”.

2. The other is the undertaking in article 2 (1) “to take steps”, which in itself, is not qualified or limited by other considerations. The full meaning of the phrase can also be gauged by noting some of the different language versions. In English the undertaking is “to take steps”, in French it is “to act” (“s’engage à agir”) and in Spanish it is “to adopt measures” (“a adoptar medidas”). Thus while the full realization of the relevant rights may be achieved progressively, steps towards that goal must be taken within a reasonably short time after the Covenant’s entry into force for the States concerned. Such steps should be deliberate, concrete and targeted as clearly as possible towards meeting the obligations recognized in the Covenant.

3. The means which should be used in order to satisfy the obligation to take steps are stated in article 2 (1) to be “all appropriate means, including particularly the adoption of legislative measures”. The Committee recognizes that in many instances legislation is highly desirable and in some cases may even be indispensable. For example, it may be difficult to combat discrimination effectively in the absence of a sound legislative foundation for the necessary measures. In fields such as health, the protection of children and mothers, and education, as well as in respect of the matters dealt with in articles 6 to 9, legislation may also be an indispensable element for many purposes.

4. The Committee notes that States parties have generally been conscientious in detailing at least some of the legislative measures that they have taken in this regard. It wishes to emphasize, however, that the adoption of legislative measures, as specifically foreseen by the Covenant, is by no means exhaustive of the obligations of States parties. Rather, the phrase “by all appropriate means” must be given its full and natural meaning. While each State party must decide for itself which means are the most appropriate under the circumstances with respect to each of the rights, the “appropriateness” of the means chosen will not always be self-evident. It is therefore desirable that States parties’ reports should indicate not only the measures that have been taken but also the basis on which they are considered to be the most “appropriate” under the circumstances. However, the ultimate determination as to whether all appropriate measures have been taken remains one for the Committee to make.

5. Among the measures which might be considered appropriate, in addition to legislation, is the provision of judicial remedies with respect to rights which may, in accordance with the national legal system, be considered justiciable. The Committee notes, for example, that the enjoyment of the rights recognized, without discrimination, will often be appropriately promoted, in part, through the provision of judicial or other effective remedies. Indeed, those States parties which are also parties to the International Covenant on Civil and Political Rights are already obligated (by virtue of articles 2 (paras. 1 and 3), 3 and 26) of that Covenant to ensure that any person whose rights or freedoms (including the right to equality and non-discrimination) recognized in that Covenant are violated, “shall have an effective remedy” (art. 2 (3) (a)). In addition, there are a number of other provisions in the International Covenant on Economic, Social and Cultural Rights, including articles 3, 7 (a) (i), 8, 10 (3), 13 (2) (a), (3) and (4) and 15 (3) which would seem to be capable of immediate application by judicial and other organs in many national legal systems. Any suggestion that the provisions indicated are inherently non-self-executing would seem to be difficult to sustain.

6. Where specific policies aimed directly at the realization of the rights recognized in the Covenant have been adopted in legislative form, the Committee would wish to be informed, inter alia, as to whether such laws create any right of action on behalf of individuals or groups who feel that their rights are not being fully realized. In cases where constitutional recognition has been accorded to specific economic, social and cultural rights, or where the provisions of the Covenant have been incorporated directly into national law, the Committee would wish to receive information as to the extent to which these rights are considered to be justiciable (i.e. able to be invoked before the courts). The Committee would also wish to receive specific information as to any instances in which existing constitutional provisions relating to economic, social and cultural rights have been weakened or significantly changed.

7. Other measures which may also be considered “appropriate” for the purposes of article 2 (1) include, but are not limited to, administrative, financial, educational and social measures.

8. The Committee notes that the undertaking “to take steps ... by all appropriate means including particularly the adoption of legislative measures” neither requires nor precludes any particular form of government or economic system being used as the vehicle for the steps in question, provided only that it is democratic and that all human rights are thereby respected. Thus, in terms of political and economic systems the Covenant is neutral and its principles cannot accurately be described as being predicated exclusively upon the need for, or the desirability of a socialist or a capitalist system, or a mixed, centrally planned, or laissez-faire economy, or upon any other particular approach. In this regard, the Committee reaffirms that the rights recognized in the Covenant are susceptible of realization within the context of a wide variety of economic and political systems, provided only that the interdependence and indivisibility of the two sets of human rights, as affirmed inter alia in the preamble to the Covenant, is recognized and reflected in the system in question. The Committee also notes the relevance in this regard of other human rights and in particular the right to development.

9. The principal obligation of result reflected in article 2 (1) is to take steps “with a view to achieving progressively the full realization of the rights recognized” in the Covenant. The term “progressive realization” is often used to describe the intent of this phrase. The concept of progressive realization constitutes a recognition of the fact that full realization of all economic, social and cultural rights will generally not be able to be achieved in a short period of time. In this sense the obligation differs significantly from that contained in article 2 of the International Covenant on Civil and Political Rights which embodies an immediate obligation to respect and ensure all of the relevant rights. Nevertheless, the fact that realization over time, or in other words progressively, is foreseen under the Covenant should not be misinterpreted as depriving the obligation of all meaningful content. It is on the one hand a necessary flexibility device, reflecting the realities of the real world and the difficulties involved for any country in ensuring full realization of economic, social and cultural rights. On the other hand, the phrase must be read in the light of the overall objective, indeed the raison d’être, of the Covenant which is to establish clear obligations for States parties in respect of the full realization of the rights in question. It thus imposes an obligation to move as expeditiously and effectively as possible towards that goal. Moreover, any deliberately retrogressive measures in that regard would require the most careful consideration and would need to be fully justified by reference to the totality of the rights provided for in the Covenant and in the context of the full use of the maximum available resources.

10. On the basis of the extensive experience gained by the Committee, as well as by the body that preceded it, over a period of more than a decade of examining States parties’ reports the Committee is of the view that a minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights is incumbent upon every State party. Thus, for example, a State party in which any significant number of individuals is deprived of essential foodstuffs, of essential primary health care, of basic shelter and housing, or of the most basic forms of education is, prima facie, failing to discharge its obligations under the Covenant. If the Covenant were to be read in such a way as not to establish such a minimum core obligation, it would be largely deprived of its raison d’être. By the same token, it must be noted that any assessment as to whether a State has discharged its minimum core obligation must also take account of resource constraints applying within the country concerned. Article 2 (1) obligates each State party to take the necessary steps “to the maximum of its available resources”. In order for a State party to be able to attribute its failure to meet at least its minimum core obligations to a lack of available resources it must demonstrate that every effort has been made to use all resources that are at its disposition in an effort to satisfy, as a matter of priority, those minimum obligations.

11. The Committee wishes to emphasize, however, that even where the available resources are demonstrably inadequate, the obligation remains for a State party to strive to ensure the widest possible enjoyment of the relevant rights under the prevailing circumstances. Moreover, the obligations to monitor the extent of the realization, or more especially of the non-realization, of economic, social and cultural rights, and to devise strategies and programmes for their promotion, are not in any way eliminated as a result of resource constraints. The Committee has already dealt with these issues in its general comment No. 1 (1989).

12. Similarly, the Committee underlines the fact that even in times of severe resources constraints whether caused by a process of adjustment, of economic recession, or by other factors the vulnerable members of society can and indeed must be protected by the adoption of relatively low-cost targeted programmes. In support of this approach the Committee takes note of the analysis prepared by UNICEF entitled “Adjustment with a human face: protecting the vulnerable and promoting growth,[1] the analysis by UNDP in its Human Development Report 1990[1] and the analysis by the World Bank in the World Development Report 1990.[1]

13. A final element of article 2 (1), to which attention must be drawn, is that the undertaking given by all States parties is “to take steps, individually and through international assistance and cooperation, especially economic and technical ...”. The Committee notes that the phrase “to the maximum of its available resources” was intended by the drafters of the Covenant to refer to both the resources existing within a State and those available from the international community through international cooperation and assistance. Moreover, the essential role of such cooperation in facilitating the full realization of the relevant rights is further underlined by the specific provisions contained in articles 11, 15, 22 and 23. With respect to article 22 the Committee has already drawn attention, in general comment No. 2 (1990), to some of the opportunities and responsibilities that exist in relation to international cooperation. Article 23 also specifically identifies “the furnishing of technical assistance” as well as other activities, as being among the means of “international action for the achievement of the rights recognized ...”.

14. The Committee wishes to emphasize that in accordance with Articles 55 and 56 of the Charter of the United Nations, with well-established principles of international law, and with the provisions of the Covenant itself, international cooperation for development and thus for the realization of economic, social and cultural rights is an obligation of all States. It is particularly incumbent upon those States which are in a position to assist others in this regard. The Committee notes in particular the importance of the Declaration on the Right to Development adopted by the General Assembly in its resolution 41/128 of 4 December 1986 and the need for States parties to take full account of all of the principles recognized therein. It emphasizes that, in the absence of an active programme of international assistance and cooperation on the part of all those States that are in a position to undertake one, the full realization of economic, social and cultural rights will remain an unfulfilled aspiration in many countries. In this respect, the Committee also recalls the terms of its general comment No. 2 (1990).

Notes

1. G.A. Cornia, R. Jolly and F. Steward, Eds., Oxford, Clarendon Press, 1987.

2.Oxford, Oxford University Press, 1990.

3.Oxford, Oxford University Press, 1990.

Nineteenth session (1998)*

CESCR General comment No. 9: The domestic application of the Covenant

A. The duty to give effect to the Covenant in the domestic legal order

1. In its general comment No. 3 (1990) on the nature of States parties’ obligations (article 2, paragraph 1, of the Covenant)i the Committee addressed issues relating to the nature and scope of States parties’ obligations. The present general comment seeks to elaborate further certain elements of the earlier statement. The central obligation in relation to the Covenant is for States parties to give effect to the rights recognized therein. By requiring Governments to do so “by all appropriate means”, the Covenant adopts a broad and flexible approach which enables the particularities of the legal and administrative systems of each State, as well as other relevant considerations, to be taken into account.

2. But this flexibility coexists with the obligation upon each State party to use all the means at its disposal to give effect to the rights recognized in the Covenant. In this respect, the fundamental requirements of international human rights law must be borne in mind. Thus the Covenant norms must be recognized in appropriate ways within the domestic legal order, appropriate means of redress, or remedies, must be available to any aggrieved individual or group, and appropriate means of ensuring governmental accountability must be put in place.

3. Questions relating to the domestic application of the Covenant must be considered in the light of two principles of international law. The first, as reflected in article 27 of the Vienna Convention on the Law of Treaties,ii is that “[A] party may not invoke the provisions of its internal law as justification for its failure to perform a treaty”. In other words, States should modify the domestic legal order as necessary in order to give effect to their treaty obligations. The second principle is reflected in article 8 of the Universal Declaration of Human Rights, according to which “Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law”. The International Covenant on Economic, Social and Cultural Rights contains no direct counterpart to article 2, paragraph 3 (b), of the International Covenant on Civil and Political Rights, which obligates States parties to, inter alia, “develop the possibilities of judicial remedy”. Nevertheless, a State party seeking to justify its failure to provide any domestic legal remedies for violations of economic, social and cultural rights would need to show either that such remedies are not “appropriate means” within the terms of article 2, paragraph 1, of the International Covenant on Economic, Social and Cultural Rights or that, in view of the other means used, they are unnecessary. It will be difficult to show this and the Committee considers that, in many cases, the other means used could be rendered ineffective if they are not reinforced or complemented by judicial remedies.

B. The status of the Covenant in the domestic legal order

4. In general, legally binding international human rights standards should operate directly and immediately within the domestic legal system of each State party, thereby enabling individuals to seek enforcement of their rights before national courts and tribunals. The rule requiring the exhaustion of domestic remedies reinforces the primacy of national remedies in this respect. The existence and further development of international procedures for the pursuit of individual claims is important, but such procedures are ultimately only supplementary to effective national remedies.

5. The Covenant does not stipulate the specific means by which it is to be implemented in the national legal order. And there is no provision obligating its comprehensive incorporation or requiring it to be accorded any specific type of status in national law. Although the precise method by which Covenant rights are given effect in national law is a matter for each State party to decide, the means used should be appropriate in the sense of producing results which are consistent with the full discharge of its obligations by the State party. The means chosen are also subject to review as part of the Committee’s examination of the State party’s compliance with its obligations under the Covenant.

6. An analysis of State practice with respect to the Covenant shows that States have used a variety of approaches. Some States have failed to do anything specific at all. Of those that have taken measures, some States have transformed the Covenant into domestic law by supplementing or amending existing legislation, without invoking the specific terms of the Covenant. Others have adopted or incorporated it into domestic law, so that its terms are retained intact and given formal validity in the national legal order. This has often been done by means of constitutional provisions according priority to the provisions of international human rights treaties over any inconsistent domestic laws. The approach of States to the Covenant depends significantly upon the approach adopted to treaties in general in the domestic legal order.

7. But whatever the preferred methodology, several principles follow from the duty to give effect to the Covenant and must therefore be respected. First, the means of implementation chosen must be adequate to ensure fulfilment of the obligations under the Covenant. The need to ensure justiciability (see paragraph 10 below) is relevant when determining the best way to give domestic legal effect to the Covenant rights. Second, account should be taken of the means which have proved to be most effective in the country concerned in ensuring the protection of other human rights. Where the means used to give effect to the Covenant on Economic, Social and Cultural Rights differ significantly from those used in relation to other human rights treaties, there should be a compelling justification for this, taking account of the fact that the formulations used in the Covenant are, to a considerable extent, comparable to those used in treaties dealing with civil and political rights.

8. Third, while the Covenant does not formally oblige States to incorporate its provisions in domestic law, such an approach is desirable. Direct incorporation avoids problems that might arise in the translation of treaty obligations into national law, and provides a basis for the direct invocation of the Covenant rights by individuals in national courts. For these reasons, the Committee strongly encourages formal adoption or incorporation of the Covenant in national law.

C. The role of legal remedies

Legal or judicial remedies

9. The right to an effective remedy need not be interpreted as always requiring a judicial remedy. Administrative remedies will, in many cases, be adequate and those living within the jurisdiction of a State party have a legitimate expectation, based on the principle of good faith, that all administrative authorities will take account of the requirements of the Covenant in their decision-making. Any such administrative remedies should be accessible, affordable, timely and effective. An ultimate right of judicial appeal from administrative procedures of this type would also often be appropriate. By the same token, there are some obligations, such as (but by no means limited to) those concerning non-discrimination,133 in relation to which the provision of some form of judicial remedy would seem indispensable in order to satisfy the requirements of the Covenant. In other words, whenever a Covenant right cannot be made fully effective without some role for the judiciary, judicial remedies are necessary.

Justiciability

10. In relation to civil and political rights, it is generally taken for granted that judicial remedies for violations are essential. Regrettably, the contrary assumption is too often made in relation to economic, social and cultural rights. This discrepancy is not warranted either by the nature of the rights or by the relevant Covenant provisions. The Committee has already made clear that it considers many of the provisions in the Covenant to be capable of immediate implementation. Thus, in general comment No. 3 (1990) it cited, by way of example, articles 3; 7, paragraph (a) (i); 8; 10, paragraph 3; 13, paragraph 2 (a); 13, paragraph 3; 13, paragraph 4; and 15, paragraph 3. It is important in this regard to distinguish between justiciability (which refers to those matters which are appropriately resolved by the courts) and norms which are self-executing (capable of being applied by courts without further elaboration). While the general approach of each legal system needs to be taken into account, there is no Covenant right which could not, in the great majority of systems, be considered to possess at least some significant justiciable dimensions. It is sometimes suggested that matters involving the allocation of resources should be left to the political authorities rather than the courts. While the respective competences of the various branches of government must be respected, it is appropriate to acknowledge that courts are generally already involved in a considerable range of matters which have important resource implications. The adoption of a rigid classification of economic, social and cultural rights which puts them, by definition, beyond the reach of the courts would thus be arbitrary and incompatible with the principle that the two sets of human rights are indivisible and interdependent. It would also drastically curtail the capacity of the courts to protect the rights of the most vulnerable and disadvantaged groups in society.

Self-executing

11. The Covenant does not negate the possibility that the rights it contains may be considered self-executing in systems where that option is provided for. Indeed, when it was being drafted, attempts to include a specific provision in the Covenant to the effect that it be considered “non-self-executing” were strongly rejected. In most States, the determination of whether or not a treaty provision is self-executing will be a matter for the courts, not the executive or the legislature. In order to perform that function effectively, the relevant courts and tribunals must be made aware of the nature and implications of the Covenant and of the important role of judicial remedies in its implementation. Thus, for example, when Governments are involved in court proceedings, they should promote interpretations of domestic laws which give effect to their Covenant obligations. Similarly, judicial training should take full account of the justiciability of the Covenant. It is especially important to avoid any a priori assumption that the norms should be considered to be non-self-executing. In fact, many of them are stated in terms which are at least as clear and specific as those in other human rights treaties, the provisions of which are regularly deemed by courts to be self-executing.

D. The treatment of the Covenant in domestic courts

12. In the Committee’s guidelines for States’ reports, States are requested to provide information as to whether the provisions of the Covenant “can be invoked before, and directly enforced by, the Courts, other tribunals or administrative authorities”.iv Some States have provided such information, but greater importance should be attached to this element in future reports. In particular, the Committee requests that States parties provide details of any significant jurisprudence from their domestic courts that makes use of the provisions of the Covenant.

13. On the basis of available information, it is clear that State practice is mixed. The Committee notes that some courts have applied the provisions of the Covenant either directly or as interpretative standards. Other courts are willing to acknowledge, in principle, the relevance of the Covenant for interpreting domestic law, but in practice, the impact of the Covenant on the reasoning or outcome of cases is very limited. Still other courts have refused to give any degree of legal effect to the Covenant in cases in which individuals have sought to rely on it. There remains extensive scope for the courts in most countries to place greater reliance upon the Covenant.

14. Within the limits of the appropriate exercise of their functions of judicial review, courts should take account of Covenant rights where this is necessary to ensure that the State’s conduct is consistent with its obligations under the Covenant. Neglect by the courts of this responsibility is incompatible with the principle of the rule of law, which must always be taken to include respect for international human rights obligations.

15. It is generally accepted that domestic law should be interpreted as far as possible in a way which conforms to a State’s international legal obligations. Thus, when a domestic decision maker is faced with a choice between an interpretation of domestic law that would place the State in breach of the Covenant and one that would enable the State to comply with the Covenant, international law requires the choice of the latter. Guarantees of equality and non-discrimination should be interpreted, to the greatest extent possible, in ways which facilitate the full protection of economic, social and cultural rights.

Notes

1. E/1991/23, annex III.

2. United Nations, Treaty Series, vol. 1155, p. 331.

3. Pursuant to article 2, paragraph 2, of the Covenant, States “undertake to guarantee” that the rights therein are exercised “without discrimination of any kind”.

4. See E/1991/23, annex IV, chapter A, paragraph 1 (d) (iv).

Nineteenth session (1998)*

CESCR General comment No. 10: The role of national human rights institutions in the protection of economic, social and cultural rights

1. Article 2, paragraph 1, of the Covenant obligates each State party “to take steps ... with a view to achieving progressively the full realization of the [Covenant] rights ... by all appropriate means”. The Committee notes that one such means, through which important steps can be taken, is the work of national institutions for the promotion and protection of human rights. In recent years there has been a proliferation of these institutions and the trend has been strongly encouraged by the General Assembly and the Commission on Human Rights. The Office of the United Nations High Commissioner for Human Rights has established a major programme to assist and encourage States in relation to national institutions.

2. These institutions range from national human rights commissions through Ombudsman offices, public interest or other human rights “advocates”, to “defensores del pueblo”. In many cases, the institution has been established by the Government, enjoys an important degree of autonomy from the executive and the legislature, takes full account of international human rights standards which are applicable to the country concerned, and is mandated to perform various activities designed to promote and protect human rights. Such institutions have been established in States with widely differing legal cultures and regardless of their economic situation.

3. The Committee notes that national institutions have a potentially crucial role to play in promoting and ensuring the indivisibility and interdependence of all human rights. Unfortunately, this role has too often either not been accorded to the institution or has been neglected or given a low priority by it. It is therefore essential that full attention be given to economic, social and cultural rights in all of the relevant activities of these institutions. The following list is indicative of the types of activities that can be, and in some instances already have been, undertaken by national institutions in relation to these rights:

(a) The promotion of educational and information programmes designed to enhance awareness and understanding of economic, social and cultural rights, both within the population at large and among particular groups such as the public service, the judiciary, the private sector and the labour movement;

(b) The scrutinizing of existing laws and administrative acts, as well as draft bills and other proposals, to ensure that they are consistent with the requirements of the International Covenant on Economic, Social and Cultural Rights;

(c) Providing technical advice, or undertaking surveys in relation to economic, social and cultural rights, including at the request of the public authorities or other appropriate agencies;

(d) The identification of national-level benchmarks against which the realization of Covenant obligations can be measured;

(e) Conducting research and inquiries designed to ascertain the extent to which particular economic, social and cultural rights are being realized, either within the State as a whole or in areas or in relation to communities of particular vulnerability;

(f) Monitoring compliance with specific rights recognized under the Covenant and providing reports thereon to the public authorities and civil society; and

(g) Examining complaints alleging infringements of applicable economic, social and cultural rights standards within the State.

