CEDAW Committee Issues Key General Recommendation on Women’s Access to Justice
On July 23, 2015, the UN Committee on the Elimination of Discrimination Against Women (CEDAW Committee) adopted a general recommendation on women’s access to justice, noting that the right of access to justice for women is essential to the realization of all the rights in the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). See Committee on the Elimination of Discrimination Against Women, General Recommendation No. 33 on Women’s Access to Justice, UN Doc. CEDAW/C/GC/33, 23 July 2015.
The CEDAW Committee makes general recommendations to provide authoritative guidance to States Parties on measures to adopt to ensure compliance with their obligations to protect and ensure women’s human rights.
Background to the General Recommendation
During its 48th session in 2011, the Committee decided to begin drafting a general recommendation on women’s access to justice, particularly with respect to articles 2(c) (establishing legal protection of the rights of women on an equal basis with men), 3 (guarantee of basic human rights and fundamental freedoms), 5(a) (eliminating gender stereotypes and prejudice), and 15 (law) of the Convention. This general recommendation was drafted in light of information gained through the Committee’s review of States’ reports, inquiries under the Optional Protocol to the Convention, as well as through the adoption of general comments on related issues, such as General Recommendation 28 (core obligations of States parties under article 2 (policy measures) of CEDAW). The purpose of the new general comment is to guide States in adopting measures that will enable them to fully comply with their obligations under CEDAW. See General Recommendation No. 33 on Women’s Access to Justice, 23 July 2015, paras. 2, 6, 11-12.
During the process of drafting the general recommendation, the CEDAW Committee adopted a note identifying possible issues to be addressed. The discussion on the development of the general recommendation, which took place during the 54th session, included oral interventions by stakeholders; presentations by keynote speakers; and the review of 57 written submissions from national human rights institutions (NHRIs), civil society organizations, and members of academia. These contributors included: immigrants’ rights groups (e.g., Immigrant Council of Ireland and the Platform for International Cooperation on Undocumented Migrants); international organizations (e.g., Amnesty International and Human Rights Watch); legal advocacy groups (e.g., Women’s Legal Services NSW and the Women’s Legal and Human Rights Bureau); regional human rights commissions (e.g., the Canadian Human Rights Commission and the European Network of National Human Rights Institutions); United Nations bodies (e.g., United Nations High Commissioner for Refugees (UNHCR), United Nations Children’s Fund (UNICEF), and the United Nations Office on Drugs and Crime (UNODC)); and women’s rights groups (e.g., Women Enabled International and International Women’s’ Rights Action Watch Asia Pacific).
Purpose of the General Recommendation
The Committee noted that while the right of access to justice for women is essential to the realization of all the rights in the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), this right was not being realized for a number of reasons including the lack of independent, impartial judicial systems; gender stereotyping; discrimination against women, including gender-based violence; illiteracy; armed conflict; and internal displacement. The Committee concluded that the failure to ensure that judicial mechanisms are physically, economically, socially, and culturally accessible to all women often resulted in women failing to report violations of their rights, and in authorities failing to investigate and punish perpetrators. See id. at paras. 1, 3, 7-10.
General Issues and Recommendations on Women’s Access to Justice
The Committee highlighted six key components that are necessary to ensure access to justice: justiciability, availability, accessibility, good quality justice systems, effective remedies, and accountability. See id. at para. 14.
Regarding justiciability, the Committee made a number of recommendations, including that States should take measures to: improve women´s unhindered access to justice systems; ensure the independence, impartiality, and integrity of the judiciary; combat corruption; remove barriers to women’s professional participation in judicial and quasi-judicial systems; revise rules concerning burden of proof; encourage NGOs and civil society actors to take part in litigating women´s rights; and protect female human rights defenders from harassment, threats, and violence. See id. at para. 15.
With respect to availability, the Committee suggested, among other things, that States ensure the creation and development of courts and tribunals, including mobile courts, which guarantee women’s right of access to justice in a non-discriminatory manner; provide women who are victims of violence with access to monetary aid, crisis centers, shelters, and counseling; and grant civil society organizations standing to file petitions. See id. at para. 16.
