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Lee Waldorf, UNIFEM, New York

Dear Colleagues,

Following from OHCHR’s very helpful and informative message on the Economic, Social & Cultural Rights perspective, I thought I’d add some further inputs from the CEDAW perspective.

Constitutional Provisions Regarding Temporary Special Measures: CEDAW

The Committee on Economic, Social and Cultural Rights stated in its General Comment #20, that “in order to eliminate substantive discrimination, States parties may be, and in some cases are, under an obligation to adopt special measures to attenuate or suppress conditions that perpetuate discrimination.” (par. 9)

This also holds true for States parties’ obligations under CEDAW.

CEDAW requires States parties to take “all appropriate measures” to eliminate discrimination against women (e.g. articles 2, 3, 7 & 8).  The Convention also clarifies (in article 4) that temporary special measures intended to accelerate the achievement of equality between men and women should not be considered to be a form of discrimination. Read together, these provisions indicate that TSM are among the measures governments should consider adopting in order to eliminate discrimination against women.

This interpretation has been confirmed by the CEDAW Committee in its General Recommendation on public and political life (#23). More recently, in its General Recommendation on temporary special measures (#25), the Committee addressed the specific question of constitutions: “States parties should include, in their constitutions or in their national legislation, provisions that allow for the adoption of temporary special measures.”

The same recommendation regarding constitutions and legal frameworks has recently been made by the Committee in its concluding observations for Saint Lucia (2006), Belize (2007), and Sierra Leone (2007).  As well, the Committee has commended the inclusion of enabling provisions on affirmative action in constitutions where these already exist – see, for example, the concluding observations for India (2000). It should also be noted, regarding Nepal, that the Committee commented on the 5% constitutional minimum for fielding women candidates for election by political parties, and recommended that Nepal intensify its use of temporary special measures (2004).

In short – CEDAW advises establishing TSM through provisions in constitutional or other appropriate legal frameworks in those areas, such as women’s political participation, where they are needed to accelerate the achievement of equality.  Legal provisions are of course not sufficient in themselves to achieve equality, and should be supported by a range of further actions.

For a quick review of countries (indicative, not exhaustive) which have integrated temporary special measures for women’s political participation into their constitutions, see chapter 2 of the 2008/9 edition of UNIFEM’s “Progress of the World’s Women” (http://www.unifem.org/progress/2008/).This chapter also provides a helpful overview of further actions that may be needed in addition to temporary special measures to achieve equality.

Lee Waldorf
Human Rights Advisor
UNIFEM, New York
212 906 6458

 





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