prejudices and custom…or the stereotyped roles for men and women”.155 The decision is
significant in that it highlights the obligation of the State to take steps to modify social
notions of gender stereotypes and eliminate prejudices and customs that harm women and
are at the root cause of all forms of violence against women, and contribute to failures to
respond to it.
5.1.4 Limitations and Opportunities
The CEDAW Committee rendered the communication in Kayhan v. Turkey 156
inadmissible on the grounds that sex discrimination was not explicitly raised as an issue
in the domestic proceeding although such discrimination was implicit in the facts of the
case. Thus if an issue was not raised in the domestic proceedings, it cannot be raised
for the first time in a communication with the CEDAW. It needs to be raised at the
domestic level and only if it fails, can it be raised again with CEDAW.
Despite Article 2(e) of CEDAW, which specifically prohibits discrimination by “any
person, group or enterprise” to raise a complaint of violation of a treaty right, a woman
must establish, like with other treaty bodies, that the violation has been by a State
Party. In order to raise ‘private’, or ‘non-State’ violations, it must be shown that the
State has failed to act to prevent the harm or to properly investigate, prosecute,
punish and provide reparation under national laws. Thus it is a two-step process and a
double burden for women to raise violations by non-State actors. One, women need to
show that they are victims of conduct amounting to a violation of a treaty right. Two,
the applicant must be able to demonstrate that the State is responsible under
international law for its failure to exercise due diligence to prevent or prosecute it.
The CEDAW Committee has done little with regard to enhancing the definition of
torture to include sexual violence and violations by non-State actors. Given that
CEDAW itself does not contain a specific prohibition against torture, the CEDAW
Committee could have taken all opportunities to clarify and affirm that women may be
victims of torture and therefore in need of protection or that non-State actors too may
be responsible for torture. In the 2005 report of the fact-finding inquiry in Ciudad
Juarez, Mexico, the CEDAW Committee adopted the traditional interpretation of
torture despite the fact that by then other regional and international bodies had
already established rape and other forms of sexual violence as torture. The report
speaks of torture as distinct from rape and other forms of sexual violence by private
citizens. 157 By not addressing rape as constituting torture, the CEDAW Committee
missed an important opportunity to affirm and lend the force of its weight and
credibility to the decisions of regional and international bodies.
The inquiry procedure of the Optional Protocol of CEDAW has been under-utilised.
Since the OP-CEDAW came into force, the Committee has conducted only one inquiry in
over a decade.158 The limited use of this procedure may precisely be an opportunity for
women to consider activating it, particularly or in addition to when individual
applications at other mechanisms fail. Since this procedure relates to multiple
violations and not an individual complaints mechanism, groups instead of individual
victims may take the initiative to activate the inquiry.
155
Non-Discrimination in International Law – A Handbook for Practitioners, 2011 Edition, Interights, London, p.
127.
156
Kayhan v. Turkey, CEDAW Comm. No. 8/2005 (27 January 2006).
157
CEDAW, Report on Mexico produced by the Committee on the Elimination of Discrimination against Women, and
Reply from the Government of Mexico, UN Doc. CEDAW/C/2005/OP.8/MEXICO, 27 January 2005 ¶¶ 232, 241, 273,
274.
158
Ibid.
REDRESS | INTERNATIONAL HUMAN RIGHTS TREATIES
45
Select target paragraph3
Add to table of contents