4. The Committee calls upon States parties to ensure that the mandates accorded to all national human rights institutions include appropriate attention to economic, social and cultural rights and requests States parties to include details of both the mandates and the principal relevant activities of such institutions in their reports submitted to the Committee.

12.2. GENERAL COMMENT ADOPTED BY THE HUMAN RIGHTS COMMITTEE

Eightieth session (2004)

CCPR General comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant*

1. This general comment replaces general comment No. 3, reflecting and developing its principles. The general non-discrimination provisions of article 2, paragraph 1, have been addressed in general comment No. 18 and general comment No. 28, and this general comment should be read together with them.

2. While article 2 is couched in terms of the obligations of State parties towards individuals as the right-holders under the Covenant, every State party has a legal interest in the performance by every other State party of its obligations. This follows from the fact that the “rules concerning the basic rights of the human person” are erga omnes obligations and that, as indicated in the fourth preambular paragraph of the Covenant, there is a United Nations Charter obligation to promote universal respect for, and observance of, human rights and fundamental freedoms. Furthermore, the contractual dimension of the treaty involves any State party to a treaty being obligated to every other State party to comply with its undertakings under the treaty. In this connection, the Committee reminds States parties of the desirability of making the declaration contemplated in article 41. It further reminds those States parties already having made the declaration of the potential value of availing themselves of the procedure under that article. However, the mere fact that a formal interstate mechanism for complaints to the Human Rights Committee exists in respect of States parties that have made the declaration under article 41 does not mean that this procedure is the only method by which States parties can assert their interest in the performance of other States parties. On the contrary, the article 41 procedure should be seen as supplementary to, not diminishing of, States parties’ interest in each others’ discharge of their obligations. Accordingly, the Committee commends to States parties the view that violations of Covenant rights by any State party deserve their attention. To draw attention to possible breaches of Covenant obligations by other States parties and to call on them to comply with their Covenant obligations should, far from being regarded as an unfriendly act, be considered as a reflection of legitimate community interest.

3. Article 2 defines the scope of the legal obligations undertaken by States parties to the Covenant. A general obligation is imposed on States parties to respect the Covenant rights and to ensure them to all individuals in their territory and subject to their jurisdiction (see paragraph 9 and 10 below). Pursuant to the principle articulated in article 26 of the Vienna Convention on the Law of Treaties, States parties are required to give effect to the obligations under the Covenant in good faith.

4. The obligations of the Covenant in general and article 2 in particular are binding on every State party as a whole. All branches of government (executive, legislative and judicial), and other public or governmental authorities, at whatever level - national, regional or local) are in a position to engage the responsibility of the State party. The executive branch that usually represents the State party internationally, including before the Committee, may not point to the fact that an action incompatible with the provisions of the Covenant was carried out by another branch of government as a means of seeking to relieve the State party from responsibility for the action and consequent incompatibility. This understanding flows directly from the principle contained in article 27 of the Vienna Convention on the Law of Treaties, according to which a State party “may not invoke the provisions of its internal law as justification for its failure to perform a treaty”. Although article 2, paragraph 2, allows States parties to give effect to Covenant rights in accordance with domestic constitutional processes, the same principle operates so as to prevent States parties from invoking provisions of the constitutional law or other aspects of domestic law to justify a failure to perform or give effect to obligations under the treaty. In this respect, the Committee reminds States parties with a federal structure of the terms of article 50, according to which the Covenant’s provisions “shall extend to all parts of federal states without any limitations or exceptions”.

5. The article 2, paragraph 1, obligation to respect and ensure the rights recognized by the Covenant has immediate effect for all States parties. Article 2, paragraph 2, provides the overarching framework within which the rights specified in the Covenant are to be promoted and protected. The Committee has as a consequence previously indicated in its general comment No. 24 that reservations to article 2, would be incompatible with the Covenant when considered in the light of its objects and purposes.

6. The legal obligation under article 2, paragraph 1, is both negative and positive in nature. States parties must refrain from violation of the rights recognized by the Covenant, and any restrictions on any of those rights must be permissible under the relevant provisions of the Covenant. Where such restrictions are made, States must demonstrate their necessity and only take such measures as are proportionate to the pursuance of legitimate aims in order to ensure continuous and effective protection of Covenant rights. In no case may the restrictions be applied or invoked in a manner that would impair the essence of a Covenant right.

7. Article 2 requires that States parties adopt legislative, judicial, administrative, educative and other appropriate measures in order to fulfil their legal obligations. The Committee believes that it is important to raise levels of awareness about the Covenant not only among public officials and State agents but also among the population at large.

8. The article 2, paragraph 1, obligations are binding on States parties and do not, as such, have direct horizontal effect as a matter of international law. The Covenant cannot be viewed as a substitute for domestic criminal or civil law. However the positive obligations on States parties to ensure Covenant rights will only be fully discharged if individuals are protected by the State, not just against violations of Covenant rights by its agents, but also against acts committed by private persons or entities that would impair the enjoyment of Covenant rights insofar as they are amenable to application between private persons or entities. There may be circumstances in which a failure to ensure Covenant rights as required by article 2 would give rise to violations by States parties of those rights, as a result of States parties’ permitting or failing to take appropriate measures or to exercise due diligence to prevent, punish, investigate or redress the harm caused by such acts by private persons or entities. States are reminded of the interrelationship between the positive obligations imposed under article 2 and the need to provide effective remedies in the event of breach under article 2, paragraph 3. The Covenant itself envisages in some articles certain areas where there are positive obligations on States parties to address the activities of private persons or entities. For example, the privacy-related guarantees of article 17 must be protected by law. It is also implicit in article 7 that States parties have to take positive measures to ensure that private persons or entities do not inflict torture or cruel, inhuman or degrading treatment or punishment on others within their power. In fields affecting basic aspects of ordinary life such as work or housing, individuals are to be protected from discrimination within the meaning of article 26.

9. The beneficiaries of the rights recognized by the Covenant are individuals. Although, with the exception of article 1, the Covenant does not mention the rights of legal persons or similar entities or collectivities, many of the rights recognized by the Covenant, such as the freedom to manifest one’s religion or belief (art. 18), the freedom of association (art. 22) or the rights of members of minorities (art. 27), may be enjoyed in community with others. The fact that the competence of the Committee to receive and consider communications is restricted to those submitted by or on behalf of individuals (article 1 of the (first) Optional Protocol) does not prevent such individuals from claiming that actions or omissions that concern legal persons and similar entities amount to a violation of their own rights.

10. States parties are required by article 2, paragraph 1, to respect and to ensure the Covenant rights to all persons who may be within their territory and to all persons subject to their jurisdiction. This means that a State party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State party, even if not situated within the territory of the State party. As indicated in general comment No. 15 adopted at the twenty-seventh session (1986), the enjoyment of Covenant rights is not limited to citizens of States parties but must also be available to all individuals, regardless of nationality or statelessness, such as asylum-seekers, refugees, migrant workers and other persons, who may find themselves in the territory or subject to the jurisdiction of the State party. This principle also applies to those within the power or effective control of the forces of a State party acting outside its territory, regardless of the circumstances in which such power or effective control was obtained, such as forces constituting a national contingent of a State party assigned to an international peacekeeping or peace-enforcement operation.

11. As implied in general comment No. 291, the Covenant applies also in situations of armed conflict to which the rules of international humanitarian law are applicable. While, in respect of certain Covenant rights, more specific rules of international humanitarian law may be especially relevant for the purposes of the interpretation of Covenant rights, both spheres of law are complementary, not mutually exclusive.

12. Moreover, the article 2 obligation requiring that States parties respect and ensure the Covenant rights for all persons in their territory and all persons under their control entails an obligation not to extradite, deport, expel or otherwise remove a person from their territory, where there are substantial grounds for believing that there is a real risk of irreparable harm, such as that contemplated by articles 6 and 7 of the Covenant, either in the country to which removal is to be effected or in any country to which the person may subsequently be removed. The relevant judicial and administrative authorities should be made aware of the need to ensure compliance with the Covenant obligations in such matters.

13. Article 2, paragraph 2, requires that States parties take the necessary steps to give effect to the Covenant rights in the domestic order. It follows that, unless the Covenant’s rights are already protected by their domestic laws or practices, States parties are required on ratification to make such changes to domestic laws and practices as are necessary to ensure their conformity with the Covenant. Where there are inconsistencies between domestic law and the Covenant, article 2 requires that the domestic law or practice be changed to meet the standards imposed by the Covenant’s substantive guarantees. Article 2 allows a State party to pursue this in accordance with its own domestic constitutional structure and accordingly does not require that the Covenant be directly applicable in the courts, by incorporation of the Covenant into national law. The Committee takes the view, however, that Covenant guarantees may receive enhanced protection in those States where the Covenant is automatically or through specific incorporation part of the domestic legal order. The Committee invites those States parties in which the Covenant does not form part of the domestic legal order to consider incorporation of the Covenant to render it part of domestic law to facilitate full realization of Covenant rights as required by article 2.

14. The requirement under article 2, paragraph 2, to take steps to give effect to the Covenant rights is unqualified and of immediate effect. A failure to comply with this obligation cannot be justified by reference to political, social, cultural or economic considerations within the State.

15. Article 2, paragraph 3, requires that in addition to effective protection of Covenant rights States parties must ensure that individuals also have accessible and effective remedies to vindicate those rights. Such remedies should be appropriately adapted so as to take account of the special vulnerability of certain categories of person, including in particular children. The Committee attaches importance to States parties’ establishing appropriate judicial and administrative mechanisms for addressing claims of rights violations under domestic law. The Committee notes that the enjoyment of the rights recognized under the Covenant can be effectively assured by the judiciary in many different ways, including direct applicability of the Covenant, application of comparable constitutional or other provisions of law, or the interpretive effect of the Covenant in the application of national law. Administrative mechanisms are particularly required to give effect to the general obligation to investigate allegations of violations promptly, thoroughly and effectively through independent and impartial bodies. National human rights institutions, endowed with appropriate powers, can contribute to this end. A failure by a State party to investigate allegations of violations could in and of itself give rise to a separate breach of the Covenant. Cessation of an ongoing violation is an essential element of the right to an effective remedy.

16. Article 2, paragraph 3, requires that States parties make reparation to individuals whose Covenant rights have been violated. Without reparation to individuals whose Covenant rights have been violated, the obligation to provide an effective remedy, which is central to the efficacy of article 2, paragraph 3, is not discharged. In addition to the explicit reparation required by articles 9, paragraph 5, and 14, paragraph 6, the Committee considers that the Covenant generally entails appropriate compensation. The Committee notes that, where appropriate, reparation can involve restitution, rehabilitation and measures of satisfaction, such as public apologies, public memorials, guarantees of non-repetition and changes in relevant laws and practices, as well as bringing to justice the perpetrators of human rights violations.

17. In general, the purposes of the Covenant would be defeated without an obligation integral to article 2 to take measures to prevent a recurrence of a violation of the Covenant. Accordingly, it has been a frequent practice of the Committee in cases under the Optional Protocol to include in its Views the need for measures, beyond a victim-specific remedy, to be taken to avoid recurrence of the type of violation in question. Such measures may require changes in the State party’s laws or practices.

18. Where the investigations referred to in paragraph 15 reveal violations of certain Covenant rights, States parties must ensure that those responsible are brought to justice. As with failure to investigate, failure to bring to justice perpetrators of such violations could in and of itself give rise to a separate breach of the Covenant. These obligations arise notably in respect of those violations recognized as criminal under either domestic or international law, such as torture and similar cruel, inhuman and degrading treatment (art. 7), summary and arbitrary killing (art. 6) and enforced disappearance (articles 7 and 9 and, frequently, 6). Indeed, the problem of impunity for these violations, a matter of sustained concern by the Committee, may well be an important contributing element in the recurrence of the violations. When committed as part of a widespread or systematic attack on a civilian population, these violations of the Covenant are crimes against humanity (see Rome Statute of the International Criminal Court, article 7).

Accordingly, where public officials or State agents have committed violations of the Covenant rights referred to in this paragraph, the States parties concerned may not relieve perpetrators from personal responsibility, as has occurred with certain amnesties (see general comment No. 20 (44)) and prior legal immunities and indemnities. Furthermore, no official status justifies persons who may be accused of responsibility for such violations being held immune from legal responsibility. Other impediments to the establishment of legal responsibility should also be removed, such as the defence of obedience to superior orders or unreasonably short periods of statutory limitation in cases where such limitations are applicable. States parties should also assist each other to bring to justice persons suspected of having committed acts in violation of the Covenant that are punishable under domestic or international law.

19. The Committee further takes the view that the right to an effective remedy may in certain circumstances require States parties to provide for and implement provisional or interim measures to avoid continuing violations and to endeavour to repair at the earliest possible opportunity any harm that may have been caused by such violations.

20. Even when the legal systems of States parties are formally endowed with the appropriate remedy, violations of Covenant rights still take place. This is presumably attributable to the failure of the remedies to function effectively in practice. Accordingly, States parties are requested to provide information on the obstacles to the effectiveness of existing remedies in their periodic reports.

12.3. GENERAL RECOMMENDATION ADOPTED BY THE COMMITTEE ON THE ELIMINATION OF RACIAL DISCRIMINATION

Sixty-fifth session (2005)

General recommendation XXXI on the prevention of racial discrimination in the administration and functioning of the criminal justice system

The Committee on the Elimination of Racial Discrimination,

Recalling the definition of racial discrimination set out in article 1 of the International Convention on the Elimination of All Forms of Racial Discrimination,

Recalling the provisions of article 5 (a) of the Convention, under which States parties have an obligation to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the right to equal treatment before the tribunals and all other organs administering justice,

Recalling that article 6 of the Convention requires States parties to assure to everyone within their jurisdiction effective protection and remedies, through the competent national tribunals and other State institutions, against any acts of racial discrimination, as well as the right to seek from such tribunals just and adequate reparation or satisfaction for any damage suffered as a result of such discrimination,

Referring to paragraph 25 of the declaration adopted by the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, held in Durban, South Africa, in 2001, which expressed “profound repudiation of the racism, racial discrimination, xenophobia and related intolerance that persist in some States in the functioning of the penal system and in the application of the law, as well as in the actions and attitudes of institutions and individuals responsible for law enforcement, especially where this has contributed to certain groups being overrepresented among persons under detention or imprisoned”,

Referring to the work of the Commission on Human Rights and of the Sub-Commission on the Promotion and Protection of Human Rights (see E/CN.4/Sub.2/2005/7) concerning discrimination in the criminal justice system,

Bearing in mind the reports of the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance,

Referring to the 1951 Convention relating to the Status of Refugees, in particular article 16, which stipulates that “[a] refugee shall have free access to the courts of law on the territory of all Contracting States”,

Bearing in mind the observations relating to the functioning of the system of justice made in the Committee’s conclusions concerning reports submitted by States parties and in general recommendations XXVII (2000) on discrimination against Roma, XXIX (2002) on discrimination based on descent and XXX (2004) on discrimination against non-citizens,

Convinced that, even though the system of justice may be regarded as impartial and not affected by racism, racial discrimination or xenophobia, when racial or ethnic discrimination does exist in the administration and functioning of the system of justice, it constitutes a particularly serious violation of the rule of law, the principle of equality before the law, the principle of fair trial and the right to an independent and impartial tribunal, through its direct effect on persons belonging to groups which it is the very role of justice to protect,

Considering that no country is free from racial discrimination in the administration and functioning of the criminal justice system, regardless of the type of law applied or the judicial system in force, whether accusatorial, inquisitorial or mixed,

Considering that the risks of discrimination in the administration and functioning of the criminal justice system have increased in recent years, partly as a result of the rise in immigration and population movements, which have prompted prejudice and feelings of xenophobia or intolerance among certain sections of the population and certain law enforcement officials, and partly as a result of the security policies and anti-terrorism measures adopted by many States, which among other things have encouraged the emergence of anti-Arab or anti-Muslim feelings, or, as a reaction, anti-Semitic feelings, in a number of countries,

Determined to combat all forms of discrimination in the administration and functioning of the criminal justice system which may be suffered, in all countries of the world, by persons belonging to racial or ethnic groups, in particular non-citizens - including immigrants, refugees, asylum-seekers and stateless persons - Roma/Gypsies, indigenous peoples, displaced populations, persons discriminated against because of their descent, as well as other vulnerable groups which are particularly exposed to exclusion, marginalization and non-integration in society, paying particular attention to the situation of women and children belonging to the aforementioned groups, who are susceptible to multiple discrimination because of their race and because of their sex or their age,

Formulates the following recommendations addressed to States parties:

I. General steps

A. Steps to be taken in order to better gauge the existence and
extent of racial discrimination in the administration and
functioning of the criminal justice system; the search for
indicators attesting to such discrimination

1. Factual indicators

1. States parties should pay the greatest attention to the following possible indicators of racial discrimination:

(a) The number and percentage of persons belonging to the groups referred to in the last paragraph of the preamble who are victims of aggression or other offences, especially when they are committed by police officers or other State officials;

(b) The absence or small number of complaints, prosecutions and convictions relating to acts of racial discrimination in the country. Such a statistic should not be viewed as necessarily positive, contrary to the belief of some States. It may also reveal either that victims have inadequate information concerning their rights, or that they fear social censure or reprisals, or that victims with limited resources fear the cost and complexity of the judicial process, or that there is a lack of trust in the police and judicial authorities, or that the authorities are insufficiently alert to or aware of offences involving racism;

(c) Insufficient or no information on the behaviour of law enforcement personnel vis-à-vis persons belonging to the groups referred to in the last paragraph of the preamble;

(d) The proportionately higher crime rates attributed to persons belonging to those groups, particularly as regards petty street crime and offences related to drugs and prostitution, as indicators of the exclusion or the non-integration of such persons into society;

(e) The number and percentage of persons belonging to those groups who are held in prison or preventive detention, including internment centres, penal establishments, psychiatric establishments or holding areas in airports;

(f) The handing down by the courts of harsher or inappropriate sentences against persons belonging to those groups;

(g) The insufficient representation of persons belonging to those groups among the ranks of the police, in the system of justice, including judges and jurors, and in other law enforcement departments.

2. In order for these factual indicators to be well known and used, States parties should embark on regular and public collection of information from police, judicial and prison authorities and immigration services, while respecting standards of confidentiality, anonymity and protection of personal data.

3. In particular, States parties should have access to comprehensive statistical or other information on complaints, prosecutions and convictions relating to acts of racism and xenophobia, as well as on compensation awarded to the victims of such acts, whether such compensation is paid by the perpetrators of the offences or under State compensation plans financed from public funds.

2. Legislative indicators

4. The following should be regarded as indicators of potential causes of racial discrimination:

(a) Any gaps in domestic legislation on racial discrimination. In this regard, States parties should fully comply with the requirements of article 4 of the Convention and criminalize all acts of racism as provided by that article, in particular the dissemination of ideas based on racial superiority or hatred, incitement to racial hatred, violence or incitement to racial violence, but also racist propaganda activities and participation in racist organizations. States parties are also encouraged to incorporate a provision in their criminal legislation to the effect that committing offences for racial reasons generally constitutes an aggravating circumstance;

(b) The potential indirect discriminatory effects of certain domestic legislation, particularly legislation on terrorism, immigration, nationality, banning or deportation of non-citizens from a country, as well as legislation that has the effect of penalizing without legitimate grounds certain groups or membership of certain communities. States should seek to eliminate the discriminatory effects of such legislation and in any case to respect the principle of proportionality in its application to persons belonging to the groups referred to in the last paragraph of the preamble.

