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Universality, Diversity and Legal Certainty: Cultural Diversity in the Dialogue Between Cedaw and States Parties

Forthcoming in: The Rule of Law at the National and International Levels: Contestations and Deference, Oxford: Hart Publishing (2015)

Amsterdam Law School Research Paper No. 2014-40

Amsterdam Center for International Law No. 2014-25

39 Pages Posted: 18 Jul 2014  

Yvonne Donders

Amsterdam Center for International Law

Vincent Vleugel

Amsterdam Center for International Law

Date Written: July 16, 2014

Abstract

A common criticism of allowing for cultural diversity in the implementation of international human rights law is that it leads to relativism and to a lack of sufficient clarity and predictability of the norms, undermining legal certainty as a constitutive element of the international rule of law. This paper examines the dialogue between the Committee on the Elimination of All Forms of Discrimination against Women (CEDAW) and its states parties on the room for cultural diversity in the interpretation of treaty norms, and its implications for legal certainty.

The analysis of the dialogue, as part of the periodic state reporting procedure and the individual communications procedure, between the CEDAW and states parties shows that the Committee is, generally speaking, not very receptive towards states’ cultural arguments, not leaving much room for cultural diversity in the implementation of the treaty provisions. In the determination of the room for cultural diversity, the Committee mainly relies on its own understanding of the specific content of the norms, not on an understanding resulting from the dialogue with states parties. While the Committee (to some extent) succeeds in creating predictability and commonality in its interpretation of treaty norms (formal legal certainty), the lack of a real dialogue implies that the interpretation of treaty norms by the Committee may not always be acceptable to states (substantive legal certainty).

Keywords: human rights, cultural diversity, legal certainty, rule of law, UN treaty bodies, international human rights law

JEL Classification: K33

Suggested Citation

Donders, Yvonne and Vleugel, Vincent, Universality, Diversity and Legal Certainty: Cultural Diversity in the Dialogue Between Cedaw and States Parties (July 16, 2014). Forthcoming in: The Rule of Law at the National and International Levels: Contestations and Deference, Oxford: Hart Publishing (2015) ; Amsterdam Law School Research Paper No. 2014-40; Amsterdam Center for International Law No. 2014-25. Available at SSRN: https://ssrn.com/abstract=2466894

Yvonne Donders (Contact Author)

Amsterdam Center for International Law ( email )

P.O. Box 1030
Amsterdam, 1000 BA
Netherlands

HOME PAGE: http://home.medewerker.uva.nl/y.m.donders/

Vincent Vleugel

Amsterdam Center for International Law ( email )

P.O. Box 1030
Amsterdam, 1000 BA
Netherlands

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