Concerning accessibility, the Committee recommended that States: provide legal aid and interpretation services; reduce filing fees for women with low incomes and waive fees for women living in poverty; ensure access to the Internet and other communication technologies; create gender units; establish justice centers, which should be accessible to women living in poverty and remote areas; and address the needs of women with disabilities concerning access to justice. See id. at para. 17.
With respect to good quality justice systems, the Committee recommended that States: ensure that justice systems are efficient, independent, and impartial; provide effective remedies that are gender-sensitive; and protect women’s privacy, safety, and other rights, in a way that is consistent with due process. See id. at para. 18.
Regarding remedies, the Committee provided a number of suggestions, including: providing and enforcing adequate and effective remedies in a timely manner; considering the activities for which women do not receive compensation when assessing damages; creating women specific funds for reparations; and adopting legislation to combat sexual violence, particularly in conflict and post-conflict situations. See id. at para. 19.
Concerning accountability, the Committee made several recommendations, including developing independent monitoring mechanisms; ensuring that discriminatory practices by justice professionals are addressed; and establishing policies that are gender sensitive, user friendly, and accountable. See id. at para. 20.
Discriminatory Laws, Procedures, and Practices
To address discriminatory laws, the Committee made recommendations including ensuring equality before the law; providing safe, accessible, and child-friendly complaint and reporting mechanisms in accordance with the Convention on the Rights of the Child and General Comment 14 of the Committee on the Rights of the Child (girls’ best interests should be a primary consideration); and abolishing parental or spousal authorization requirements for access to education, healthcare, and legal services. See id. at paras. 21-25.
Stereotyping and Gender Bias in the Justice System and the Importance of Capacity Building
The Committee made several suggestions concerning stereotyping, gender bias, and capacity building, including: raising awareness about stereotyping, particularly in gender-based violence cases; engaging health professionals and social workers in capacity building programs; and providing capacity building to judges, prosecutors, lawyers, and law enforcement officials regarding CEDAW, the CEDAW Committee’s jurisprudence, and the application of legislation prohibiting discrimination against women. See id. at paras. 26-29.
Education and Awareness-raising on the Impact of Stereotypes
With respect to education, the Committee suggests that States develop gender expertise; provide materials to inform women about their human rights, legal aid, and social services; and integrate educational programs on women’s rights and gender equality into curricula at all levels, including discussions about the role of men and boys as advocates. See id. at paras. 32-33.
Concerning awareness-raising through civil society, media, and information and communication technologies , the Committee made several recommendations including: emphasizing the role of the media with respect to dismantling stereotypes about women, particularly with respect to gender-based discrimination and violence; raising awareness among the media about women’s right to access to justice; and promoting an environment in which it is considered “legitimate and appropriate” for women to seek justice. See id. at paras. 34-35.
Legal Aid and Public Defense
The Committee made several recommendations concerning legal aid and public defense, including: institutionalizing systems that are accessible and responsive to women’s needs; ensuring that those who provide legal aid re competent, gender-sensitive, and respect confidentiality; and conducting information and awareness-raising programs for women about the existence of legal aid and public defense schemes. See id. at paras. 36-37.
The Committee suggested that States allocate financial and human resources to the justice system, including specialized judicial, quasi-judicial, and administrative bodies; alternative dispute resolution mechanisms; and national human rights institutions. Additionally, the Committee recommended that States should seek assistance from UN agencies, the international community, and civil society when national resources are limited. See id. at paras. 38-39.
Recommendations for Specific Areas of Law
With respect to constitutional law, the Committee recommended that States: provide explicit constitutional protection for equality and non-discrimination in the public and private spheres, incorporate international human rights law in their constitutional and legislative frameworks, and effectively use judicial review and other mechanisms to monitor the implementation of all fundamental rights. See id. at paras. 41-42.
Regarding civil law, the Committee recommended that States: eliminate all gender-based barriers to access to civil law, ensure that all contracts and private instruments are declared null and void if they restrict the legal capacity of women, and adopt measures to ensure that women’s freedom to enter into contracts and other private law agreements is enforced. See id. at paras. 43-44.
The general recommendation suggests that States adopt written family codes or personal status laws that provide for equal access to justice between spouses or partners regardless of their religious or ethnic identity or community; consider creating gender-sensitive judicial or quasi-judicial mechanisms for issues concerning property, land rights, inheritance, dissolution of marriage, and child custody; and ensure that personal status laws allow individuals to choose the applicable family law where multiple family law systems exist, and that courts can review these decisions. See id. at paras.45-46.