B. Strategies to be developed to prevent racial discrimination in the administration and functioning of the criminal justice system

5. States parties should pursue national strategies the objectives of which include the following:

(a) To eliminate laws that have an impact in terms of racial discrimination, particularly those which target certain groups indirectly by penalizing acts which can be committed only by persons belonging to such groups, or laws that apply only to non-nationals without legitimate grounds or which do not respect the principle of proportionality;

(b) To develop, through appropriate education programmes, training in respect for human rights, tolerance and friendship among racial or ethnic groups, as well as sensitization to intercultural relations, for law enforcement officials: police personnel, persons working in the system of justice, prison institutions, psychiatric establishments, social and medical services, etc.;

(c) To foster dialogue and cooperation between the police and judicial authorities and the representatives of the various groups referred to in the last paragraph of the preamble, in order to combat prejudice and create a relationship of trust;

(d) To promote proper representation of persons belonging to racial and ethnic groups in the police and the system of justice;

(e) To ensure respect for, and recognition of the traditional systems of justice of indigenous peoples, in conformity with international human rights law;

(f) To make the necessary changes to the prison regime for prisoners belonging to the groups referred to in the last paragraph of the preamble, so as to take into account their cultural and religious practices;

(g) To institute, in situations of mass population movements, the interim measures and arrangements necessary for the operation of the justice system in order to take account of the particularly vulnerable situation of displaced persons, in particular by setting up decentralized courts at the places where the displaced persons are staying or by organizing mobile courts;

(h) To set up, in post-conflict situations, plans for the reconstruction of the legal system and the re-establishment of the rule of law throughout the territory of the countries concerned, by availing themselves, in particular, of the international technical assistance provided by the relevant United Nations entities;

(i) To implement national strategies or plans of action aimed at the elimination of structural racial discrimination. These long-term strategies should include specific objectives and actions as well as indicators against which progress can be measured. They should include, in particular, guidelines for prevention, recording, investigation and prosecution of racist or xenophobic incidents, assessment of the level of satisfaction among all communities concerning their relations with the police and the system of justice, and recruitment and promotion in the judicial system of persons belonging to various racial or ethnic groups;

(j) To entrust an independent national institution with the task of tracking, monitoring and measuring progress made under the national plans of action and guidelines against racial discrimination, identifying undetected manifestations of racial discrimination and submitting recommendations and proposals for improvement.

II. Steps to be taken to prevent racial discrimination with regard to victims of racism

A. Access to the law and to justice

6. In accordance with article 6 of the Convention, States parties are obliged to guarantee the right of every person within their jurisdiction to an effective remedy against the perpetrators of acts of racial discrimination, without discrimination of any kind, whether such acts are committed by private individuals or State officials, as well as the right to seek just and adequate reparation for the damage suffered.

7. In order to facilitate access to justice for the victims of racism, States parties should strive to supply the requisite legal information to persons belonging to the most vulnerable social groups, who are often unaware of their rights.

8. In that regard, States parties should promote, in the areas where such persons live, institutions such as free legal help and advice centres, legal information centres and centres for conciliation and mediation.

9. States parties should also expand their cooperation with associations of lawyers, university institutions, legal advice centres and non-governmental organizations specializing in protecting the rights of marginalized communities and in the prevention of discrimination.

B. Reporting of incidents to the authorities competent for receiving complaints

10. States parties should take the necessary steps to ensure that the police services have an adequate and accessible presence in the neighbourhoods, regions, collective facilities, camps or centres where the persons belonging to the groups referred to in the last paragraph of the preamble reside, so that complaints from such persons can be expeditiously received.

11. The competent services should be instructed to receive the victims of acts of racism in police stations in a satisfactory manner, so that complaints are recorded immediately, investigations are pursued without delay and in an effective, independent and impartial manner, and files relating to racist or xenophobic incidents are retained and incorporated into databases.

12. Any refusal by a police official to accept a complaint involving an act of racism should lead to disciplinary or penal sanctions, and those sanctions should be increased if corruption is involved.

13. Conversely, it should be the right and duty of any police official or State employee to refuse to obey orders or instructions that require him or her to commit violations of human rights, particularly those based on racial discrimination. States parties should guarantee the freedom of any official to invoke this right without fear of punishment.

14. In cases of allegations of torture, ill-treatment or executions, investigations should be conducted in accordance with the Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions i and the Principles on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.ii

C. Initiation of judicial proceedings

15. States parties should remind public prosecutors and members of the prosecution service of the general importance of prosecuting racist acts, including minor offences committed with racist motives, since any racially motivated offence undermines social cohesion and society as a whole.

16. In advance of the initiation of proceedings, States parties could also encourage, with a view to respecting the rights of the victims, the use of parajudicial procedures for conflict resolution, including customary procedures compatible with human rights, mediation or conciliation, which can serve as useful options for the victims of acts of racism and to which less stigma may be attached.

17. In order to make it easier for the victims of acts of racism to bring actions in the courts, the steps to be taken should include the following:

(a) Offering procedural status for the victims of racism and xenophobia and associations for the protection of the rights of such victims, such as an opportunity to associate themselves with the criminal proceedings, or other similar procedures that might enable them to assert their rights in the criminal proceedings, at no cost to themselves;

(b) Granting victims effective judicial cooperation and legal aid, including the assistance of counsel and an interpreter free of charge;

(c) Ensuring that victims have information about the progress of the proceedings;

(d) Guaranteeing protection for the victim or the victim’s family against any form of intimidation or reprisals;

(e) Providing for the possibility of suspending the functions, for the duration of the investigation, of the agents of the State against whom the complaints were made.

18. In countries where there are assistance and compensation plans for victims, States parties should ensure that such plans are available to all victims without discrimination and regardless of their nationality or residential status.

D. Functioning of the system of justice

19. States parties should ensure that the system of justice:

(a) Grants a proper place to victims and their families, as well as witnesses, throughout the proceedings, by enabling complainants to be heard by the judges during the examination proceedings and the court hearing, to have access to information, to confront hostile witnesses, to challenge evidence and to be informed of the progress of proceedings;

(b) Treats the victims of racial discrimination without discrimination or prejudice, while respecting their dignity, through ensuring in particular that hearings, questioning or confrontations are carried out with the necessary sensitivity as far as racism is concerned;

(c) Guarantees the victim a court judgement within a reasonable period;

(d) Guarantees victims just and adequate reparation for the material and moral harm suffered as a result of racial discrimination.

III. Steps to be taken to prevent racial discrimination in regard to accused persons who are subject to judicial proceedings

A. Questioning, interrogation and arrest

20. States parties should take the necessary steps to prevent questioning, arrests and searches which are in reality based solely on the physical appearance of a person, that person’s colour or features or membership of a racial or ethnic group, or any profiling which exposes him or her to greater suspicion.

21. States parties should prevent and most severely punish violence, acts of torture, cruel, inhuman or degrading treatment and all violations of human rights affecting persons belonging to the groups referred to in the last paragraph of the preamble which are committed by State officials, particularly police and army personnel, customs authorities, and persons working in airports, penal institutions and social, medical and psychiatric services.

22. States parties should ensure the observance of the general principle of proportionality and strict necessity in recourse to force against persons belonging to the groups referred to in the last paragraph of the preamble, in accordance with the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials.133

23. States parties should also guarantee to all arrested persons, whatever the racial, national or ethnic group to which they belong, enjoyment of the fundamental rights of the defence enshrined in the relevant international human rights instruments (especially the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights), in particular the right not to be arbitrarily arrested or detained, the right to be informed of the reasons for their arrest, the right to the assistance of an interpreter, the right to the assistance of counsel, the right to be brought promptly before a judge or an authority empowered by the law to perform judicial functions, the right to consular protection guaranteed by article 36 of the Vienna Convention on Consular Relations and, in the case of refugees, the right to contact the Office of the United Nations High Commissioner for Refugees.

24. As regards persons placed in administrative holding centres or in holding areas in airports, States parties should ensure that they enjoy sufficiently decent living conditions.

25. Lastly, as regards the questioning or arrest of persons belonging to the groups referred to in the last paragraph of the preamble, States parties should bear in mind the special precautions to be taken when dealing with women or minors, because of their particular vulnerability.

B. Pretrial detention

26. Bearing in mind statistics which show that persons held awaiting trial include an excessively high number of non-nationals and persons belonging to the groups referred to in the last paragraph of the preamble, States parties should ensure:

(a) That the mere fact of belonging to a racial or ethnic group or one of the aforementioned groups is not a sufficient reason, de jure or de facto, to place a person in pretrial detention. Such pretrial detention can be justified only on objective grounds stipulated in the law, such as the risk of flight, the risk that the person might destroy evidence or influence witnesses, or the risk of a serious disturbance of public order;

(b) That the requirement to deposit a guarantee or financial security in order to obtain release pending trial is applied in a manner appropriate to the situation of persons belonging to such groups, who are often in straitened economic circumstances, so as to prevent this requirement from leading to discrimination against such persons;

(c) That the guarantees often required of accused persons as a condition of their remaining at liberty pending trial (fixed address, declared employment, stable family ties) are weighed in the light of the insecure situation which may result from their membership of such groups, particularly in the case of women and minors;

(d) That persons belonging to such groups who are held pending trial enjoy all the rights to which prisoners are entitled under the relevant international norms, and particularly the rights specially adapted to their circumstances: the right to respect for their traditions as regards religion, culture and food, the right to relations with their families, the right to the assistance of an interpreter and, where appropriate, the right to consular assistance.

C. The trial and the court judgement

27. Prior to the trial, States parties may, where appropriate, give preference to non-judicial or parajudicial procedures for dealing with the offence, taking into account the cultural or customary background of the perpetrator, especially in the case of persons belonging to indigenous peoples.

28. In general, States parties must ensure that persons belonging to the groups referred to in the last paragraph of the preamble, like all other persons, enjoy all the guarantees of a fair trial and equality before the law, as enshrined in the relevant international human rights instruments, and specifically.

1. The right to the presumption of innocence

29. This right implies that the police authorities, the judicial authorities and other public authorities must be forbidden to express their opinions publicly concerning the guilt of the accused before the court reaches a decision, much less to cast suspicion in advance on the members of a specific racial or ethnic group. These authorities have an obligation to ensure that the mass media do not disseminate information which might stigmatize certain categories of persons, particularly those belonging to the groups referred to in the last paragraph of the preamble.

2. The right to the assistance of counsel and the right to an interpreter

30. Effectively guaranteeing these rights implies that States parties must set up a system under which counsel and interpreters will be assigned free of charge, together with legal help or advice and interpretation services for persons belonging to the groups referred to in the last paragraph of the preamble.

3. The right to an independent and impartial tribunal

31. States parties should strive firmly to ensure a lack of any racial or xenophobic prejudice on the part of judges, jury members and other judicial personnel.

32. They should prevent all direct influence by pressure groups, ideologies, religions and churches on the functioning of the system of justice and on the decisions of judges, which may have a discriminatory effect on certain groups.

33. States parties may, in this regard, take into account the Bangalore Principles of Judicial Conduct adopted in 2002 (E/CN.4/2003/65, annex), which recommend in particular that:

− Judges should be aware of the diversity of society and differences linked with background, in particular racial origins;
− They should not, by words or conduct, manifest any bias towards persons or groups on the grounds of their racial or other origin;
− They should carry out their duties with appropriate consideration for all persons, such as the parties, witnesses, lawyers, court staff and their colleagues, without unjustified differentiation; and
− They should oppose the manifestation of prejudice by the persons under their direction and by lawyers or their adoption of discriminatory behaviour towards a person or group on the basis of their colour, racial, national, religious or sexual origin, or on other irrelevant grounds.

D. Guarantee of fair punishment

34. In this regard, States should ensure that the courts do not apply harsher punishments solely because of an accused person’s membership of a specific racial or ethnic group.

35. Special attention should be paid in this regard to the system of minimum punishments and obligatory detention applicable to certain offences and to capital punishment in countries which have not abolished it, bearing in mind reports that this punishment is imposed and carried out more frequently against persons belonging to specific racial or ethnic groups.

36. In the case of persons belonging to indigenous peoples, States parties should give preference to alternatives to imprisonment and to other forms of punishment that are better adapted to their legal system, bearing in mind in particular International Labour Organization Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries.

37. Punishments targeted exclusively at non-nationals that are additional to punishments under ordinary law, such as deportation, expulsion or banning from the country concerned, should be imposed only in exceptional circumstances and in a proportionate manner, for serious reasons related to public order which are stipulated in the law, and should take into account the need to respect the private family life of those concerned and the international protection to which they are entitled.

E. Execution of sentences

38. When persons belonging to the groups referred to in the last paragraph of the preamble are serving prison terms, the States parties should:

(a) Guarantee such persons the enjoyment of all the rights to which prisoners are entitled under the relevant international norms, in particular rights specially adapted to their situation: the right to respect for their religious and cultural practices, the right to respect for their customs as regards food, the right to relations with their families, the right to the assistance of an interpreter, the right to basic welfare benefits and, where appropriate, the right to consular assistance. The medical, psychological or social services offered to prisoners should take their cultural background into account;

(b) Guarantee to all prisoners whose rights have been violated the right to an effective remedy before an independent and impartial authority;

(c) Comply, in this regard, with the United Nations norms in this field, and particularly the Standard Minimum Rules for the Treatment of Prisoners,iv the Basic Principles for the Treatment of Prisoners v and the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment; vi

(d) Allow such persons to benefit, where appropriate, from the provisions of domestic legislation and international or bilateral conventions relating to the transfer of foreign prisoners, offering them an opportunity to serve the prison term in their countries of origin.

39. Further, the independent authorities in the States parties that are responsible for supervising prison institutions should include members who have expertise in the field of racial discrimination and sound knowledge of the problems of racial and ethnic groups and the other vulnerable groups referred to in the last paragraph of the preamble; when necessary, such supervisory authorities should have an effective visit and complaint mechanism.

40. When non-nationals are sentenced to deportation, expulsion or banning from their territory, States parties should comply fully with the obligation of non-refoulement arising out of the international norms concerning refugees and human rights, and ensure that such persons will not be sent back to a country or territory where they would run the risk of serious violations of their human rights.

41. Lastly, with regard to women and children belonging to the groups referred to in the last paragraph of the preamble, States parties should pay the greatest attention possible with a view to ensuring that such persons benefit from the special regime to which they are entitled in relation to the execution of sentences, bearing in mind the particular difficulties faced by mothers of families and women belonging to certain communities, particularly indigenous communities.

Notes:

1. RecommendedR by the Economic and Social Council in its resolution 1989/65 of 24 May 1989.

2. Recommended by the General Assembly in its resolution 55/89 of 4 December 2000.

3. Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, 27 August-7 September 1990.

4. Adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Geneva, 22 August-3 September 1955, and approved by the Economic and Social Council in its resolutions 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977.

5. Adopted and proclaimed by the General Assembly in its resolution 45/111 of 14 December 1990.

6 .Adopted by the General Assembly in its resolution 43/173 of 9 December 1988.

12.4. GENERAL COMMENTS ADOPTED BY THE COMMITTEE ON THE RIGHTS OF THE CHILD

Thirty-first session (2002)

CRC General comment No. 2: The role of independent national human rights institutions in the promotion and protection of the rights of the child

1. Article 4 of the Convention on the Rights of the Child obliges States parties to “undertake all appropriate legislative, administrative and other measures for the implementation of the rights recognized in the present Convention”. Independent national human rights institutions (NHRIs) are an important mechanism to promote and ensure the implementation of the Convention, and the Committee on the Rights of the Child considers the establishment of such bodies to fall within the commitment made by States parties upon ratification to ensure the implementation of the Convention and advance the universal realization of children’s rights. In this regard, the Committee has welcomed the establishment of NHRIs and children’s ombudspersons/children’s commissioners and similar independent bodies for the promotion and monitoring of the implementation of the Convention in a number of States parties.

2. The Committee issues this general comment in order to encourage States parties to establish an independent institution for the promotion and monitoring of implementation of the Convention and to support them in this regard by elaborating the essential elements of such institutions and the activities which should be carried out by them. Where such institutions have already been established, the Committee calls upon States to review their status and effectiveness for promoting and protecting children’s rights, as enshrined in the Convention on the Rights of the Child and other relevant international instruments.

3. The World Conference on Human Rights, held in 1993, in the Vienna Declaration and Programme of Action reaffirmed “... the important and constructive role played by national institutions for the promotion and protection of human rights”, and encouraged “... the establishment and strengthening of national institutions”. The General Assembly and the Commission on Human Rights have repeatedly called for the establishment of national human rights institutions, underlining the important role NHRIs play in promoting and protecting human rights and enhancing public awareness of those rights. In its general guidelines for periodic reports, the Committee requires that States parties furnish information on “any independent body established to promote and protect the rights of the child ...”,133 hence, it consistently addresses this issue during its dialogue with States parties.

4. NHRIs should be established in compliance with the Principles relating to the status of national institutions for the promotion and protection of human rights (the “Paris Principles”) adopted by the General Assembly in 1993133 transmitted by the Commission on Human Rights in 1992.133 These minimum standards provide guidance for the establishment, competence, responsibilities, composition, including pluralism, independence, methods of operation, and quasi-judicial activities of such national bodies.

5. While adults and children alike need independent NHRIs to protect their human rights, additional justifications exist for ensuring that children’s human rights are given special attention. These include the facts that children’s developmental state makes them particularly vulnerable to human rights violations; their opinions are still rarely taken into account; most children have no vote and cannot play a meaningful role in the political process that determines Governments’ response to human rights; children encounter significant problems in using the judicial system to protect their rights or to seek remedies for violations of their rights; and children’s access to organizations that may protect their rights is generally limited.

6. Specialist independent human rights institutions for children, ombudspersons or commissioners for children’s rights have been established in a growing number of States parties. Where resources are limited, consideration must be given to ensuring that the available resources are used most effectively for the promotion and protection of everyone’s human rights, including children’s, and in this context development of a broad-based NHRI that includes a specific focus on children is likely to constitute the best approach. A broad-based NHRI should include within its structure either an identifiable commissioner specifically responsible for children’s rights, or a specific section or division responsible for children’s rights.

7. It is the view of the Committee that every State needs an independent human rights institution with responsibility for promoting and protecting children’s rights. The Committee’s principal concern is that the institution, whatever its form, should be able, independently and effectively, to monitor, promote and protect children’s rights. It is essential that promotion and protection of children’s rights is “mainstreamed” and that all human rights institutions existing in a country work closely together to this end.

Mandate and powers

8. NHRIs should, if possible, be constitutionally entrenched and must at least be legislatively mandated. It is the view of the Committee that their mandate should include as broad a scope as possible for promoting and protecting human rights, incorporating the Convention on the Rights of the Child, its Optional Protocols and other relevant international human rights instruments - thus effectively covering children’s human rights, in particular their civil, political, economic, social and cultural rights. The legislation should include provisions setting out specific functions, powers and duties relating to children linked to the Convention on the Rights of the Child and its Optional Protocols. If the NHRI was established before the existence of the Convention, or without expressly incorporating it, necessary arrangements, including the enactment or amendment of legislation, should be put in place so as to ensure conformity of the institution’s mandate with the principles and provisions of the Convention.9. NHRIs should be accorded such powers as are necessary to enable them to discharge their mandate effectively, including the power to hear any person and obtain any information and document necessary for assessing the situations falling within their competence. These powers should include the promotion and protection of the rights of all children under the jurisdiction of the State party in relation not only to the State but to all relevant public and private entities.

Establishment process

10. The NHRI establishment process should be consultative, inclusive and transparent, initiated and supported at the highest levels of Government and inclusive of all relevant elements of the State, the legislature and civil society. In order to ensure their independence and effective functioning, NHRIs must have adequate infrastructure, funding (including specifically for children’s rights, within broad-based institutions), staff, premises, and freedom from forms of financial control that might affect their independence.

Resources

11. While the Committee acknowledges that this is a very sensitive issue and that State parties function with varying levels of economic resources, the Committee believes that it is the duty of States to make reasonable financial provision for the operation of national human rights institutions in light of article 4 of the Convention. The mandate and powers of national institutions may be meaningless, or the exercise of their powers limited, if the national institution does not have the means to operate effectively to discharge its powers.

Pluralistic representation

12. NHRIs should ensure that their composition includes pluralistic representation of the various elements of civil society involved in the promotion and protection of human rights. They should seek to involve, among others, the following: human rights, anti-discrimination and children’s rights, non-governmental organizations (NGOs), including child- and youth-led organizations; trade unions; social and professional organizations (of doctors, lawyers, journalists, scientists, etc.); universities and experts, including children’s rights experts. Government departments should be involved in an advisory capacity only. NHRIs should have appropriate and transparent appointment procedures, including an open and competitive selection process.

Providing remedies for breaches of children’s rights

13. NHRIs must have the power to consider individual complaints and petitions and carry out investigations, including those submitted on behalf of or directly by children. In order to be able to effectively carry out such investigations, they must have the powers to compel and question witnesses, access relevant documentary evidence and access places of detention. They also have a duty to seek to ensure that children have effective remedies - independent advice, advocacy and complaints procedures - for any breaches of their rights. Where appropriate, NHRIs should undertake mediation and conciliation of complaints.

14. NHRIs should have the power to support children taking cases to court, including the power (a) to take cases concerning children’s issues in the name of the NHRI and (b) to intervene in court cases to inform the court about the human rights issues involved in the case.

