A Critical Assessment of Treaty-Monitoring Bodies: A Case Study of CEDAW’s Optional Protocol

Abstract

This section presents the first comprehensive analysis of decisions rendered under the Protocol in the first decade since its inception (2000-2009). It specifically discusses how the Committee has interpreted and applied CEDAW and the implications for using the claims mechanism as an avenue to resolve pressing and emerging women’s health issues.

Three key issues are of particular note. First, do CEDAW and its Optional Protocol afford more robust substantive and procedural safeguards to secure women’s health than other international instruments? Second, has the Committee interpreted the treaty and substantive State obligations objectively and consistently? Finally, what challenges exist to address pressing and emerging women’s health issues?

I argue that the Committee’s legal analyses were unsound and compromised the integrity of the interpretive process. I propose an enhanced framework for interpretation that is rooted in sound principles of international law and consistent with the unique character of the treaty. Employing a robust methodology will enhance rather than vitiate the deliberative process and secure the health of women worldwide. A five-step process is formulated that draws on customary international law and the existent parameters laden in the treaty, the Protocol, and the Committee’s rules of procedure. This fusion of central tenets ensures that the analyses are consistent, foreseeable, and legally sound.

Keywords: Global health, international law, CEDAW, Optional Protocol, women's health, human rights, gender, treaties