With respect to criminal law, the Committee made many recommendations, including that States: exercise due diligence to prevent, investigate, punish, and provide reparation for all crimes committed against women; protect women against secondary victimization, including by creating gender units in law enforcement departments; refrain from conditioning support to women on their assistance with human trafficking and organized crime cases; guarantee that women are not subjected to undue delays in applications for protection orders; monitor places of detention, particularly with respect to female prisoners; use preventative detention as a last resort and for the shortest time possible; and avoid detention for petty offenses, or the inability to pay bail for petty offenses. See id. at paras. 47-51.
Administrative, Social, and Labor Law
The general recommendation suggests that States ensure the availability of an independent review process in accordance with international standards for all decisions by administrative bodies; permit claimants to appeal a decision to a competent body, especially with respect to asylum and migration law; use administrative detention only in exceptional circumstances, as a last resort, for a limited time, and when it is necessary and reasonable, proportionate to a legitimate purpose, and in accordance with national law and international standards; and guarantee that women can challenge the legality of their detention. See id. at paras. 52-53.
Recommendations for Specific Mechanisms
Specialized Judicial and Quasi-judicial Systems and International and Regional Justice Systems
According to the Committee, specialized judicial and quasi-judicial mechanisms, including electoral and military courts, must comply with international standards concerning independence, impartiality, and efficiency, as well as the Convention. In discussing judicial systems, the CEDAW Committee includes a reference to its 2013 General Recommendation 30 which addresses the challenges women face in transitional and post-conflict situations.
Alternative Dispute Resolution Processes
The Committee notes that some States have adopted both formal and informal alternative dispute resolution systems to resolve disputes, which may violate women’s rights because these mechanisms are often governed by patriarchal values. Therefore, the Committee recommends that States inform women of their rights to use methods such as mediation, conciliation, and arbitration; guarantee that women engaging in alternative dispute settlement procedures have access to judicial and other legal remedies; and ensure that cases concerning violence against women, including domestic violence, are not referred to alternative dispute resolution procedures. See id. at paras. 57-58.
National Human Rights Institutions and Ombudsman Offices
The general recommendation suggests that States parties provide adequate resources to establish independent national human rights institutions (NHRIs) in accordance with the Paris Principles. These NHRIs should also be gender sensitive in their composition and activities; have a broad mandate to consider complaints concerning women’s human rights; and facilitate women’s access to individual petition processes, particularly those alleging multiple forms of discrimination. See id. at paras. 59-60.
Plural Justice Systems
To ensure women’s access to justice in plural legal systems, in which State laws exist simultaneously with religious, customary, indigenous, or community laws and practices, the Committee made several recommendations including: adopting legislation that clearly defines the relationship between plural justice systems; establishing State mechanisms to review the activities of plural justice systems, particularly village and traditional courts; formally recognizing and codifying religious, customary, indigenous, community, and other systems; ensuring that women have a real and informed choice about the judicial forum they prefer and the applicable law; and providing legal aid. See id. at paras. 61-64.
Withdrawal of Reservations to the Convention
The Committee recommends that State parties withdraw their reservations to the Convention, particularly with respect to articles 2 (policy measures), 15 (law), and 16 (marriage and family life). See id. at para. 68.
Ratification of the Optional Protocol to the Convention
The Committee also recommends that States parties that have not yet ratified the Optional Protocol do so. Additionally, the Committee urges States to establish outreach and educational programs in various languages to inform women, civil society organizations, and institutions about how the Optional Protocol furthers women’s access to justice, including with respect to violence against women, women in detention, health, and employment. See id. at paras. 67-68.
Outcome and Next Steps
The general recommendation was adopted by the Committee on July 23, 2015, and will provide authoritative guidance to States Parties on measures to adopt to ensure compliance with their obligations to protect and ensure women’s human rights. See id. at para. 2.
Additionally, the general recommendation will be used by UN Women at the country-level to increase women’s access to justice, support UN Women’s efforts to implement the conclusions of the 2012 Progress of the World’s Women Report – In Pursuit of Justice, and address the concerns raised at the 2015 Global Thematic Consultation on Addressing Inequalities. [UN Women Press Release]
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