Accessibility and participation

15. NHRIs should be geographically and physically accessible to all children. In the spirit of article 2 of the Convention, they should proactively reach out to all groups of children, in particular the most vulnerable and disadvantaged, such as (but not limited to) children in care or detention, children from minority and indigenous groups, children with disabilities, children living in poverty, refugee and migrant children, street children and children with special needs in areas such as culture, language, health and education. NHRI legislation should include the right of the institution to have access in conditions of privacy to children in all forms of alternative care and to all institutions that include children.

16. NHRIs have a key role to play in promoting respect for the views of children in all matters affecting them, as articulated in article 12 of the Convention, by Government and throughout society. This general principle should be applied to the establishment, organization and activities of national human rights institutions. Institutions must ensure that they have direct contact with children and that children are appropriately involved and consulted. Children’s councils, for example, could be created as advisory bodies for NHRIs to facilitate the participation of children in matters of concern to them.

17. NHRIs should devise specially tailored consultation programmes and imaginative communication strategies to ensure full compliance with article 12 of the Convention. A range of suitable ways in which children can communicate with the institution should be established.

18. NHRIs must have the right to report directly, independently and separately on the state of children’s rights to the public and to parliamentary bodies. In this respect, States parties must ensure that an annual debate is held in Parliament to provide parliamentarians with an opportunity to discuss the work of the NHRI in respect of children’s rights and the State’s compliance with the Convention.

Recommended activities

19. The following is an indicative, but not exhaustive, list of the types of activities which NHRIs should carry out in relation to the implementation of children’s rights in light of the general principles of the Convention. They should:

(a) Undertake investigations into any situation of violation of children’s rights, on complaint or on their own initiative, within the scope of their mandate;

(b) Conduct inquiries on matters relating to children’s rights;

(c) Prepare and publicize opinions, recommendations and reports, either at the request of national authorities or on their own initiative, on any matter relating to the promotion and protection of children’s rights;

(d) Keep under review the adequacy and effectiveness of law and practice relating to the protection of children’s rights;

(e) Promote harmonization of national legislation, regulations and practices with the Convention on the Rights of the Child, its Optional Protocols and other international human rights instruments relevant to children’s rights and promote their effective implementation, including through the provision of advice to public and private bodies in construing and applying the Convention;

(f) Ensure that national economic policy makers take children’s rights into account in setting and evaluating national economic and development plans;

(g) Review and report on the Government’s implementation and monitoring of the state of children’s rights, seeking to ensure that statistics are appropriately disaggregated and other information collected on a regular basis in order to determine what must be done to realize children’s rights;

(h) Encourage ratification of or accession to any relevant international human rights instruments;

(i) In accordance with article 3 of the Convention requiring that the best interests of children should be a primary consideration in all actions concerning them, ensure that the impact of laws and policies on children is carefully considered from development to implementation and beyond;

(j) In light of article 12, ensure that the views of children are expressed and heard on matters concerning their human rights and in defining issues relating to their rights;

(k) Advocate for and facilitate meaningful participation by children’s rights NGOs, including organizations comprised of children themselves, in the development of domestic legislation and international instruments on issues affecting children;

(l) Promote public understanding and awareness of the importance of children’s rights and, for this purpose, work closely with the media and undertake or sponsor research and educational activities in the field;

(m) In accordance with article 42 of the Convention which obligates State parties to “make the principles and provisions of the Convention widely known, by appropriate and active means, to adults and children alike”, sensitize the Government, public agencies and the general public to the provisions of the Convention and monitor ways in which the State is meeting its obligations in this regard;

(n) Assist in the formulation of programmes for the teaching of, research into and integration of children’s rights in the curricula of schools and universities and in professional circles;

(o) Undertake human rights education which specifically focuses on children (in addition to promoting general public understanding about the importance of children’s rights);

(p) Take legal proceedings to vindicate children’s rights in the State or provide legal assistance to children;

(q) Engage in mediation or conciliation processes before taking cases to court, where appropriate;

(r) Provide expertise in children’s rights to the courts, in suitable cases as amicus curiae or intervenor;

(s) In accordance with article 3 of the Convention which obliges States parties to “ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision”, undertake visits to juvenile homes (and all places where children are detained for reform or punishment) and care institutions to report on the situation and to make recommendations for improvement;

(t) Undertake such other activities as are incidental to the above.

Reporting to the Committee on the Rights of the Child and cooperation between NHRIs and United Nations agencies and human rights mechanisms

20. NHRIs should contribute independently to the reporting process under the Convention and other relevant international instruments and monitor the integrity of government reports to international treaty bodies with respect to children’s rights, including through dialogue with the Committee on the Rights of the Child at its pre-sessional working group and with other relevant treaty bodies.

21. The Committee requests that States parties include detailed information on the legislative basis and mandate and principal relevant activities of NHRIs in their reports to the Committee. It is appropriate for States parties to consult with independent human rights institutions during the preparation of reports to the Committee. However, States parties must respect the independence of these bodies and their independent role in providing information to the Committee. It is not appropriate to delegate to NHRIs the drafting of reports or to include them in the government delegation when reports are examined by the Committee.

22. NHRIs should also cooperate with the special procedures of the Commission on Human Rights, including country and thematic mechanisms, in particular the Special Rapporteur on the sale of children, child prostitution and child pornography and the Special Representative of the Secretary-General for Children and Armed Conflict.

23. The United Nations has a long-standing programme of assistance for the establishment and strengthening of national human rights institutions. This programme, which is based in the Office of the High Commissioner for Human Rights (OHCHR), provides technical assistance and facilitates regional and global cooperation and exchanges among national human rights institutions. States parties should avail themselves of this assistance where necessary. The United Nations Children’s Fund (UNICEF) also offers expertise and technical cooperation in this area.

24. As articulated in article 45 of the Convention, the Committee may also transmit, as it considers appropriate, to any specialized United Nations agency, OHCHR and any other competent body any reports from States parties that contain a request or indicate a need for technical advice or assistance in the establishment of NHRIs.

NHRIs and States parties

25. The State ratifies the Convention on the Rights of the Child and takes on obligations to implement it fully. The role of NHRIs is to monitor independently the State’s compliance and progress towards implementation and to do all it can to ensure full respect for children’s rights. While this may require the institution to develop projects to enhance the promotion and protection of children’s rights, it should not lead to the Government delegating its monitoring obligations to the national institution. It is essential that institutions remain entirely free to set their own agenda and determine their own activities.

NHRIs and NGOs

26. Non-governmental organizations play a vital role in promoting human rights and children’s rights. The role of NHRIs, with their legislative base and specific powers, is complementary. It is essential that institutions work closely with NGOs and that Governments respect the independence of both NHRIs and NGOs.

Regional and international cooperation

27. Regional and international processes and mechanisms can strengthen and consolidate NHRIs through shared experience and skills, as NHRIs share common problems in the promotion and protection of human rights in their respective countries.

28. In this respect, NHRIs should consult and cooperate with relevant national, regional and international bodies and institutions on children’s rights issues.

29. Children’s human rights issues are not constrained by national borders and it has become increasingly necessary to devise appropriate regional and international responses to a variety of child rights issues (including, but not limited to, the trafficking of women and children, child pornography, child soldiers, child labour, child abuse, refugee and migrant children, etc.). International and regional mechanisms and exchanges are encouraged, as they provide NHRIs with an opportunity to learn from each other’s experience, collectively strengthen each other’s positions and contribute to resolving human rights problems affecting both countries and region.

Notes

1. General guidelines regarding the form and contents of periodic reports to be submitted by States parties under article 44, paragraph 1 (b), of the Convention (CRC/C/58), para. 18.

2. Principles relating to the status of national institutions for the promotion and protection of human rights (the “Paris Principles”), General Assembly resolution 48/134 of 20 December 1993, annex.

3.Commission on Human Rights resolution 1992/54 of 3 March 1992, annex

Thirty-fourth session (2003)

CRC General comment No. 5: General measures of implementation of the Convention on the Rights of the Child (arts. 4, 42 and 44, para. 6)

Foreword

1. The Committee on the Rights of the Child has drafted this general comment to outline States parties’ obligations to develop what it has termed “general measures of implementation”. The various elements of the concept are complex and the Committee emphasizes that it is likely to issue more detailed general comments on individual elements in due course, to expand on this outline. Its general comment No. 2 (2002) entitled “The role of independent national human rights institutions in the protection and promotion of the rights of the child” has already expanded on this concept.

Article 4

“States parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention. With regard to economic, social and cultural rights, States parties shall undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international cooperation.”

I. Introduction

2. When a State ratifies the Convention on the Rights of the Child, it takes on obligations under international law to implement it. Implementation is the process whereby States parties take action to ensure the realization of all rights in the Convention for all children in their jurisdiction.i Article 4 requires States parties to take “all appropriate legislative, administrative and other measures” for implementation of the rights contained therein. While it is the State which takes on obligations under the Convention, its task of implementation - of making reality of the human rights of children - needs to engage all sectors of society and, of course, children themselves. Ensuring that all domestic legislation is fully compatible with the Convention and that the Convention’s principles and provisions can be directly applied and appropriately enforced is fundamental. In addition, the Committee on the Rights of the Child has identified a wide range of measures that are needed for effective implementation, including the development of special structures and monitoring, training and other activities in Government, parliament and the judiciary at all levels.ii

3. In its periodic examination of States parties’ reports under the Convention, the Committee pays particular attention to what it has termed “general measures of implementation”. In its concluding observations issued following examination, the Committee provides specific recommendations relating to general measures. It expects the State party to describe action taken in response to these recommendations in its subsequent periodic report. The Committee’s reporting guidelines arrange the Convention’s articles in clusters,133 the first being on “general measures of implementation” and groups article 4 with article 42 (the obligation to make the content of the Convention widely known to children and adults; see paragraph 66 below) and article 44, paragraph 6 (the obligation to make reports widely available within the State; see paragraph 71 below).

4. In addition to these provisions, other general implementation obligations are set out in article 2: “States parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind ...”.

5. Also under article 3, paragraph 2, “States parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.”

6. In international human rights law, there are articles similar to article 4 of the Convention, setting out overall implementation obligations, such as article 2 of the International Covenant on Civil and Political Rights and article 2 of the International Covenant on Economic, Social and Cultural Rights. The Human Rights Committee and the Committee on Economic, Social and Cultural Rights have issued general comments in relation to these provisions which should be seen as complementary to the present general comment and which are referred to below. iv

7. Article 4, while reflecting States parties’ overall implementation obligations, suggests a distinction between civil and political rights and economic, social and cultural rights in its second sentence: “With regard to economic, social and cultural rights, States parties shall undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international cooperation.” There is no simple or authoritative division of human rights in general or of Convention rights into the two categories. The Committee’s reporting guidelines group articles 7, 8, 13-17 and 37 (a) under the heading “Civil rights and freedoms”, but indicate by the context that these are not the only civil and political rights in the Convention. Indeed, it is clear that many other articles, including articles 2, 3, 6 and 12 of the Convention, contain elements which constitute civil/political rights, thus reflecting the interdependence and indivisibility of all human rights. Enjoyment of economic, social and cultural rights is inextricably intertwined with enjoyment of civil and political rights. As noted in paragraph 25 below, the Committee believes that economic, social and cultural rights, as well as civil and political rights, should be regarded as justiciable.

8. The second sentence of article 4 reflects a realistic acceptance that lack of resources - financial and other resources - can hamper the full implementation of economic, social and cultural rights in some States; this introduces the concept of “progressive realization” of such rights: States need to be able to demonstrate that they have implemented “to the maximum extent of their available resources” and, where necessary, have sought international cooperation. When States ratify the Convention, they take upon themselves obligations not only to implement it within their jurisdiction, but also to contribute, through international cooperation, to global implementation (see paragraph 60 below).

9. The sentence is similar to the wording used in the International Covenant on Economic, Social and Cultural Rights and the Committee entirely concurs with the Committee on Economic, Social and Cultural Rights in asserting that “even where the available resources are demonstrably inadequate, the obligation remains for a State party to strive to ensure the widest possible enjoyment of the relevant rights under the prevailing circumstances ...”.v Whatever their economic circumstances, States are required to undertake all possible measures towards the realization of the rights of the child, paying special attention to the most disadvantaged groups.

10. The general measures of implementation identified by the Committee and described in the present general comment are intended to promote the full enjoyment of all rights in the Convention by all children, through legislation, the establishment of coordinating and monitoring bodies - governmental and independent - comprehensive data collection, awareness-raising and training and the development and implementation of appropriate policies, services and programmes. One of the satisfying results of the adoption and almost universal ratification of the Convention has been the development at the national level of a wide variety of new child-focused and child-sensitive bodies, structures and activities - children’s rights units at the heart of Government, ministers for children, inter-ministerial committees on children, parliamentary committees, child impact analysis, children’s budgets and “state of children’s rights” reports, NGO coalitions on children’s rights, children’s ombudspersons and children’s rights commissioners and so on.

11. While some of these developments may seem largely cosmetic, their emergence at the least indicates a change in the perception of the child’s place in society, a willingness to give higher political priority to children and an increasing sensitivity to the impact of governance on children and their human rights.

12. The Committee emphasizes that, in the context of the Convention, States must see their role as fulfilling clear legal obligations to each and every child. Implementation of the human rights of children must not be seen as a charitable process, bestowing favours on children.

The development of a children’s rights perspective throughout Government, parliament and the judiciary is required for effective implementation of the whole Convention and, in particular, in the light of the following articles in the Convention identified by the Committee as general principles:

Article 2: the obligation of States to respect and ensure the rights set forth in the Convention to each child within their jurisdiction without discrimination of any kind. This non-discrimination obligation requires States actively to identify individual children and groups of children the recognition and realization of whose rights may demand special measures. For example, the Committee highlights, in particular, the need for data collection to be disaggregated to enable discrimination or potential discrimination to be identified. Addressing discrimination may require changes in legislation, administration and resource allocation, as well as educational measures to change attitudes. It should be emphasized that the application of the non-discrimination principle of equal access to rights does not mean identical treatment. A general comment by the Human Rights Committee has underlined the importance of taking special measures in order to diminish or eliminate conditions that cause discrimination. vi
Article 3 (1): the best interests of the child as a primary consideration in all actions concerning children. The article refers to actions undertaken by “public or private social welfare institutions, courts of law, administrative authorities or legislative bodies”. The principle requires active measures throughout Government, parliament and the judiciary. Every legislative, administrative and judicial body or institution is required to apply the best interests principle by systematically considering how children’s rights and interests are or will be affected by their decisions and actions - by, for example, a proposed or existing law or policy or administrative action or court decision, including those which are not directly concerned with children, but indirectly affect children.
Article 6: the child’s inherent right to life and States parties’ obligation to ensure to the maximum extent possible the survival and development of the child. The Committee expects States to interpret “development” in its broadest sense as a holistic concept, embracing the child’s physical, mental, spiritual, moral, psychological and social development. Implementation measures should be aimed at achieving the optimal development for all children.
Article 12: the child’s right to express his or her views freely in “all matters affecting the child”, those views being given due weight. This principle, which highlights the role of the child as an active participant in the promotion, protection and monitoring of his or her rights, applies equally to all measures adopted by States to implement the Convention.
Opening government decision-making processes to children is a positive challenge which the Committee finds States are increasingly responding to. Given that few States as yet have reduced the voting age below 18, there is all the more reason to ensure respect for the views of unenfranchised children in Government and parliament. If consultation is to be meaningful, documents as well as processes need to be made accessible. But appearing to “listen” to children is relatively unchallenging; giving due weight to their views requires real change. Listening to children should not be seen as an end in itself, but rather as a means by which States make their interactions with children and their actions on behalf of children ever more sensitive to the implementation of children’s rights.
One-off or regular events like Children’s Parliaments can be stimulating and raise general awareness. But article 12 requires consistent and ongoing arrangements. Involvement of and consultation with children must also avoid being tokenistic and aim to ascertain representative views. The emphasis on “matters that affect them” in article 12 (1) implies the ascertainment of the views of particular groups of children on particular issues - for example children who have experience of the juvenile justice system on proposals for law reform in that area, or adopted children and children in adoptive families on adoption law and policy. It is important that Governments develop a direct relationship with children, not simply one mediated through non-governmental organizations (NGOs) or human rights institutions. In the early years of the Convention, NGOs had played a notable role in pioneering participatory approaches with children, but it is in the interests of both Governments and children to have appropriate direct contact.

II. Review of reservations

13. In its reporting guidelines on general measures of implementation, the Committee starts by inviting the State party to indicate whether it considers it necessary to maintain the reservations it has made, if any, or has the intention of withdrawing them vii States parties to the Convention are entitled to make reservations at the time of their ratification of or accession to it (art. 51). The Committee’s aim of ensuring full and unqualified respect for the human rights of children can be achieved only if States withdraw their reservations. It consistently recommends during its examination of reports that reservations be reviewed and withdrawn. Where a State, after review, decides to maintain a reservation, the Committee requests that a full explanation be included in the next periodic report. The Committee draws the attention of States parties to the encouragement given by the World Conference on Human Rights to the review and withdrawal of reservations. viii

14. Article 2 of the Vienna Convention on the Law of Treaties defines “reservation” as a “unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a Treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the Treaty in their application to that State”. The Vienna Convention notes that States are entitled, at the time of ratification or accession to a treaty, to make a reservation unless it is “incompatible with the object and purpose of the treaty” (art. 19).

15. Article 51, paragraph 2, of the Convention on the Rights of the Child reflects this: “A reservation incompatible with the object and purpose of the present Convention shall not be permitted.” The Committee is deeply concerned that some States have made reservations which plainly breach article 51 (2) by suggesting, for example, that respect for the Convention is limited by the State’s existing Constitution or legislation, including in some cases religious law. Article 27 of the Vienna Convention on the Law of Treaties provides: “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.”

16. The Committee notes that, in some cases, States parties have lodged formal objections to such wide-ranging reservations made by other States parties. It commends any action which contributes to ensuring the fullest possible respect for the Convention in all States parties.

III. Ratification of other key international human rights instruments

17. As part of its consideration of general measures of implementation, and in the light of the principles of indivisibility and interdependence of human rights, the Committee consistently urges States parties, if they have not already done so, to ratify the two Optional Protocols to the Convention on the Rights of the Child (on the involvement of children in armed conflict and on the sale of children, child prostitution and child pornography) and the six other major international human rights instruments. During its dialogue with States parties the Committee often encourages them to consider ratifying other relevant international instruments. A non-exhaustive list of these instruments is annexed to the present general comment, which the Committee will update from time to time.

IV. Legislative measures

18. The Committee believes a comprehensive review of all domestic legislation and related administrative guidance to ensure full compliance with the Convention is an obligation. Its experience in examining not only initial but now second and third periodic reports under the Convention suggests that the review process at the national level has, in most cases, been started, but needs to be more rigorous. The review needs to consider the Convention not only article by article, but also holistically, recognizing the interdependence and indivisibility of human rights. The review needs to be continuous rather than one-off, reviewing proposed as well as existing legislation. And while it is important that this review process should be built into the machinery of all relevant government departments, it is also advantageous to have independent review by, for example, parliamentary committees and hearings, national human rights institutions, NGOs, academics, affected children and young people and others.

19. States parties need to ensure, by all appropriate means, that the provisions of the Convention are given legal effect within their domestic legal systems. This remains a challenge in many States parties. Of particular importance is the need to clarify the extent of applicability of the Convention in States where the principle of “self-execution” applies and others where it is claimed that the Convention “has constitutional status” or has been incorporated into domestic law.

20. The Committee welcomes the incorporation of the Convention into domestic law, which is the traditional approach to the implementation of international human rights instruments in some but not all States. Incorporation should mean that the provisions of the Convention can be directly invoked before the courts and applied by national authorities and that the Convention will prevail where there is a conflict with domestic legislation or common practice. Incorporation by itself does not avoid the need to ensure that all relevant domestic law, including any local or customary law, is brought into compliance with the Convention. In case of any conflict in legislation, predominance should always be given to the Convention, in the light of article 27 of the Vienna Convention on the Law of Treaties. Where a State delegates powers to legislate to federated regional or territorial governments, it must also require these subsidiary governments to legislate within the framework of the Convention and to ensure effective implementation (see also paragraphs 40 et seq. below).

21. Some States have suggested to the Committee that the inclusion in their Constitution of guarantees of rights for “everyone” is adequate to ensure respect for these rights for children. The test must be whether the applicable rights are truly realized for children and can be directly invoked before the courts. The Committee welcomes the inclusion of sections on the rights of the child in national constitutions, reflecting key principles in the Convention, which helps to underline the key message of the Convention - that children alongside adults are holders of human rights. But this inclusion does not automatically ensure respect for the rights of children. In order to promote the full implementation of these rights, including, where appropriate, the exercise of rights by children themselves, additional legislative and other measures may be necessary.

