CEDAW in National Courts: A Case Study in Operationalizing Comparative International Law Analysis in a Human Rights Context
Anthea Roberts, Paul Stephan, Pierre-Hugues Verdier, and Mila Versteeg (eds), Comparative International Law (Oxford University Press, Oxford, Forthcoming)
45 Pages Posted: 8 Mar 2017 Last revised: 5 Feb 2019
Date Written: March 5, 2017
In an article published in the American Journal of International Law (AJIL), I tackled the difficult question of how to explain the pattern of domestic judicial use of the Convention on the Elimination of Discrimination Against Women that I had identified, and I suggested explanations for this pattern. My tentative conclusion was that what similarities and differences were observable resulted, at least in part, from the functions that international human rights law fulfills in domestic jurisdictions, and that these functions may differ from the role that international human rights law plays at the international level. It was suggested that the observable pattern of references to CEDAW in national level courts results, to a significant degree, from the combination of the four elements involved in comparative international human rights law: that it is international law; and that it concerns human rights; and that it is law; and that it is being applied domestically. In this article, I referred to both the methodology I used, and the findings of the study on which this analysis was based, in summary form, promising a fuller account in this book. This chapter seeks to fulfil the promise in my AJIL article to explain my methodology and my basic findings in more detail. The chapter is structured as follows. Part II presents a brief outline of CEDAW in order to locate what follows. Part III provides a detailed analysis of the methodology I adopted in undertaking the study, including a discussion of the sources I used in compiling a detailed dataset of judicial opinions and how I formulated the questions used to analyze this dataset. Part IV presents the basic findings that resulted from this analysis. Part V concludes. There are, in addition, two appendices. Appendix A sets out the electronic and other databases and datasets from which my dataset of domestic cases citing CEDAW was drawn. Appendix B provides citations for each of the cases in the dataset, by jurisdiction.
Keywords: CEDAW, gender discrimination, comparative international law, human rights
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