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The United Nations Convention on the Elimination of All
Forms of Discrimination Against Women (CEDAW) constitutes
the most comprehensive and important international instrument
for the non-discrimination and equality of women.
It obliges states parties to eliminate discrimination of women
in all spheres of life through legal, policy and programmatic
measures, de jure and de facto. Adopted by the UN General
Assembly in 1979, 185 states have ratified the Convention
or acceded to it. Austria ratified the Convention in 1982. 1 Its
monitoring body, the CEDAW Committee, has been essential
in developing international human rights law further, especially
relating to violations of women’s human rights in the
„private” sphere. 2
Despite its theoretical and practical importance
for developing and interpreting non-discrimination
and equality norms and policies in Austria, such as
the role the Convention played in the amendment of
the Federal Constitution in 1998 (Article 7 para 2
B-VG) 3 , or for the introduction of temporary special
measures through quota provisions aimed at ending
the underrepresentation of women, the scope of
rights granted by it are still relatively unknown in
Austria, even among legal professionals. As primary
actors in the implementation of anti-discrimination
provisions, legal professionals have been listed as a
target group of Austria’s obligations as a state party
to the Convention 4 because of their importance in
ensuring de-facto equality of women through nondiscriminatory
implementation of legal provisions
in general.
This article will provide a brief introduction to
the concept of discrimination under the Convention as well as
Austria’s obligations as a state party, with a particular emphasis
on implications for legal professionals. While the status of
the Convention is non-self-executing, its Articles 1-4, defining
discrimination and states parties obligations generally, were
passed with qualified majority in Austria. 5 The implementation
mechanism of the Convention consists of a reporting procedure
(Article 18) 6 and the additional procedures provided
for by the Optional Protocol to the Convention, the individual
communications procedure and the inquiry procedure.
1. Discrimination: de jure, de
facto, all spheres of life
The concept of discrimination laid down in the Convention is
remarkable in a number of ways. It moves beyond guarantees
of equality and equal protection before the law in other legal
instruments and demands of states parties to achieve equality
between women and men in all aspects of political, social,
economic, and cultural life – de jure and de facto.
Article 1 defines discrimination as „any distinction, exclusion
or restriction made on the basis of sex which has the
effect or purpose of impairing or nullifying the recognition,
enjoyment or exercise by women, irrespective of their marital
status, on a basis of equality of men and women, of human
rights and fundamental freedoms in the political, economic,
social, cultural, civil or any other field.”
The following aspects are noteworthy: Firstly, it connects
Familiar with
CEDAW Yet?
Austria – 25 Years After Ratifying
the Convention on the Elimination of
All Forms of Discrimination Against
Women
Karin Tertinegg
·································
the principle of non-discrimination of women to the enjoyment
of all human rights and fundamental freedoms by women, de
jure and de facto. Non-discrimination is thus clearly articulated
as a substantive norm, emphasising the importance of a
particular result. Secondly, the definition prohibits discrimination
against women on the basis of sex, covering both sex
and gender aspects of discrimination against women. Not only
direct forms of discrimination of women based on (biological)
sex are covered, but also formally gender-neutral provisions
and practices having the effect or purpose of discriminating
women. Thirdly, the wording „on a basis of equality of men
and women” challenges the traditionally applied concept in
international and national anti-discrimination law that antidiscrimination
means adaption to male predominant structures
and norms. 7
1) Konvention zur Beseitigung jeder Form von
Diskriminierung der Frau, BGBl Nr. 443/1982,
http://www.frauen.bka.gv.at/site/5548/default.aspx
(18 December 2007). At the time,
Austria made two reservations regarding its
obligations under Article 7 lit b (access of
women to the armed forces) and Article 11
(prohibition of night work of women). The first
reservation has been withdrawn entirely, the
second partially.
2) For an overview, see Schöpp-Schilling/Flinterman,
The Circle of Empowerment. Twentyfive
Years of the UN Committee on the Elimination
of Discrimination Against Women (2007).
See also Byrnes/Graterol/Chartres, State Obligation
and the Convention on Elimination of
All Forms of Discrimination against Women.
University of New South Wales Faculty of Law
Research Series. Working Paper 48 (2007),
Lacey, Feminist legal theory and the rights of
women, in: Knop (ed), Gender and Human
Rights (2004) 14-55, Holmaat/Tobler, CEDAW
and the European Union’s policy in the field of
combating gender discrimination, Maastricht
Journal of European and Comparative Law
(MJ) 2005, 399-426.
3) BGBl I 68/1998.
4) CEDAW Committee, ‚Concluding Comments
regarding Austria’s latest (Sixth) periodic report,
UN Doc CEDAW/C/AUT/CO/6 (2007),
http://www.frauen.bka.gv.at/site/5551/default.aspx
(18 December 2007).
5) They are thus – as „Verfassungsbestimmungen”
– part of Austrian constitutional
law.
6) Article 18 CEDAW imposes a reporting obligation
on state parties. The inter-state procedure
provided for in Article 29 has, to date,
not been utilized.
7) Holmaat/Tobler, MJ 2005, 403.
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