22. The Committee emphasizes, in particular, the importance of ensuring that domestic law reflects the identified general principles in the Convention (arts. 2, 3, 6 and 12 (see paragraph 12 above)). The Committee welcomes the development of consolidated children’s rights statutes, which can highlight and emphasize the Convention’s principles. But the Committee emphasizes that it is crucial in addition that all relevant “sectoral” laws (on education, health, justice and so on) reflect consistently the principles and standards of the Convention.

23. The Committee encourages all States parties to enact and implement within their jurisdiction legal provisions that are more conducive to the realization of the rights of the child than those contained in the Convention, in the light of article 41. The Committee emphasizes that the other international human rights instruments apply to all persons below the age of 18 years.

V. Justiciability of rights

24. For rights to have meaning, effective remedies must be available to redress violations. This requirement is implicit in the Convention and consistently referred to in the other six major international human rights treaties. Children’s special and dependent status creates real difficulties for them in pursuing remedies for breaches of their rights. So States need to give particular attention to ensuring that there are effective, child-sensitive procedures available to children and their representatives. These should include the provision of child-friendly information, advice, advocacy, including support for self-advocacy, and access to independent complaints procedures and to the courts with necessary legal and other assistance. Where rights are found to have been breached, there should be appropriate reparation, including compensation, and, where needed, measures to promote physical and psychological recovery, rehabilitation and reintegration, as required by article 39.

25. As noted in paragraph 6 above, the Committee emphasizes that economic, social and cultural rights, as well as civil and political rights, must be regarded as justiciable. It is essential that domestic law sets out entitlements in sufficient detail to enable remedies for non-compliance to be effective.

VI. Administrative and other measures

26. The Committee cannot prescribe in detail the measures which each or every State party will find appropriate to ensure effective implementation of the Convention. But from its first decade’s experience of examining States parties’ reports and from its ongoing dialogue with Governments and with the United Nations and United Nations-related agencies, NGOs and other competent bodies, it has distilled here some key advice for States.

27. The Committee believes that effective implementation of the Convention requires visible cross-sectoral coordination to recognize and realize children’s rights across Government, between different levels of government and between Government and civil society - including in particular children and young people themselves. Invariably, many different government departments and other governmental or quasi-governmental bodies affect children’s lives and children’s enjoyment of their rights. Few, if any, government departments have no effect on children’s lives, direct or indirect. Rigorous monitoring of implementation is required, which should be built into the process of government at all levels but also independent monitoring by national human rights institutions, NGOs and others.

A. Developing a comprehensive national strategy rooted in the Convention

28. If Government as a whole and at all levels is to promote and respect the rights of the child, it needs to work on the basis of a unifying, comprehensive and rights-based national strategy, rooted in the Convention.

29. The Committee commends the development of a comprehensive national strategy or national plan of action for children, built on the framework of the Convention. The Committee expects States parties to take account of the recommendations in its concluding observations on their periodic reports when developing and/or reviewing their national strategies. If such a strategy is to be effective, it needs to relate to the situation of all children, and to all the rights in the Convention. It will need to be developed through a process of consultation, including with children and young people and those living and working with them. As noted above (para. 12), meaningful consultation with children requires special child-sensitive materials and processes; it is not simply about extending to children access to adult processes.

30. Particular attention will need to be given to identifying and giving priority to marginalized and disadvantaged groups of children. The non-discrimination principle in the Convention requires that all the rights guaranteed by the Convention should be recognized for all children within the jurisdiction of States. As noted above (para. 12), the non-discrimination principle does not prevent the taking of special measures to diminish discrimination.

31. To give the strategy authority, it will need to be endorsed at the highest level of government. Also, it needs to be linked to national development planning and included in national budgeting; otherwise, the strategy may remain marginalized outside key decision-making processes.

32. The strategy must not be simply a list of good intentions; it must include a description of a sustainable process for realizing the rights of children throughout the State; it must go beyond statements of policy and principle, to set real and achievable targets in relation to the full range of economic, social and cultural and civil and political rights for all children. The comprehensive national strategy may be elaborated in sectoral national plans of action - for example for education and health - setting out specific goals, targeted implementation measures and allocation of financial and human resources. The strategy will inevitably set priorities, but it must not neglect or dilute in any way the detailed obligations which States parties have accepted under the Convention. The strategy needs to be adequately resourced, in human and financial terms.

33. Developing a national strategy is not a one-off task. Once drafted the strategy will need to be widely disseminated throughout Government and to the public, including children (translated into child-friendly versions as well as into appropriate languages and forms). The strategy will need to include arrangements for monitoring and continuous review, for regular updating and for periodic reports to parliament and to the public.

34. The “national plans of action” which States were encouraged to develop following the first World Summit for Children, held in 1990, were related to the particular commitments set by nations attending the Summit.133 In 1993, the Vienna Declaration and Programme of Action, adopted by the World Conference on Human Rights, called on States to integrate the Convention on the Rights of the Child into their national human rights action plans.133

35. The outcome document of the United Nations General Assembly special session on children, in 2002, also commits States “to develop or strengthen as a matter of urgency if possible by the end of 2003 national and, where appropriate, regional action plans with a set of specific time-bound and measurable goals and targets based on this plan of action ...”.133 The Committee welcomes the commitments made by States to achieve the goals and targets set at the special session on children and identified in the outcome document, A World Fit for Children. But the Committee emphasizes that making particular commitments at global meetings does not in any way reduce States parties’ legal obligations under the Convention. Similarly, preparing specific plans of action in response to the special session does not reduce the need for a comprehensive implementation strategy for the Convention. States should integrate their response to the 2002 special session and to other relevant global conferences into their overall implementation strategy for the Convention as a whole.

36. The outcome document also encourages States parties to “consider including in their reports to the Committee on the Rights of the Child information on measures taken and results achieved in the implementation of the present Plan of Action”.133 The Committee endorses this proposal; it is committed to monitoring progress towards meeting the commitments made at the special session and will provide further guidance in its revised guidelines for periodic reporting under the Convention.

B. Coordination of implementation of children’s rights

37. In examining States parties’ reports the Committee has almost invariably found it necessary to encourage further coordination of government to ensure effective implementation: coordination among central government departments, among different provinces and regions, between central and other levels of government and between Government and civil society. The purpose of coordination is to ensure respect for all of the Convention’s principles and standards for all children within the State jurisdiction; to ensure that the obligations inherent in ratification of or accession to the Convention are not only recognized by those large departments which have a substantial impact on children - education, health or welfare and so on - but right across Government, including for example departments concerned with finance, planning, employment and defence, and at all levels.

38. The Committee believes that, as a treaty body, it is not advisable for it to attempt to prescribe detailed arrangements appropriate for very different systems of government across States parties. There are many formal and informal ways of achieving effective coordination, including for example inter-ministerial and interdepartmental committees for children. The Committee proposes that States parties, if they have not already done so, should review the machinery of government from the perspective of implementation of the Convention and in particular of the four articles identified as providing general principles (see paragraph 12 above).

39. Many States parties have with advantage developed a specific department or unit close to the heart of Government, in some cases in the President’s or Prime Minister’s or Cabinet office, with the objective of coordinating implementation and children’s policy. As noted above, the actions of virtually all government departments impact on children’s lives. It is not practicable to bring responsibility for all children’s services together into a single department, and in any case doing so could have the danger of further marginalizing children in Government. But a special unit, if given high-level authority - reporting directly, for example, to the Prime Minister, the President or a Cabinet Committee on children - can contribute both to the overall purpose of making children more visible in Government and to coordination to ensure respect for children’s rights across Government and at all levels of Government. Such a unit can be given responsibility for developing the comprehensive children’s strategy and monitoring its implementation, as well as for coordinating reporting under the Convention.

C. Decentralization, federalization and delegation

40. The Committee has found it necessary to emphasize to many States that decentralization of power, through devolution and delegation of government, does not in any way reduce the direct responsibility of the State party’s Government to fulfil its obligations to all children within its jurisdiction, regardless of the State structure.

41. The Committee reiterates that in all circumstances the State which ratified or acceded to the Convention remains responsible for ensuring the full implementation of the Convention throughout the territories under its jurisdiction. In any process of devolution, States parties have to make sure that the devolved authorities do have the necessary financial, human and other resources effectively to discharge responsibilities for the implementation of the Convention. The Governments of States parties must retain powers to require full compliance with the Convention by devolved administrations or local authorities and must establish permanent monitoring mechanisms to ensure that the Convention is respected and applied for all children within its jurisdiction without discrimination. Further, there must be safeguards to ensure that decentralization or devolution does not lead to discrimination in the enjoyment of rights by children in different regions.

D. Privatization

42. The process of privatization of services can have a serious impact on the recognition and realization of children’s rights. The Committee devoted its 2002 day of general discussion to the theme “The private sector as service provider and its role in implementing child rights”, defining the private sector as including businesses, NGOs and other private associations, both for profit and not-for-profit. Following that day of general discussion, the Committee adopted detailed recommendations to which it draws the attention of States parties.133

43. The Committee emphasizes that States parties to the Convention have a legal obligation to respect and ensure the rights of children as stipulated in the Convention, which includes the obligation to ensure that non-State service providers operate in accordance with its provisions, thus creating indirect obligations on such actors.

44. The Committee emphasizes that enabling the private sector to provide services, run institutions and so on does not in any way lessen the State’s obligation to ensure for all children within its jurisdiction the full recognition and realization of all rights in the Convention (arts. 2 (1) and 3 (2)). Article 3 (1) establishes that the best interests of the child shall be a primary consideration in all actions concerning children, whether undertaken by public or private bodies. Article 3 (3) requires the establishment of appropriate standards by competent bodies (bodies with the appropriate legal competence), in particular, in the areas of health, and with regard to the number and suitability of staff. This requires rigorous inspection to ensure compliance with the Convention. The Committee proposes that there should be a permanent monitoring mechanism or process aimed at ensuring that all State and non-State service providers respect the Convention.

E. Monitoring implementation - the need for child impact assessment and evaluation

45. Ensuring that the best interests of the child are a primary consideration in all actions concerning children (art. 3 (1)), and that all the provisions of the Convention are respected in legislation and policy development and delivery at all levels of government demands a continuous process of child impact assessment (predicting the impact of any proposed law, policy or budgetary allocation which affects children and the enjoyment of their rights) and child impact evaluation (evaluating the actual impact of implementation). This process needs to be built into government at all levels and as early as possible in the development of policy.

46. Self-monitoring and evaluation is an obligation for Governments. But the Committee also regards as essential the independent monitoring of progress towards implementation by, for example, parliamentary committees, NGOs, academic institutions, professional associations, youth groups and independent human rights institutions (see paragraph 65 below).

47. The Committee commends certain States which have adopted legislation requiring the preparation and presentation to parliament and/or the public of formal impact analysis statements. Every State should consider how it can ensure compliance with article 3 (1) and do so in a way which further promotes the visible integration of children in policy-making and sensitivity to their rights.

F. Data collection and analysis and development of indicators

48. Collection of sufficient and reliable data on children, disaggregated to enable identification of discrimination and/or disparities in the realization of rights, is an essential part of implementation. The Committee reminds States parties that data collection needs to extend over the whole period of childhood, up to the age of 18 years. It also needs to be coordinated throughout the jurisdiction, ensuring nationally applicable indicators. States should collaborate with appropriate research institutes and aim to build up a complete picture of progress towards implementation, with qualitative as well as quantitative studies. The reporting guidelines for periodic reports call for detailed disaggregated statistical and other information covering all areas of the Convention. It is essential not merely to establish effective systems for data collection, but to ensure that the data collected are evaluated and used to assess progress in implementation, to identify problems and to inform all policy development for children. Evaluation requires the development of indicators related to all rights guaranteed by the Convention.

49. The Committee commends States parties which have introduced annual publication of comprehensive reports on the state of children’s rights throughout their jurisdiction. Publication and wide dissemination of and debate on such reports, including in parliament, can provide a focus for broad public engagement in implementation. Translations, including child-friendly versions, are essential for engaging children and minority groups in the process.

50. The Committee emphasizes that, in many cases, only children themselves are in a position to indicate whether their rights are being fully recognized and realized. Interviewing children and using children as researchers (with appropriate safeguards) is likely to be an important way of finding out, for example, to what extent their civil rights, including the crucial right set out in article 12, to have their views heard and given due consideration, are respected within the family, in schools and so on.

G. Making children visible in budgets

51. In its reporting guidelines and in the consideration of States parties’ reports, the Committee has paid much attention to the identification and analysis of resources for children in national and other budgets.133 No State can tell whether it is fulfilling children’s economic, social and cultural rights “to the maximum extent of ... available resources”, as it is required to do under article 4, unless it can identify the proportion of national and other budgets allocated to the social sector and, within that, to children, both directly and indirectly. Some States have claimed it is not possible to analyse national budgets in this way. But others have done it and publish annual “children’s budgets”. The Committee needs to know what steps are taken at all levels of Government to ensure that economic and social planning and decision-making and budgetary decisions are made with the best interests of children as a primary consideration and that children, including in particular marginalized and disadvantaged groups of children, are protected from the adverse effects of economic policies or financial downturns.

52. Emphasizing that economic policies are never neutral in their effect on children’s rights, the Committee has been deeply concerned by the often negative effects on children of structural adjustment programmes and transition to a market economy. The implementation duties of article 4 and other provisions of the Convention demand rigorous monitoring of the effects of such changes and adjustment of policies to protect children’s economic, social and cultural rights.

H. Training and capacity-building

53. The Committee emphasizes States’ obligation to develop training and capacity-building for all those involved in the implementation process - government officials, parliamentarians and members of the judiciary - and for all those working with and for children. These include, for example, community and religious leaders, teachers, social workers and other professionals, including those working with children in institutions and places of detention, the police and armed forces, including peacekeeping forces, those working in the media and many others. Training needs to be systematic and ongoing - initial training and retraining. The purpose of training is to emphasize the status of the child as a holder of human rights, to increase knowledge and understanding of the Convention and to encourage active respect for all its provisions. The Committee expects to see the Convention reflected in professional training curricula, codes of conduct and educational curricula at all levels. Understanding and knowledge of human rights must, of course, be promoted among children themselves, through the school curriculum and in other ways (see also paragraph 69 below and the Committee’s general comment No. 1 (2001) on the aims of education).

54. The Committee’s guidelines for periodic reports mention many aspects of training, including specialist training, which are essential if all children are to enjoy their rights. The Convention highlights the importance of the family in its preamble and in many articles. It is particularly important that the promotion of children’s rights should be integrated into preparation for parenthood and parenting education.

55. There should be periodic evaluation of the effectiveness of training, reviewing not only knowledge of the Convention and its provisions but also the extent to which it has contributed to developing attitudes and practice which actively promote enjoyment by children of their rights.

I. Cooperation with civil society

56. Implementation is an obligation for States parties, but needs to engage all sectors of society, including children themselves. The Committee recognizes that responsibilities to respect and ensure the rights of children extend in practice beyond the State and State-controlled services and institutions to include children, parents and wider families, other adults, and non-State services and organizations. The Committee concurs, for example, with general comment No. 14 (2000) of the Committee on Economic, Social and Cultural Rights on the right to the highest attainable standard of health, paragraph 42, of which states: “While only States are parties to the Covenant and thus ultimately accountable for compliance with it, all members of society - individuals, including health professionals, families, local communities, intergovernmental and non-governmental organizations, civil society organizations, as well as the private business sector - have responsibilities regarding the realization of the right to health. States parties should therefore provide an environment which facilitates the discharge of these responsibilities.”

57. Article 12 of the Convention, as already emphasized (see paragraph 12 above), requires due weight to be given to children’s views in all matters affecting them, which plainly includes implementation of “their” Convention.

58. The State needs to work closely with NGOs in the widest sense, while respecting their autonomy; these include, for example, human rights NGOs, child- and youth-led organizations and youth groups, parent and family groups, faith groups, academic institutions and professional associations. NGOs played a crucial part in the drafting of the Convention and their involvement in the process of implementation is vital.

59. The Committee welcomes the development of NGO coalitions and alliances committed to promoting, protecting and monitoring children’s human rights and urges Governments to give them non-directive support and to develop positive formal as well as informal relationships with them. The engagement of NGOs in the reporting process under the Convention, coming within the definition of “competent bodies” under article 45 (a), has in many cases given a real impetus to the process of implementation as well as reporting. The NGO Group for the Convention on the Rights of the Child has a very welcome, strong and supportive impact on the reporting process and other aspects of the Committee’s work. The Committee underlines in its reporting guidelines that the process of preparing a report “should encourage and facilitate popular participation and public scrutiny of government policies”.133 The media can be valuable partners in the process of implementation (see also paragraph 70).

J. International cooperation

60. Article 4 emphasizes that implementation of the Convention is a cooperative exercise for the States of the world. This article and others in the Convention highlight the need for international cooperation.133 The Charter of the United Nations (Arts. 55 and 56) identifies the overall purposes of international economic and social cooperation, and members pledge themselves under the Charter “to take joint and separate action in cooperation with the Organization” to achieve these purposes. In the United Nations Millennium Declaration and at other global meetings, including the United Nations General Assembly special session on children, States have pledged themselves, in particular, to international cooperation to eliminate poverty.

61. The Committee advises States parties that the Convention should form the framework for international development assistance related directly or indirectly to children and that programmes of donor States should be rights-based. The Committee urges States to meet internationally agreed targets, including the United Nations target for international development assistance of 0.7 per cent of gross domestic product. This goal was reiterated along with other targets in the Monterrey Consensus, arising from the 2002 International Conference on Financing for Development.133 The Committee encourages States parties that receive international aid and assistance to allocate a substantive part of that aid specifically to children. The Committee expects States parties to be able to identify on a yearly basis the amount and proportion of international support earmarked for the implementation of children’s rights.

62. The Committee endorses the aims of the 20/20 initiative, to achieve universal access to basic social services of good quality on a sustainable basis, as a shared responsibility of developing and donor States. The Committee notes that international meetings held to review progress have concluded that many States are going to have difficulty meeting fundamental economic and social rights unless additional resources are allocated and efficiency in resource allocation is increased. The Committee takes note of and encourages efforts being made to reduce poverty in the most heavily indebted countries through the Poverty Reduction Strategy Paper (PRSP). As the central, country-led strategy for achieving the millennium development goals, PRSPs must include a strong focus on children’s rights. The Committee urges Governments, donors and civil society to ensure that children are a prominent priority in the development of PRSPs and sectorwide approaches to development (SWAps). Both PRSPs and SWAps should reflect children’s rights principles, with a holistic, child-centred approach recognizing children as holders of rights and the incorporation of development goals and objectives which are relevant to children.

63. The Committee encourages States to provide and to use, as appropriate, technical assistance in the process of implementing the Convention. The United Nations Children’s Fund (UNICEF), the Office of the United Nations High Commissioner for Human Rights (OHCHR) and other United Nations and United Nations-related agencies can provide technical assistance with many aspects of implementation. States parties are encouraged to identify their interest in technical assistance in their reports under the Convention.

64. In their promotion of international cooperation and technical assistance, all United Nations and United Nations-related agencies should be guided by the Convention and should mainstream children’s rights throughout their activities. They should seek to ensure within their influence that international cooperation is targeted at supporting States to fulfil their obligations under the Convention. Similarly the World Bank Group, the International Monetary Fund and World Trade Organization should ensure that their activities related to international cooperation and economic development give primary consideration to the best interests of children and promote full implementation of the Convention.

K. Independent human rights institutions

65. In its general comment No. 2 (2002) entitled “The role of independent national human rights institutions in the protection and promotion of the rights of the child”, the Committee notes that it “considers the establishment of such bodies to fall within the commitment made by States parties upon ratification to ensure the implementation of the Convention and advance the universal realization of children’s rights”. Independent human rights institutions are complementary to effective government structures for children; the essential element is independence: “The role of national human rights institutions is to monitor independently the State’s compliance and progress towards implementation and to do all it can to ensure full respect for children’s rights. While this may require the institution to develop projects to enhance the promotion and protection of children’s rights, it should not lead to the Government delegating its monitoring obligations to the national institution. It is essential that institutions remain entirely free to set their own agenda and determine their own activities.”133 General comment No. 2 provides detailed guidance on the establishment and operation of independent human rights institutions for children.

Article 42: Making the Convention known to adults and children

“States parties undertake to make the principles and provisions of the Convention widely known, by appropriate and active means, to adults and children alike.”

66. Individuals need to know what their rights are. Traditionally in most, if not all, societies children have not been regarded as rights holders. So article 42 acquires a particular importance. If the adults around children, their parents and other family members, teachers and carers do not understand the implications of the Convention, and above all its confirmation of the equal status of children as subjects of rights, it is most unlikely that the rights set out in the Convention will be realized for many children.

67. The Committee proposes that States should develop a comprehensive strategy for disseminating knowledge of the Convention throughout society. This should include information on those bodies - governmental and independent - involved in implementation and monitoring and on how to contact them. At the most basic level, the text of the Convention needs to be made widely available in all languages and the Committee commends the collection of official and unofficial translations of the Convention made by OHCHR. There needs to be a strategy for dissemination of the Convention among illiterate people. UNICEF and NGOs in many States have developed child-friendly versions of the Convention for children of various ages - a process the Committee welcomes and encourages; these should also inform children of sources of help and advice.

68. Children need to acquire knowledge of their rights and the Committee places special emphasis on incorporating learning about the Convention and human rights in general into the school curriculum at all stages. The Committee’s general comment No. 1 (2001) entitled “The aims of education” (art. 29, para. 1), should be read in conjunction with this. Article 29, paragraph 1, requires that the education of the child shall be directed to “... the development of respect for human rights and fundamental freedoms ...”. The general comment underlines: “Human rights education should provide information on the content of human rights treaties. But children should also learn about human rights by seeing human rights standards implemented in practice whether at home, in school or within the community. Human rights education should be a comprehensive, lifelong process and start with the reflection of human rights values in the daily life and experiences of children.”133

69. Similarly, learning about the Convention needs to be integrated into the initial and in-service training of all those working with and for children (see paragraph 53 above). The Committee reminds States parties of the recommendations it made following its meeting on general measures of implementation held to commemorate the tenth anniversary of adoption of the Convention, in which it recalled that “dissemination and awareness-raising about the rights of the child are most effective when conceived as a process of social change, of interaction and dialogue rather than lecturing. Raising awareness should involve all sectors of society, including children and young people. Children, including adolescents, have the right to participate in raising awareness about their rights to the maximum extent of their evolving capacities”.133

“The Committee recommends that all efforts to provide training on the rights of the child be practical, systematic and integrated into regular professional training in order to maximize its impact and sustainability. Human rights training should use participatory methods, and equip professionals with skills and attitudes that enable them to interact with children and young people in a manner that respects their rights, dignity and self-respect.”133

The media can play a crucial role in the dissemination of the Convention and knowledge and understanding of it and the Committee encourages their voluntary engagement in the process, which may be stimulated by Governments and by NGOs.133

Article 44 (6): Making reports under the Convention widely available

“... States parties shall make their reports widely available to the public in their own countries.”

70. If reporting under the Convention is to play the important part it should in the process of implementation at the national level, it needs to be known about by adults and children throughout the State party. The reporting process provides a unique form of international accountability for how States treat children and their rights. But unless reports are disseminated and constructively debated at the national level, the process is unlikely to have substantial impact on children’s lives.

71. The Convention explicitly requires States to make their reports widely available to the public; this should be done when they are submitted to the Committee. Reports should be made genuinely accessible, for example through translation into all languages, into appropriate forms for children and for people with disabilities and so on. The Internet may greatly aid dissemination, and Governments and parliaments are strongly urged to place such reports on their web sites.

72. The Committee urges States to make all the other documentation of the examination of their reports under the Convention widely available to promote constructive debate and inform the process of implementation at all levels. In particular, the Committee’s concluding observations should be disseminated to the public including children and should be the subject of detailed debate in parliament. Independent human rights institutions and NGOs can play a crucial role in helping to ensure widespread debate. The summary records of the examination of government representatives by the Committee aid understanding of the process and of the Committee’s requirements and should also be made available and discussed.

Notes

1. The Committee reminds States parties that, for the purposes of the Convention, a child is defined as “every human being below the age of 18 years unless, under the law applicable to the child, majority is attained earlier” (art. 1).

2. In 1999, the Committee on the Rights of the Child held a two-day workshop to commemorate the tenth anniversary of adoption of the Convention on the Rights of the Child by the United Nations General Assembly. The workshop focused on general measures of implementation following which the Committee adopted detailed conclusions and recommendations (see CRC/C/90, paragraph 291).

3. General guidelines regarding the form and content of initial reports to be submitted by States parties under article 44, paragraph 1 (a) of the Convention, CRC/C/5, 15 October 1991; general guidelines regarding the form and contents of periodic reports to be submitted under article 44, paragraph 1 (b) of the Convention on the Rights of the Child, CRC/C/58, 20 November 1996.

4. Human Rights Committee, general comment No. 3 (thirteenth session, 1981), article 2: Implementation at the national level; Committee on Economic, Social and Cultural Rights, general comment No. 3 (fifth session, 1990), The nature of States parties’ obligations (article 2, paragraph 1, of the Covenant); also general comment No. 9 (nineteenth session, 1998), The domestic application of the Covenant, elaborating further on certain elements in general comment No. 3. A compendium of the treaty bodies’ general comments and recommendations is published regularly by the Office of the High Commissioner for Human Rights (HRI/GEN/1/Rev.6).

5. General comment No. 3, HRI/GEN/1/Rev.6, para. 11, p. 16.

6. Human Rights Committee, general comment No. 18 (1989), HRI/GEN/1/Rev.6, pp. 147 et seq.

7. General guidelines regarding the form and contents of periodic reports to be submitted under article 44, paragraph 1 (b) of the Convention on the Rights of the Child, CRC/C/58, 20 November 1996, para. 11.

8. World Conference on Human Rights, Vienna, 14-25 June 1993, “Vienna Declaration and Programme of Action”, A/CONF.157/23.

9. World Summit for Children, “World Declaration on the Survival, Protection and Development of Children and Plan of Action for Implementing the World Declaration on the Survival, Protection and Development of Children in the 1990s”, CF/WSC/1990/WS-001, United Nations, New York, 30 September 1990.

10. World Conference on Human Rights, Vienna, 14-25 June 1993, “Vienna Declaration and Programme of Action”, A/CONF.157/23.

11. A World Fit for Children, outcome document of the United Nations General Assembly special session on children, 2002, para. 59.

12. Ibid., para. 61 (a).

13. Committee on the Rights of the Child, Report on its thirty-first session, September-October 2002, Day of General Discussion on “The private sector as service provider and its role in implementing child rights”, paras. 630-653.

14. General guidelines regarding the form and contents of periodic reports to be submitted under article 44, paragraph 1 (b), of the Convention on the Rights of the Child, CRC/C/58, 20 November 1996, para. 20.

15. Ibid., para. 3.

16. The following articles of the Convention relate to international cooperation explicitly: articles 7 (2); 11 (2); 17 (b); 21 (e); 22 (2); 23 (4); 24 (4); 27 (4); 28 (3); 34 and 35.

17. Report of the International Conference on Financing for Development, Monterrey, Mexico, 18-22 March 2002 (A/CONF.198/11).

18. HRI/GEN/1/Rev.6, para. 25, p. 295.

19. Ibid., para. 15, p. 286.

20. See CRC/C/90, para. 291 (k).

21. Ibid., para. 291 (l).

22. The Committee held a day of general discussion on the theme “The child and the media” in 1996, adopting detailed recommendations (see CRC/C/57, paragraphs 242 3t seq.).

13. ANNEX 2: OUTCOME DOCUMENT OF EXPERT GROUP MEETING ON CEDAW ARTICLE 2: NATIONAL AND INTERNATIONAL DIMENSIONS OF STATE OBLIGATION

The International Women’s Rights Action Watch Asia Pacific, in collaboration with the Australian Centre for Human Rights of the Faculty of Law, University of New South Wales, convened an expert group meeting from 14 to 16 February 2007 in Kuala Lumpur, on the theme CEDAW Article 2: National and International Dimensions of State Obligation. The participants in the meeting included women’s human rights activists and advocates, international law experts, academics, and past and present members of the Committee on the Elimination of Discrimination against Women.

The meeting was in the context of the decision of the CEDAW Committee to elaborate a general recommendation on article 2 of the Convention on the Elimination of All Forms of Discrimination against Women. The purpose of the meeting was to explore the possible form and content of such a general recommendation, and to put forward for the consideration of the CEDAW Committee a series of elements and issues that participants thought would be usefully addressed in the Committee’s deliberations. The participants had available a number of background materials for the meeting, as well as the benefit of presentations made by participants and discussion. The attached Possible Elements for a General Recommendation on Article 2 of the CEDAW Convention represents the range of issues which participants recommended that the CEDAW Committee take into in its deliberations on the proposed General recommendation.

POSSIBLE ELEMENTS FOR INCLUSION IN A GENERAL RECOMMENDATION ON ARTICLE 2 OF THE CEDAW CONVENTION

A. GENERAL

1. The General recommendation on Article 2:
(a) should underline the binding nature of the legal obligation accepted by States when they become parties to the Convention, and provide specific guidance to States parties as to the types of steps which they should take into order to give effect to their obligations under the Convention;
(b) should be formulated with the goal of making it a useful, focused, and practical juridical tool for government officials, activists, advocates, courts and tribunals, and other institutions; and
(c) should be firmly based in the practice of the CEDAW Committee (and other relevant practice under the Convention), and take into account the progressive developments in the practice of other human rights bodies (including the other UN human rights treaty bodies and regional human rights bodies), and seek to develop the practice of the Convention in a dynamic way to reflect the fact that the convention is a living instrument.

B. SCOPE OF APPLICATION OF THE CONVENTION

2. A General recommendation on the nature and extent of State obligation under the Convention:

(a) should consider not only article 2 of the Convention, but also articles 3 and 24 in defining the scope and content of State parties’ obligations, and the relevance of the Preamble to the Convention to the content of obligations under the Convention; and
(b) should refer to the differing formulations of obligation that appear in the various provisions of the Convention (for example, the obligations under article 15 that States “shall accord” legal equality and the obligations under various articles to take all “necessary” or “appropriate” measures).

3. The Convention should be seen not only as an international legal instrument but should also be understood as setting out a framework for development. The Convention is one of a family of human rights instruments; many States are parties to more than one of the UN human rights treaties and their obligations under this Convention need to be understood in the light of other conventional and customary international law obligations.

Territorial and personal scope of the Convention

4. Under international law the jurisdiction of States is primarily territorial, but the State may exercise its jurisdiction outside its national territory in certain cases, and in some cases the State will be obliged to fulfil its obligations under the Convention in relation to territory outside because of the nature of its control over that territory or the persons affected. For example, the obligations of States parties under the Convention apply where a State party is in effective control of a territory outside its borders. Similarly, the obligations of States parties under article 2 (c) and (e) of the Convention also extend to acts of national corporations operating extraterritorially. The obligations of States parties may also extend to regulating the acts of its nationals when they are outside the territory of the State party (for example, in situations where nationals are perpetrators of trafficking). A General recommendation should also include consideration of the obligations of a State party in relation to its nationals abroad who may have been subject to violations of their rights (for example, in relation to migrant workers or women who have been subjected to forced marriages and wish to return to their home country), and should take into account in particular the practice of the Committee and States parties in relation to migrant workers.

5. The obligations of the State party under the Convention apply both to its citizens and to non-citizens in its territory or under its jurisdiction. Aliens should in general receive the benefit of the rights guaranteed by the Convention without discrimination, although there are a number of rights in the sphere of political life that may be limited in the case of non-citizens, provided that there is no discrimination between male and female non-citizens in these areas.
Private actors

6. The coverage of the Convention is not limited to the prohibition of discrimination against women directly by the State, but also imposes obligations on the State in relation to the acts of private actors. In some cases (in particular where a public function has been privatised and its performance contracted to a private actor), these acts may be viewed as the acts of the State under international law. In other cases, the obligations of the State party under article 2(e) and (f) make it clear that the State party must take all appropriate measures to eliminate discrimination against women by private actors. Although this obligation has been elaborated by the Committee under the concept of the obligation of due diligence in the context of violence against women, it is not limited to that area. States parties are required to take appropriate preventive, investigative, punitive and remedial measures in relation to discriminatory acts or practices of private persons more broadly.

7. States parties are thus under an obligation to ensure that private actors do not engage in discrimination against women as defined in the Convention. The appropriate measures a State party is obliged to take include regulating the activities of private actors in regard to employment policies, working conditions and work standards, and other areas where private actors provide services or facilities.

8. A State party has an obligation to take steps to modify gender-based stereotypes and to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women discriminatory cultural practices which may exist in mainstream social relations or in specific communities. This obligation includes the requirement to take appropriate measures to initiate debate on cultural change generally and within relevant communities, specifically ensuring the participation of women and women’s groups in these discussions.

The Convention and other bodies of international law

9. The obligations of States parties under the Convention do not cease in periods of armed conflict, or in states of emergency (in which derogations from the enjoyment of other rights are permitted under article 4 of the ICCPR). The Convention and other human rights treaties are complementary to and operate alongside other bodies of international law, including international humanitarian law, international criminal law and refugee law.

Development assistance

10. States parties must ensure that they and their development partners take gender impact into account in the design and delivery of overseas development assistance policies and programmes. Similarly, a State party should refrain from accepting development assistance that would manifestly have a negative impact on the enjoyment by women of their human rights. All development assistance a State party receives should be utilised in a manner that is non-discriminatory against women.

Participation of States parties in international organisations

11. A State party is under an obligation:

(a) to take into account the rights guaranteed under the Convention when it negotiates with international financial institutions in relation to loans and other forms of financing for national projects.
(b) to ensure that when entering into international agreements relating to trade liberalisation or other subjects, these agreements do not have an adverse impact on protected rights protected under the Convention;

(c) to take steps in its capacity as a member of international organisations, including the various international financial institutions, to ensure that due account is taken of rights protected under the Convention in the activities of those institutions and to take all reasonable measures to assess, foresee and prevent any adverse consequences for the enjoyment of women of their human rights.

C. DEFINITIONS, SCOPE AND NATURE OF OBLIGATIONS

Definitions

13. The General recommendation on Article 2 should make it clear that the concept of equality and non-discrimination is a universal one. The guidance should state that:

(a) the Convention embodies the concept of substantive equality;
(b) substantive equality includes equality of opportunity, equality of access and equality of outcome/results; and
(c) guarantees of “equality before the law” (which require the equal and even-handed application of the law without regard to its substantive content), while necessary, are insufficient to fully meet the obligations imposed by Article 2.

14. The General recommendation should provide clear and specific guidance on the form that constitutional and legislative guarantees of equality and non-discrimination as specified in article 2 (a) should take. These guarantees should:

(a) contain a definition of discrimination which embodies the definition of discrimination in article 1 (which encompasses indirect as well as direct discrimination);
(b) extend both to the substantive content of laws and to their administration;
(c) extend to the actions of public authorities and institutions as stipulated in article 2(d);
(d) extend to the actions of any person, enterprise or organisation, including private and non-state actors, as stipulated in article 2(e); and
(e) provide for effective sanctions, including appropriate remedies as provided for in article 2(b).

15. The General recommendation should also recall the views of the Committee – in particular as elaborated in its General recommendation 25 – that temporary special measures will be required to achieve substantive equality and eliminate discrimination in many instances.

Intersectionality

16. The General recommendation should clarify that the Convention covers intersectional discrimination against women (where women experience discrimination on the basis of their sex combined with other grounds of discrimination, for example ethnicity, sexual orientation, HIV/AIDS etc).

17. The text of the Convention and the practice of the Committee show that the Convention covers intersectional discrimination. The Convention refers to intersections of different bases of discrimination in various places, for example:

(a) the Preamble, which states that “everyone is entitled to all the rights and freedoms set forth therein, without distinction of any kind, including distinction based on sex”, emphasises that “in situations of poverty women have the least access to food, health, education, training and opportunities for employment and other needs” and notes that the ”eradication of all forms of racism, racial discrimination, colonialism, neo-colonialism, aggression, foreign occupation and domination and interference in the internal affairs of States is essential to the full enjoyment of the rights of men and women”;
(b) article 1, which expressly includes marital status;
(c) article 2, which condemns discrimination in all its forms, refers to prohibiting all discrimination, and refers to any act of discrimination; and
(d) article 14, which requires States Parties to take into account the particular problems faced by rural women.

18. The Committee has previously recognised the need to consider intersections of discrimination in:

(a) General recommendation 15, which recommends that States Parties adopt measures to prevent specific discrimination against women in relation to HIV/AIDS;
(b) General recommendation 18, which states that women with disabilities suffer from a “double discrimination linked to their special living conditions”; and
(c) General recommendation 21, which states that the form and concept of the family can vary and recommends recognition of de facto relationships.

Rights covered by the Convention

19. The General recommendation should include a clear statement that the Convention guarantees women’s equal enjoyment not only of the rights explicitly dealt with in the fields covered in articles 6-16 of the Convention, but also extends to the equal enjoyment of all internationally recognised human rights and fundamental freedoms. This is clear from the Preamble, the definition of discrimination in article 1, the terms of articles 2, 3 and 24, and the practice of the Committee (for example, General recommendation 19).[133] This broad coverage has been articulated most clearly by the Committee in relation to violence against women, but also applies more generally. The rights covered would include those rights recognised in the Universal Declaration of Human Rights, the International Covenants on Human Rights, other UN and regional human rights treaties, and other human rights instruments.

D. NATURE OF THE OBLIGATIONS UNDER THE CONVENTION

(a) Nature of obligations – Article 2 chapeau:

20. The chapeau of article 2 expresses the general legal obligation of States parties to implement the Convention. Its substantive requirements provide the framework for the implementation of the specific legal obligations identified in paragraphs 2 (a)–(f).

(b) “States Parties condemn discrimination against women in all its forms”

21. The first substantive commitment undertaken by States parties in the chapeau is to “condemn” discrimination against women in all its forms. The language of condemnation is the strongest wording used by the international community in this context (this language is based on similar language in the Racial Discrimination Convention), expressing deep abhorrence of discrimination against women and acknowledging it is as intolerable as racial discrimination. It is an undertaking by each State Party to make it very clear – immediately, and continuously – to all levels and arms of government, to their domestic population and to the international community that they are totally opposed to discrimination against women in all its forms, and determined to bring about its elimination.

(c) “agree to pursue ... [a policy of eliminating discrimination against women]”

22. States parties also agree to “pursue ... a policy of eliminating discrimination against women”. The obligation to “pursue” such a policy is both immediate and continuing. The State party must immediately take concrete steps to formulate and implement a policy that is targeted as clearly as possible towards the goal of fully eliminating all forms of discrimination against women and achieving women’s substantive equality with men. The emphasis is on forward movement, from the initial adoption of a comprehensive range of measures to building on them continuously, in light of their effectiveness and new or emerging issues, towards the Convention’s goals.

(d) ”by all appropriate means”

23. States parties undertake to pursue the policy of eliminating discrimination against women “by all appropriate means”. This gives the State party a great deal of flexibility in devising a policy that will be appropriate to its particular legal, administrative and political framework, and which can respond to its particular history of obstacles and resistances to the elimination of discrimination against women. However, each State Party must be able to justify the appropriateness of the particular means it has chosen and ultimately it is for the Committee to determine whether all appropriate means have been adopted.

24. The types of means that might be considered appropriate are not limited to constitutional or legislative measures, although the Convention emphasises the importance of such means and gives them some priority. In addition, the Committee expects States parties to have adopted measures that ensure the practical realisation of the elimination of discrimination against women and women’s equality with men. These will include measures which ensure women are able to make complaints about violations of the Convention and have access to effective remedies, which enable women to be actively involved in the formulation and implementation of measures, which ensure governmental accountability domestically, which promote education and support for the goals of the Convention throughout the education system and in the community, which encourage the work of women’s rights NGOs, establish the necessary national human rights institutions and/or other machineries and that provide adequate administrative and financial support to make the measures adopted make a real difference in women’s lives in practice.

25. In order to satisfy the requirement of “appropriateness”, the means adopted by a State Party must also address all aspects of its legal obligations under the Convention to respect, protect, promote and fulfil women’s right to non-discrimination and to the enjoyment of equality with men. Thus “appropriate means” will include measures which ensure that the State party:

(a) abstains from performing, sponsoring or tolerating any practice, policy or measure that violates the Convention (respect);
(b) takes steps to prevent, prohibit address violations of the Convention by third parties, including in the home and in the community (protect);
(c) fosters wide knowledge about and support for its Convention obligations (promote); and
(d) adopts positive measures that achieve sex non-discrimination and gender equality in practice (fulfil)[134].

(e) “and without delay”

26. The words “without delay” make it clear that the State party’s obligation to pursue its policy, by all appropriate means, is immediate. This language is unqualified, and does not allow for any delay in the implementation of the legal obligations that State parties assume on ratification of the Convention. It follows that delay cannot be justified on any grounds, including by reference to political, social, religious, cultural, economic, resource or other considerations within the State. Where a State party is facing resource constraints or needs technical or other expertise to facilitate its implementation of its obligations, it may be incumbent on it to seek international cooperation in order to overcome these difficulties.

(f) “a policy of eliminating discrimination against women”

27. The requirement to adopt a policy is an essential and critical component of a State party’s general legal obligation. Such a policy must comprise a resolute, detailed and comprehensive action plan that provides a framework for designing, coordinating and integrating the more specific undertakings that follow the chapeau in paragraphs 2 (a)-(f). The policy must ensure that the State party’s obligations under the Convention are given effect. To this end, all elements of the policy must be scrupulously directed towards achieving the Convention’s goals of eliminating discrimination against women and ensuring that women enjoy equality with men in all spheres of life.

28. The policy should incorporate clear definitions of discrimination against women and gender equality that are consistent with the spirit and substance of the Convention, including the definition in article 1, as outlined above.

29. The policy should be comprehensive in that it should apply to all fields of life, including the political, economic, social, cultural and civil fields. It should apply to both public and private spheres of life, including the domestic sphere. It should also ensure that all arms of the State (executive, legislative and judicial) and all levels of government assume their respective responsibilities for implementation. It should incorporate the entire range of measures that are appropriate in the particular circumstances of the State Party.

30. The policy should identify women within the jurisdiction of the State party (including non-citizens) as the rights-bearers, with particular emphasis on those groups of women who are most marginalised. It should ensure that women, as individuals and groups, have access to information about their rights under the Convention and are able to effectively promote and claim those rights. The State party should also ensure that women are able to participate actively in the development and implementation of the policy. To this end, resources must be devoted to ensuring that women’s NGOs are well-informed, adequately consulted and generally able to play an active role in the initial and subsequent development of the policy. Women must also be empowered to present their views, in the form of shadow/alternative reports and oral statements, to the Committee when it considers a State party’s periodic report, and be actively involved in the domestic dissemination of the Committee’s concluding comments.

31. The policy should be action-oriented in that it should establish benchmarks and timelines, and ensure that all relevant actors are adequately resourced and otherwise enabled to play their part in achieving the agreed benchmarks and goals. To this end, the policy must be linked to budgetary processes in order to ensure that all aspects of the policy are adequately funded. The policy should provide for mechanisms, that collect relevant sex-disaggregated data, that enable progress and effectiveness of measures to be monitored, that facilitate continuing evaluation, and allow for revision, supplementation and the identification of any new measures that may be appropriate.

32. The policy should ensure that there are strong and focused bodies within the executive government (national women’s machineries) to coordinate and oversee the development of legislation, policies and programmes necessary to implement the Convention. These institutions should be empowered to provide advice and analysis directly to the highest levels of government, such as the Cabinet and Attorney General. The policy should also ensure that there are independent monitoring institutions such as national human rights commissions or independent women’s commissions established, or that existing national institutions have conferred on them a mandate with respect to the rights guaranteed in the Convention.

33. The policy must engage the private sector, including business enterprises, organisations, community groups and individuals, and enlist their partnership in adopting measures that will fulfil the goals of the Convention in the private sphere. The policy should also provide a focal point for government regulation of private actors, to ensure that they act consistently with its obligations under the Convention, in the marketplace and elsewhere in the private sphere.

34. The policy should be result-driven in that it should be targeted as clearly as possible towards the goal of eliminating all forms of discrimination against women and providing for women’s equal enjoyment of all human rights and fundamental freedoms.

E. LEGAL INCORPORATION OF THE CONVENTION

Legal protection

35. States parties should ensure that through constitutional amendments or by other legislative means the principle of equality of men and women and of non-discrimination is incorporated into domestic law with overriding and enforceable status. They should also enact legislation which prohibits discrimination contrary to the Convention.[135]

36. States parties should undertake a continuing review of all existing and planned legislation, laws, regulations, public policies and programmes with the view to removing, repealing, revoking, or abolishing all the discriminatory elements and of ensuring harmonisation with international human rights obligations. States parties should involve all branches of governments in this process: the executive, the judiciary (to draw attention to discriminatory laws) and the legislature (for example, a Parliamentary Committee could be established to continue the review process).[136]

37. States parties should ensure that the courts are bound to apply the principle of equality as embodied in the Convention and to interpret law, to the maximum extent possible, compatibly with Convention obligations. However, where it is not possible to do so, courts should draw the inconsistency between national law and the State party’s international obligation to the attention of the appropriate authorities since the supremacy of domestic law under the national legal system does not justify a failure to carry out an international obligation.[137]

38. States parties should ensure that women can invoke the principle of equality in the courts in support of complaints of discrimination contrary to the Convention by public officials or by private actors, and that women have recourse to affordable, accessible and timely remedies, with legal aid and assistance as necessary, determined in a fair hearing by a competent and independent court or tribunal with access to a mediation process.[138] Where discrimination constitutes a serious abuse of human rights (for example, in cases of violence), penal sanctions should be applied and there should be no impunity.[139]

39. States parties should ensure that legislation prohibiting discrimination and promoting equality legislation provides for appropriate remedies for women who are subjected to discrimination contrary to the Convention, including reparation, compensation, restitution, rehabilitation, and reinstatement.[140] The power to order temporary special measures or other systemic remedies should be included.[141]

40. States parties should support women’s legal resource centres in their work to educate women about equality rights and to assist them in pursuing remedies for discrimination.

Mass Violence

41. Many existing penal codes do not address the commission of mass crimes of a sexual and gender-based nature and the particular difficulties of evidence and procedure to which efforts to identify and bring to justice perpetrators are subject. In addition to adopting the principles of General recommendation 19, States parties should institute effective measures to prevent, punish, eradicate and provide reparation for such crimes. States are therefore obliged to:

(a) report to the Committee on the occurrence of mass crimes in all contexts;
(b) enact appropriate legislation to address offences of mass crimes and to provide appropriate redress mechanisms;
(c) enact a remedial system, including the provision of reparation, for individual and group victims of mass crimes and their family members left behind;
(d) develop appropriate procedural and evidentiary rules for the prosecution of and reparation for mass crimes; and
(e) prosecute state officials for inaction or complicity in mass crimes.

F. OTHER MEASURES OF IMPLEMENTATION

42. States parties should also adopt other appropriate measures of implementation such as:

(a) promoting equality of women through the formulation of and implementation of National Plans of Action and other relevant policies and programmes, and allocating to them adequate human and financial resources;
(b) establishing codes of conduct for public officials to ensure respect for the principles of equality and non-discrimination;
(c) ensuring reports of court decisions applying the equality principle are widely distributed;
(d) undertaking specific education programmes about the principles of the Convention and women’s human rights directed to all government agencies, to public officials, and in particular to the education and training of the legal profession and the judiciary;[142]
(e) enlisting all media in public education programmes about the equality of men and women and to ensure in particular that women are aware of their right to equality without discrimination and of the measures taken by the government to implement the Convention including reports of the Committee;[143] and
(f) establishing valid indicators of the status and progress of women for inclusion in data disaggregated by sex and relevant to the specific provisions of the Convention (including the other categories necessary to identify forms of intersectional discrimination).[144]

G. ACCOUNTABILITY ISSUES

The State

43. Effective implementation of the Convention requires a State party to be accountable not only at the international level, but also at the national level to its citizens and other members of its community. In order for this accountability function to work effectively, appropriate mechanisms and institutions must be put in place.

44. The obligations under the Convention fall on all three branches of government; accordingly, the responsibility to give effect to a State party’s obligations under the Convention lies equally with the executive, legislature and the judiciary.

45. The decentralisation of power, through devolution and delegation of government, does not in any way reduce the direct responsibility of the State party to fulfil its obligations to all women within its jurisdiction, regardless of the State structure. In all circumstances the State that ratified or acceded to the Convention remains responsible for ensuring the full implementation of the Convention throughout the territories under its jurisdiction. In any process of devolution, States parties must ensure that the devolved authorities have the necessary financial, human and other resources to effectively discharge responsibilities for the implementation of the Convention. The governments of States parties must retain powers to require full compliance with the Convention by devolved administrations or local authorities and must establish permanent monitoring mechanisms to ensure that the Convention is respected and applied for all women and men within its jurisdiction without discrimination. Further, there must be safeguards to ensure that decentralisation or devolution does not lead to discrimination in the enjoyment of rights by all people in different regions.

Institutions

46. If they have not already established such a body, States parties should set up national institution (and equivalent provincial or state-level institutions in the case of a federal system), which will be an independent specialised statutory body with powers to oversee compliance with and implementation of the Convention. Where such a body already exists, the Convention and the rights it guarantees should fall within the mandate of the institution. When designating or establishing such a mechanism, State Parties should comply with the Paris Principles relating to the status and functioning of national institutions for protection and promotion of human rights.[145] Independent human rights institutions are complementary to national machineries for women.

47. The establishment of such institutions flows from the commitments undertaken by the State party upon ratification to ensure the implementation of the Convention and advance the practical realisation of women’s rights. The role of such institutions is to independently monitor the state’s compliance and progress towards implementation and to do all it can to respect, protect and fulfil women’s rights.

48. These institutions should be empowered and have adequate resources to oversee the implementation of the Convention, investigate complaints of discrimination, provide mediation or pursue remedies behalf of women, to promote equality, undertake education programmes and to coordinate with other agencies responsible for women’s affairs.[146]

49. These institutions should be composed of members who have demonstrated knowledge and expertise in women’s human rights. These members shall be appointed in a transparent manner. Where these functions with respect to the Convention are conferred on national institutions with a broader mandate, it is important that a significant proportion of members should be women and have expertise in women’s human rights and the fields covered by the Convention. Knowledge of the workings of this institution and how to engage with it must be made widely known using all available means.

The community

50. The obligation to implement the Convention lies primarily with States parties, but States parties need to engage all sectors of society, including women themselves, in fulfilling this obligation. The State needs to work closely with NGOs in the widest sense, while respecting their autonomy; these include, for example, human rights NGOs, women’s organisations, academic institutions and professional associations. NGOs played a crucial part in the drafting of the Convention and their involvement in the process of implementation is vital. The development of NGO coalitions and alliances committed to promoting, protecting and monitoring women’s human rights is important to the implementation of the Convention. Government should provide them with non-directive support and should develop positive formal as well as informal relationships with them. The engagement of NGOs in the reporting process under the Convention is also important to the process of implementation as well as to the process of reporting. The media can also be valuable partners in this process.

H. RESERVATIONS

51. Article 2 is the “very essence of obligations under the Convention” and reservation to Article 2 will “impede full implementation of the Convention”.[147] Therefore, as the Committee has previously stated, a reservation to Article 2 is in principle incompatible with the object and purpose of the Convention – a view with which a number of States parties have expressed their clear agreement by stating that in their view certain reservations to article 2 are incompatible with the objection and purpose of the Convention. States parties that have entered reservations to article 2 should be pressed to explain their detailed effect and to keep the reservations under review with the goal of withdrawing them as soon as possible.

52. The fact that a State party has entered a reservation to the Convention does not obviate the need for that State party to comply with its other obligations under international law, including its obligations under other treaties and under customary international law relating to the elimination of discrimination against women. Where there is a discrepancy between reservations under the Convention and similar obligations under other conventions, the State party should review its reservations under to the Convention with a view to removing them.

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[1] This paper is a revised version of a paper originally prepared as a background paper for an Expert Group Meeting held from 14 to 16 February 2007 in Kuala Lumpur and organised by the International Women’s Rights Action Watch Asia Pacific, in collaboration with the Australian Centre for Human Rights of the Faculty of Law, University of New South Wales, on the theme CEDAW Article 2: National and International Dimensions of State Obligation. The participants in the meeting included women’s human rights activists and advocates, international law experts, academics, and past and present members of the Committee on the Elimination of Discrimination against Women.

The discussions at the Expert Group Meeting took into account this background paper, as well as a number of other written and oral presentations and the meeting. The Meeting adopted an Outcome Document entitled Possible Elements for Inclusion in a General Recommendation on Article 2 of the CEDAW Convention, which is attached as Annex 2 to this paper. The background paper has been revised only in minor respects, and the revisions do not attempt to incorporate the discussions of its content at the meeting.

[2] Professor of International Law and Chair of the Committee of Management of the Australian Human Rights Centre, Faculty of Law, University of New South Wales, Sydney, Australia; Member of the Advisory Committee of the International Women’s Rights Action Watch Asia Pacific

[3] , Visiting Research Associate, Australian Human Rights Centre, Faculty of Law, University of New South Wales; formerly program officer with International Women’s Rights Action Watch Asia Pacific

[4] LLB student Faculty of Law, and Associate of the Australian Human Rights Centre, University of New South Wales

[5] The Committee on Economic, Social and Cultural Rights, the Human Rights Committee and the Committee on the Rights of the Child have elaborated general comments dealing with the issue of State obligation. The full text of these documents is contained in Annex 1.

[6] For example, we do not discuss in any detail the important topic of reservations in the context of this paper, although it is clearly an important theoretical and practical issue in relation to State obligation under the Convention.

[7] For the text of the articles and commentaries see Report of the International Law Commission on the Work of its Fifty-Third Session, UN GAOR 56th Sess, Supp No 10 at 43, UN Doc A/56/10 (2001), available at <http://www.un.org/law/ilc> [hereafter Articles on State Responsibility].

[8] UN Doc HRI/GEN/1/Rev.8, at 15 (2006)

[9] UN Doc HRI/GEN/1/Rev.8, at 55 (2006)

[10] UN Doc HRI/GEN/1/Rev.8, at 59 (2006)

[11]UN Doc HRI/GEN/1/Rev.8, at 233 (2006)

[12] UN Doc HRI/GEN/1/Rev.8, at 185 (2006)

[13] UN Doc HRI/GEN/1/Rev.8, at 218 (2006)

[14] UN CERD, General recommendation No I (State Parties’ Obligations) and General recommendation No II (State Parties Obligations), both at UN Doc HRI/GEN/1/Rev.8, at 239 (2006)

[15] , UN Doc HRI/GEN/1/Rev.8, at 277 (2006)

[16] UN Doc HRI/GEN/1/Rev.8, at 387

[17] UN Doc HRI/GEN/1/Rev.8, at 356 (2006)

[18] See HRC, General comment 31 (Nature of the General Legal Obligation imposed on State Parties to the Covenant), para 2, UN Doc HRI/GEN/1/Rev.8, at 233 (2006), relating to the similar situation under the ICCPR.

[19] Articles on State Responsibility, arts 12-15.

[20] UN HRC, General comment 31 (Nature of the General Legal Obligation imposed on State Parties to the Covenant), para 4, UN Doc HRI/GEN/1/Rev.8, at 233 (2006).

[21] Under the individual communications procedure of the Optional Protocol to the Convention, the Committee is competent to receive communications in relation to persons “subject to the jurisdiction” of a State party which has accepted the procedure. It is unlikely that this language – which reflects that of the (First) Optional Protocol to the ICCPR – would be more limited than the coverage of the Convention, but if it is, that limitation would relate only to the competence of the Committee to receive communications rather than the scope of the substantive obligations of the State party.

[22] Some treaties, such as the ICCPR in article 50, make explicit provision for the application of the treaty to all parts of a federal State, but this states the default rule in any event.

[23] UN HRC, General comment 31 (Nature of the General Legal Obligation imposed on State Parties to the Covenant), para 10, UN Doc HRI/GEN/1/Rev.8, at 233 (2006).

[24] See UN HRC, Concluding observations on the second periodic report of Israel, 78th Sess, para 11, UN Doc CCPR/CO/78/ISR (2003); International Court of Justice, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion), 9 July 2004, para 112.

[25] Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, (Advisory Opinion), 9 July 2004, para 112.

[26] See CEDAW, Summary Record of 685th Meeting, UN CEDAW, 33rd Sess, 685th mtg, UN Doc CEDAW/C/SR.685 (2005) (detailing Israeli Ministry of Foreign Affairs and Ministry of Justice discussions with the CEDAW Committee on the issue of applicability of the CEDAW Convention to the West Bank and the Gaza Strip).

[27] UN CEDAW, Concluding comments on the third periodic report of Israel, UN GAOR, 33rd Sess, Supp No 38, UN Doc A/60/38 (2005).

[28] The issue of the extent of the responsibility of a State party for the actions of an interim administration in occupied territory with limited international personality where various responsibilities have been delegated to that entity is a complex one, but CEDAW’s general position on the extraterritorial application of the Convention is clear.

[29] Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, para 19 in (1998) 20(3) Human Rights Quarterly 691, at 698. See also Andrew Clapham, Human Rights Obligations of Non-State Actors (Oxford University Press, 2006), at 109, citing Waite and Kennedy v Germany, European Court of Human Rights, Judgment of the Grand Chamber of 18 February 1999:

“67. The Court is of the opinion that where States establish international organisations in order to pursue or strengthen their cooperation in certain fields of activities, and where they attribute to these organisations certain competences and accord them immunities, there may be implications as to the protection of fundamental rights. It would be incompatible with the purpose and object of the Convention, however, if the Contracting States were thereby absolved from their responsibility under the Convention in relation to the field of activity covered by such attribution. It should be recalled that the Convention is intended to guarantee not theoretical or illusory rights, but rights that are practical and effective.”

[30] For example, the Committee has commended Canada’s policy “at the international level, in setting women’s human rights standards, providing financial and other assistance to women’s rights projects in developing countries as well as mainstreaming gender in its development assistance programmes and projects” UN CEDAW, Concluding comments on 5th periodic report of Canada, UN GAOR, 58th Sess, Supp No 38, para 340, UN Doc A/58/38 (2003). See also the Committee’s Concluding comments on the fourth and fifth periodic reports of Japan, UN GAOR, 58th Sess, Supp No 38, para 355, UN Doc A/58/38 (2003), and its Concluding comments on combined fourth and fifth periodic reports of Ireland, UN GAOR, 60th Sess, Supp No 38, para 377, UN Doc A/60/38 (2005).

[31] See, for example UN CESCR, General comment No 18 (The right to work) (2005), para 30, UN Doc HRI/GEN/1/Rev.8, at 148 (2006); UN CESCR, General comment No 12 (The right to adequate food)(1999), para 36, UN Doc HRI/GEN/1/Rev.8, at 63 (2006); UN CERD, General recommendation XXIX (Article 1, paragraph 1 of the Convention (descent))(1999), para 7(ii), UN Doc HRI/GEN/1/Rev.8, at 267 (2006). See also Principle 19 of the Montreal Principles on Women’s Economic, Social and Cultural Rights in (2004) 26(3) Human Rights Quarterly 772.

[32] See UN CESCR, General comment No 15 (The right to water)(2002), para 35, UN Doc HRI/GEN/1/Rev.8, at 105 (2006); UN CESCR, General comment No 14 (The right to the highest attainable standard of health)(2000), para 39, UN Doc HRI/GEN/1/Rev.8, at 86 (2006); UN CESCR, General comment No 13 (The right to education)(1999), para 56, UN Doc HRI/GEN/1/Rev.8, at 71 (2006); UN CESCR, General comment No 12 (The right to adequate food) (1999), paras 19 and 36, UN Doc HRI/GEN/1/Rev.8, at 63 (2006). See also Montreal Principles, supra note 31, Principle 19.

[33] See, for example, UN CESCR, General comment No 14 (the right to the highest attainable standard of health)(2000), para 39, UN Doc HRI/GEN/1/Rev.8, at 86 (2006). See also Montreal Principles, supra note 31, Principle 19.

[34] See UN CESCR, General comment No 15 (the right to water) (2002), para 31, UN Doc HRI/GEN/1/Rev.8, at 105 (2006).

[35] This was a classification proposed by Roberto Ago as Special Rapporteur of the International Law Commission on State responsibility in the draft articles he prepared for the Commission in the early 1970s. It was not adopted in the 2001 articles of the Commission. See generally Pierre-Marie Dupuy, "Reviewing the Difficulties of Codification: On Ago's Classification of Obligations of Means and Obligations of Result in Relation to State Responsibility", (1999) 10 European Journal of International Law 371-385.

[36] See in particular Asbjørn Eide, Right to Adequate Food as a Human Right, Human Rights Study Series No 1, United Nations publication (Sales No. E.89.XIV.2) (United Nations, New York, 1989; Eide, The right to adequate food and to be free from hunger -- Updated study on the right to food, submitted by Mr. Asbjørn Eide in accordance with Sub-Commission decision 1998/106, UN Doc E/CN.4/Sub.2/1999/12.

[37] Some formulations of the framework refer to four levels, subdividing the obligation to fulfil into obligations to fulfil and to promote: for a recent use of this approach see, for example, Montreal Principles, supra note 31, Principle 15.

[38] Human Rights Internet, “State Obligations to Implement International Human Rights” in For the Record: A Focus on Canada – Bringing Economic, Social and Cultural Rights Home – Guide, vol 1, Part 6, available online at http://www.hri.ca/fortherecordcanada/vol1/guide-part_6.htm (visited 16 January 2007).

[39] For example, the UN CESCR in its recent General comment No 18 (the right to work) put it in these terms:

“22. Like all human rights, the right to work imposes three types or levels of obligations on States parties: the obligations to respect, protect and fulfil. The obligation to respect the right to work requires States parties to refrain from interfering directly or indirectly with the enjoyment of that right. The obligation to protect requires States parties to take measures that prevent third parties from interfering with the enjoyment of the right to work. The obligation to fulfil includes the obligations to provide, facilitate and promote that right. It implies that States parties should adopt appropriate legislative, administrative, budgetary, judicial and other measures to ensure its full realization.”

[40] See UN CESCR, General comment No 16 (the equal right of men and women to the enjoyment of all economic, social and cultural rights)(2005), para 18, UN Doc HRI/GEN/1/Rev.8, at 122 (2006).

[41] See Maastricht Guidelines, Guideline No 6, supra note 29, at 713.

[42] See Maastricht Guidelines, Guidelines No 14 and No 15, supra note 29, at 721.

[43] See generally id. See also UN CESCR, General comment No 16 (The equal right of men and women to the enjoyment of all economic, social and cultural rights)(2005), paras 19-20, UN Doc HRI/GEN/1/Rev.8, at 122 (2006).

[44] Maastricht Guidelines, Guideline No 6, supra note 29, at 713.

[45] Fons Coomans, ‘In Search of the Core Content of the Right to Education’, in A Chapman and S. Russel (eds), Core Obligations: Building a Framework for Economic, Social and Cultural Rights, (Intersentia, 2002) at 242.

[46] For example: UN HRC, General comment No 18 (Non-discrimination)(1989), UN Doc HRI/GEN/1/Rev.8, at 185 (2006) and UN HRC, General Comment No 28 (Equality of rights between men and women)(2000), UN Doc HRI/GEN/1/Rev.8, at 218 (2006); UN CRC, General comment No 15 (General measures of implementation of the Convention on the Rights of the Child)(2003), UN Doc HRI/GEN/1/Rev.8, at 387 (2006) and UN CESCR, General comment No 16 (Equal right of men and women to the enjoyment of all economic, social and cultural rights)(2005), UN Doc HRI/GEN/1/Rev.8, at 122 (2006). For a more comprehensive analysis of steps and measures that must be adopted to fulfil obligations, it is helpful to study general comments that outline obligations in light of individual rights such as freedom of thought, the right to work, the right to water, etc.

[47] Magdalena Sepulveda, The Nature of the Obligations under the International Covenant on Economic, Social and Cultural Rights (Intersentia, 2003) at 239-246.

[48] Id at 239.

[49] Id at 241-243. See also UN CESCR, General comment No 12 (The right to adequate food (art. 11)) (1999), para 15 and 39, UN Doc HRI/GEN/1/Rev.8, at 63 (2006).

[50] In regard to third States, countries providing aid to accelerate gender equality and also assisting women in extreme poverty should provide aid in ways that ultimately facilitate self-reliance.

[51] See UN CESCR, General comment No 2 (International technical assistance measures (art 22 of the Covenant) (1990), para 6, UN Doc HRI/GEN/1/Rev.8, at 12 (2006).

[52] In particular, the definition of discrimination against women in article 1 (which applies to all fields, including private life), paragraph 2(e) (which refers specifically to the elimination of discrimination by non-State organisations), and article 5 (which refers to the need to change attitudes and conduct which reflects discriminatory attitudes about women). The obligations of the State party to the acts of private individuals is underlined in the Committee’s General recommendations 19 (Violence against women)(1992), para 9, UN Doc HRI/GEN/1/Rev.8, at 302 (2006); General recommendation 25 (Temporary special measures)(2005), para 7, UN Doc HRI/GEN/1/Rev.8, at 337 (2006).

[53] See for example CEDAW’s statement in General recommendation 25 (Temporary special measures) para 29:

“29. States parties should provide adequate explanations with regard to any failure to adopt temporary special measures. Such failures may not be justified simply by averring powerlessness, or by explaining inaction through predominant market or political forces, such as those inherent in the private sector, private organizations, or political parties. States parties are reminded that article 2 of the Convention, which needs to be read in conjunction with all other articles, imposes accountability on the State party for action by these parties.”

[54] See the discussion in Clapham, supra note 29, at 241-244.

[55] Article 5 of the Articles provides:

“Conduct of persons or entities exercising elements of governmental authority

The conduct of a person or entity which is not an organ of the State under article 4 but which is empowered by the law of that State to exercise elements of the governmental authority shall be considered an act of the State under international law, provided the person or entity is acting in that capacity in the particular instance.”

[56] Article 8 of the Articles provides:

“Conduct directed or controlled by a State

The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct.”

[57] Article 9 of the Articles provides:

“Conduct carried out in the absence or default of the official authorities

The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact exercising elements of the governmental authority in the absence or default of the official authorities and in circumstances such as to call for the exercise of those elements of authority.”

[58] Article 11 of the Articles provides:

“Conduct acknowledged and adopted by a State as its own

Conduct which is not attributable to a State under the preceding articles shall nevertheless be considered an act of that State under international law if and to the extent that the State acknowledges and adopts the conduct in question as its own.”

[59] See Andrew Clapham, Human Rights Obligations of Non-State Actors, supra note 29, at 317-319.

[60] For an overview of the types of obligations contained in the CEDAW Convention in the context of justiciability, see Andrew Byrnes and Jane Connors, ’Enforcing the Human Rights of Women: A Complaints Procedure for the Convention on the Elimination of All Forms of Discrimination Against Women?’, (1996) 21 Brooklyn Journal of International Law 679, at 707-734. This section draws on material from that article.

[61] By contrast the CERD Convention, in addition to the general obligation in article 2(a) to eliminate “racial discrimination in all its forms”, also contains in article 5 a detailed list of specific rights in the enjoyment of which equality is to be guaranteed.

[62] UN CEDAW, General recommendation 19 (Violence against women) refers to the following rights, only some of which ((e), (f), (g) and (h)) are referred to explicitly in the Convention:

(a) The right to life;

(b) The right not to be subject to torture or to cruel, inhuman or degrading treatment or punishment;

(c) The right to equal protection according to humanitarian norms in time of international or internal armed conflict;

(d) The right to liberty and security of person;

(e) The right to equal protection under the law;

(f) The right to equality in the family;

(g) The right to the highest standard attainable of physical and mental health;

(h) The right to just and favourable conditions of work.

[63] See, for example, UN CEDAW, General recommendation 18 (Disabled women) (1991), UN Doc HRI/GEN/1/Rev.8, at 301 (2006); UN CEDAW, General recommendation 25 (Temporary special measures)(2005), para 12, UN Doc HRI/GEN/1/Rev.8, at 337 (2006).

[64] See, for example, UN CEDAW, Concluding comments on the initial report of the Republic of Moldova, UN GAOR, 55th Sess, Supp No 38, para 95, UN Doc A/55/38 (2000). The Committee on the Rights of the Child has taken a similar position on the need to adopt a national strategy on children rooted in the Convention: UN CRC, General comment No 5 (General measures of implementation of the Convention on the Rights of the Child) (2003), paras 28-36, UN Doc HRI/GEN/1/Rev.8, at 387 (2006).

[65] See UN CEDAW, Concluding comments on the second, third and fourth periodic report of Germany, UN GAOR, 55th Sess, Supp No 38, para 306, UN Doc, A/55/38 (2000).

[66] See UN CEDAW, Concluding comments on the fifth report of Bangladesh, UN GAOR, 59th Sess, Part I, para 262, UN Doc A/59/38 (2004).

[67] See also the comment of the CRC on the need to make children “visible in budgets”: UN CRC, General comment No 5 (General measures of implementation of the Convention on the Rights of the Child) paras 51-52, UN Doc HRI/GEN/1/Rev.8, at 387 (2006).

[68] UN CEDAW, Revised Reporting Guidelines Annex, UN GAOR, 57th Sess, Supp No 38, Part II, Guideline D.2.3, UN Doc A/57/38 (2002).

[69] UN CEDAW, Optional Protocol Article 8 Examinations Concerning Gender Discrimination: Mexico, UN GAOR, 59th Sess, Part II, para 270, UN Doc A/59/38 (2004) [hereinafter Mexico inquiry].

[70] Mexico inquiry, supra note 69, para 270.

[71] UN CRC, General comment No 5 (General measures of implementation of the Convention on the Rights of the Child) (2003), para 27, UN Doc HRI/GEN/1/Rev.8, at 387 (2006).

[72] UN CEDAW, General recommendation No 6 (Effective national machinery and publicity) (1988), para 1, UN Doc HRI/GEN/1/Rev.8, at 291 (2006).

[73] This obligation might also be derived from article 3 or 24.

[74] See UN CEDAW, Concluding comments on the initial report of Myanmar, UN GAOR, 59th Sess, Supp No 38, para 104, UN Doc A/55/38 (2000).

[75] UN CEDAW, Concluding comments on the fourth and fifth periodic report of Nicaragua, UN GAOR, 56th Sess, Supp No 38, para 311, UN Doc A/56/38 (2002).

[76] UN CRC, General guidelines regarding the form and content of periodic reports to be submitted by States parties under article 44, paragraph 1 of the Convention (1991)[hereinafter CRC Reporting Guidelines], paras 12 and 17, UN Doc HRI/GEN/2/Rev.4, at 79 (2007).

[77] See Mexico inquiry, supra note 69, para 293.

[78] UN CEDAW, Concluding comments on the third periodic report of Australia, UN GAOR, 52nd Sess, Supp No 38, Part II, para 391, UN Doc A/52/38/Rev.1 (1997).

[79] The terminology of Article 33 of the recently adopted Convention on the Rights of Persons with Disabilities which articulates state obligations under that Convention with national implementation and monitoring may be useful for the CEDAW Committee to consider in this regard.

[80] See UN CEDAW, List of Issues for Bosnia-Herzegovina, 35th Sess, UN Doc CEDAW/C/BIH/Q/3, para 3 (2006).

[81] Id at para 6.

[82]CRC Reporting Guidelines, supra note 76, para 20.

[83] UN HRC, Consolidated guidelines for State reports under the International Covenant on Civil and Political Rights, para D.2.4, UN Doc HRI/GEN/2/Rev.4, at 47 (2007)); CRC Reporting Guidelines, supra note 76, para 18.

[84] UN CEDAW, General recommendation No 25 (Temporary special measures), para 3, UN Doc HRI/GEN/1/Rev.8, at 337 (2006).

[85] See UN CEDAW, Concluding comments on the combined second and third periodic report of Uruguay, UN GAOR, 57th Sess, Supp No 38, Part I, para 191, UN Doc A/57/38 (2002).

[86] See, for example, UN CRC, General comment No 5 (General measures of implementation of the Convention on the Rights of the Child), paras 37-39, UN Doc HRI/GEN/1/Rev.8, at 387 (2006).

[87] UN CRC, General comment No 2 (The role of national human rights institutions in the promotion and protection of the rights of the child), para 1, UN Doc HRI/GEN/1/Rev.8, at 356 (2006).

[88] Principles relating to the Status of National Institutions, adopted by UN General Assembly resolution 48/134 of 20 December 1993.

[89] UN CRC, General comment No 5 (General measures of implementation of the Convention on the Rights of the Child), para 65, UN Doc HRI/GEN/1/Rev.8, at 387 (2006).

[90] GA Res 61/106, Annex (13 December 2006), opened for signature on 30 March 2007. An optional protocol to the Convention, containing an individual complaints and an inquiry procedure was adopted at the same time.

[91] UN CEDAW, Concluding comments on the sixth periodic report of Mexico, 36th Sess, UN Doc CEDAW/C/MEX/CO/6, para 11 (2006).

[92] UN CRC, General comment No 2 (the role of national human rights institutions in the promotion and protection of the rights of the child), para 2, UN Doc HRI/GEN/1/Rev.8, at 356 (2006).

[93] UN CEDAW, General Recommendation No 6 (Effective national machinery and publicity), UN Doc HRI/GEN/1/Rev.8, at 291 (2006).

[94] See, for example, UN CEDAW, Concluding comments on the second and third periodic reports and fourth periodic report of Germany, UN GAOR, 55th Sess, Supp No 38, para 312, UN Doc A/55/38 (2000); UN CEDAW, Concluding comments on the initial report of Kazakhstan, UN GAOR, 56th Sess, Supp No 38, Part I, paras 87-88, UN Doc A/56/38 (2001); UN CEDAW, Concluding comments on the combined initial, second and third periodic reports of the Republic of Guinea, UN GAOR, 56th Sess, Supp No 38, Part I, paras 118-199, UN Doc A/56/38, Pt I (2001); UN CEDAW, Concluding comments on the combined initial, second and third periodic reports of Estonia, UN GAOR, 57th Sess, Supp No 38, Part I, paras 87-88, UN Doc A/57/38, Pt I (2002); UN CEDAW, Concluding comments on the combined initial, second, third, fourth and fifth periodic reports of the Congo, UN GAOR, 58th Sess, Supp No 38, Part I, paras 158-159, UN Doc A/58/38, Pt I (2003).

[95] See, for example, UN CEDAW, Concluding comments on the combined initial, second and third periodic reports of Estonia, UN Doc A/57/38, Pt I, para 81 (2001).

[96] See UN CEDAW, Concluding comments on the initial report of Republic of Moldova, UN Doc A/55/38, para 91 (2000).

[97] UN CEDAW, Concluding comments on the initial, second and third periodic reports of Samoa, UN GAOR, 60th Sess, Supp No 38, Part I, para 47, UN Doc A/60/38 (2005).

[98] See UN CEDAW, Concluding comments on the initial report of India, UN GAOR, 55th Sess, Supp No 38, Part I, para 45, UN Doc A/55/38 (2000).

[99] See UN CEDAW, Concluding comments on the first and second periodic reports of Jordan, UN GAOR, 55th Sess, Supp No 38, Part I, para.168, UN Doc A/55/38 (2000).

[100] See UN CEDAW, Concluding comments on the second and third periodic report of Croatia, UN GAOR, 60th Sess, Supp No 38, Part II, para 189, UN Doc A/60/38 (2005).

[101] See UN CEDAW, Concluding comments on the initial, second and third periodic reports of Samoa, UN Doc A/60/38, para 63 (2005).

[102] Inter-American Court of Human Rights, Godínez Cruz case, Judgment of 20 January 1988, para 175.

[103] UN CEDAW, General recommendation No 19 (Violence against women), para 9, UN Doc HRI/GEN/1/Rev.8, at 302 (2006).

[104] See UN CEDAW, Concluding comments on the second periodic report of Algeria, UN GAOR, 60th Sess, Supp No 38, Part I, para158, UN Doc A/60/38 (2005).

[105] UN CEDAW, List of Issues, Azerbaijan, 37th Sess, UN Doc CEDAW/C/AZE/Q/3, para 93 (2006).

[106] UN CRC, General comment No 5 (General measures of implementation of the Convention on the Rights of the Child), para 18, UN Doc HRI/GEN/1/Rev.8, at 387 (2006).

[107] See UN CEDAW, Concluding comments on the initial report of India, UN Doc A/55/38, para 60 (2000).

[108] See UN CEDAW, Concluding comments on the second and third periodic report of Burkina Faso, UN GAOR, 55th Sess, Supp No 38, Part I, para 266, UN Doc A/55/38 (2000).

[109] See UN CEDAW, Concluding comments on the third periodic report of Uganda, UN GAOR, 57th Sess, Supp No 38, Part II, paras 153-154, UN Doc A/57/38 (2002).

[110] See UN CEDAW, Concluding comments on the combined second and third and fourth periodic reports of Germany, UN Doc A/55/38, para 318 (2000).

[111] See UN CEDAW, Concluding comments on the combined second, third and fourth periodic reports of Jamaica, UN GAOR, 56th Sess, Supp No 38, Part I, para 226, UN Doc A/56/38 (2001).

[112] In practice, the Committee allows States Parties to combine two overdue reports. See Rules of Procedure of the Committee on the Elimination of Discrimination Against Women, UN GAOR, 56th Sess, Annex 1, No 49.3, UN Doc A/56/38 (2001).

[113] See UN CEDAW, Concluding comments on the initial, second, third, fourth and fifth periodic reports of Laos, UN GAOR, 60th Sess, Supp No 38, Part II, para 111, UN Doc, A/60/38 (2005).

[114] See Harmonized Guidelines on reporting under the international human rights treaties, including guidelines on a core document and treaty-specific document, UN Doc, HRI/GEN/2/Rev.4, at 13, para 45(d) (2007).

[115] UN CAT, Guidelines on the form and content of initial reports under article 19 to be submitted by States parties[hereinafter CAT Reporting Guidelines], 34th Sess (2005), para 4, UN Doc HRI/GEN/2/Rev.4, at 68 (2007).

[116] See UN CEDAW, General Recommendation No 6 (Effective national machinery and publicity), para 2, UN Doc HRI/GEN/1/Rev.8, at 291 (2006).

[117] See UN CEDAW, Concluding comments on the third, fourth and fifth periodic report of Cyprus UN GAOR, 61st Sess, Supp No 38, Part II, para 248, UN Doc A/61/38 (2006).

[118] See UN CEDAW, Concluding comments on the combined third and fourth periodic report of Zambia, UN GAOR, 57th Sess, Supp No 38, Part II, para 261, UN Doc A/57/38 (2002).

[119] UN CEDAW, Revised Reporting Guidelines [hereinafter CEDAW Revised Reporting Guidelines], H.4.1 (2002), UN Doc HRI/GEN/2/Rev.4, at 62 (2007) (emphasis added).

[120] UN HRC, Consolidated guidelines for State reports under the International Covenant on Civil and Political Rights, 70th Sess, para G.4, HRI/GEN/2/Rev.4, at 47 (2007); CRC Reporting Guidelines, supra note 76, para 6.

[121] CAT Reporting Guidelines, supra note 115, at 78.

[122] CRC Reporting Guidelines, supra note 76, para 6.

[123] CRC Reporting Guidelines, supra note 76, para 23.

[124] UN CEDAW, AT v Hungary, 60th Sess, Part I, Annex III, at para 6.9, UN Doc A/60/38 (2005).

[125] See Harmonized Guidelines on reporting under the international human rights treaties, including guidelines on a core document and treaty-specific document, UN Doc, HRI/GEN/2/Rev.4, at 12, para 43(c) (2007).

[126] CRC Reporting Guidelines, supra note 76, para 22.

[127] Id.

[128] Mexico inquiry, supra note 69, para 288.

[129] This provision reads: “Each State Party undertakes to make widely known and give publicity to the Convention and this Protocol and to facilitate access to information about the views and recommendations of the Committee, in particular on matters involving the State Party.”

[130] CEDAW Revised Reporting Guidelines, supra note 119, F.1.

[131] Id at F.2.

[132] Please refer to Annex 2 for the outcome document of the Expert Group Meeting that considered this background paper. It contains a list of elements that were identified by the experts.

[*] Contained in document E/1991/23.

[133] See also CERD General recommendation XX on article 5 of the Convention (1996), para 1 (noting that the list of rights in article 5 of the Racial Discrimination Convention is not exhaustive but extends to human rights and fundamental freedoms recognised in the UN Charter, the Universal Declaration of Human Rights and the International Covenants on Human Rights).

[134] See CEDAW General Recommendation 25, para 4.

[135] See Human Rights Committee (HRC), General comment 31, paras 13, 15; Committee on Economic, Social and Cultural Rights (CESCR), General comment 3, para 3, and General comment 9, paras 2 and 4.

[136] See HRC, General comment 4, para 4; CESCR, General comment 16, paras 16 and 24; CERD, General recommendation 31; Committee on the Rights of the Child (CRC), General comment 5, para 15.

[137] See The Bangalore Principles on The Domestic Application of International Human Rights Norms, adopted by a Judicial Colloquium held in Bangalore, India from 24-26 February 1988, para 8.

[138] HRC, General comment 31, para 15.

[139] HRC, General comment 28, para 11, 12 and 5.

[140] HRC, General comment 31, paras 15-17; CESCR, General comment 9, para 2; General comment 4, paras 4, 5, 16 and 33; CERD, General recommendation 26, para 2; General recommendation 25, para 2; CRC 4 para 25.

[141] HRC, General comment 31, para 18; CESCR, General comment 3, para 5.

[142] HRC, General comment 3, paras 1 and 2; CESCR, General comment 16, para 21; CERD General recommendation 13.

[143] HRC, General comment 3, para 1; CESCR, General comment 16, para 21; CRC, General comment 5, para 67; CEDAW, General recommendation 3.

[144] CESCR, General comment 16, para 39; CESCR, General comment 31, para 1.

[145] Adopted by General Assembly resolution 48/134 of 20 December 1993.

[146] CEDAW, General recommendation 6; CESCR, General comment 10, para 23, General comment 16, paras 21 and 38; CERD, General recommendation 31, para 5 (j); CRC, General comment 2, para 1, General comment 4, para 27, and General comment 5, para 65.

[147] CEDAW, Concluding Comments (Singapore), 25th session, July 2001.