1. CEDAW and the Protection of Rights of Women who Use Drugs
INTERNATIONAL WOMEN’S RIGHTS ACTION WATCH ASIA PACIFIC
Umyra Ahmad & Ishita Dutta
EHRN Regional Conference on Harm Reduction
6 April 2017, Vilnius, Lithuania

2. Some perspectives on CEDAW and Women’s Human Rights
Advancing women’s human rights (WHRs) needs to be seen as integral to broader agendas for social justice nation-building
It is an evolving/dynamic process
CEDAW’s ideological, conceptual and legal framework is outlined below
Naming
Recognizing
Claiming/ asserting
Naming rights and violations often crucial first step; then recognizing where these rights are located (social or legal recognition); then claiming and asserting rights by advocates and individuals in different forums, e.g. in CEDAW, in broader int’l human rights frameworks, in own nat’l legal frameworks
when one talks about ‘women’ it should be acknowledged that while there are shared commonalities of risk and vulnerabilities, there are also differences between women. These differences could be due to several factors, differences in identities, status or membership in different social groups: ethnic community, age, geography or area of work. Differences could also be due to sexual orientation, religious belief and nationalities. These differences can play an important role in the rights enjoyed and the way women are able to assert their rights or seek redress when discriminated. Because of this, it is important to remember that when we talk about women’s human rights, the causes, forms and consequences of the application or violation of rights may be very different for each woman.

3. Location of CEDAW in the International Human Rights Law System
Non-treaty documents – declarations/ world conference outcomes
Human Rights Treaties
International Law
Charter-based bodies
(9 core treaties)
CEDAW: Where does it fit in?
- Principles of non discrimination and substantive equality are central to human rights law.
- Gender equality provisions are found in international human rights treaties, regional agreements, declarations, etc
- The principle of COMPLEMENTARITY - CEDAW, however, specifically and comprehensively outlines how to eliminate discrimination in all areas of women’s lives – i.e, political, cultural, economic, social, cultural and family life. Other conventions cover other areas of life, e.g CESCR, CCPR, etc
Human Rights Council
Universal Periodic Review
Special Procedure Mandate Holders

4. Structure of CEDAW Articles 1-5: General Substantive
Framework of the Convention :
Arts 6-16:
Specific Substantive Areas
Articles 17-23
Committee and Procedures
GENERAL SUBSTANTIVE FRAMEWORK
Art. 1: Definition of Discrimination
Art. 2: Measures to be Taken to Eliminate Discrimination
Art. 3: Guarantees full development and advancement of women
Art. 4: Temporary Special Measures to achieve equality
Art. 5: Modifying Social and Cultural Patterns of Conduct (Sex role stereotyping and prejudices)
Article 6: Trafficking and Exploitation of Prostitution of Women
Article 7: Political and Public Life
Article 8: Participation at the International Level
Article 9: Nationality
Article 10: Education
Article 11: Employment
Article 12: Health
Article 13: Economic and Social Benefits
Article 14: Rural Women
Article 15: Equality before the Law
Article 16: Marriage and Family Life
Articles 23-30:
Administration, Interpretation

5. Key Elements of CEDAW NON-DISCRIMINATION SUBSTANTIVE EQUALITY
CEDAW Convention’s framework draws on 3 over-arching principles and elements:
NON-DISCRIMINATION
SUBSTANTIVE EQUALITY
STATE OBLIGATION
Also sets up mechanisms for review and monitoring of implementation of the Convention at the national level.
CEDAW establishes a framework for comprehensive interpretation of rights for women in all fields (civil, political, economic, social, cultural and other fields) - For example, although the rights of migrant workers are not specifically mentioned in CEDAW, their rights are located within the comprehensive anti-discrimination definition in the over over-all CEDAW framework and can name and claim rights specific to migrant contexts. Now CEDAW Committee has expanded the framework to address the rights of migrant workers in general recommendation 26,
Sets forth a framework of equality and non-discrimination
based on women’s experiences of inequality
Equality must be achieved in public and private spheres
Prohibits discrimination in all fields, including private sphere.
Address both de jure and de facto discrimination
3. Provides for obligations of the State
Includes ensuring equality from both public and private actors
break down stereotypes and challenge entrenched social and cultural values and practices that deny women the exercise of their rights.
Addresses not only individual violations but also the weaknesses in the system and institutions.
Demands that the State be responsible for the practical realisation of rights – the gap between law, policy and practice must be closed.
4. CEDAW also sets up mechanisms for review and monitoring review process, optional protocol inquiry procedure & individual complaints procedure. My colleague, Ishita will go into more details on how the CEDAW review process and individual complaints procedures under OP-CEDAW can act mechanism to hold states accountable for women’s rights violations

6. Non-Discrimination
Definition of discrimination under Article 1, CEDAW- ‘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’
Types of discrimination addressed under CEDAW:
Direct and indirect discrimination
De jure and de facto discrimination
For the purposes of the present Convention ‘discrimination against women’ shall mean 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.
Non-discrimination under article 1 CEDAW:
Has been articulated by the CEDAW committee with a very broad definition, where there is space to interpret it to bring different kinds of violations under the definition, allowing the rights of women to be recognized, named and asserted within this framework
CEDAW recognizes discrimination against women as socially constructed due to the historical imbalance of power between men and women.
To this end, CEDAW places an obligation of states to actively eliminate discrimination against women.
Often discrimination in the context of apparently or avowedly neutral laws or language but that have a discriminatory effect
3. Direct discrimination: that which has the intention of discriminating, Indirect discrimination: unintended, any action or inaction that has the effect of denying women the exercise of all rights in all fields.
Examples in relation to rights of WUD:
4. De jure v defacto discrimination

7. Elements Constituting Discrimination
Impairing or nullifying human rights w.r.t:
Recognition: acknowledgment
Enjoyment: structural arrangements
Exercise: ability to choose, act & realize
RESULTS
INTENTION
With intended or unintended consequences
ACTION
Entailing different treatment, restriction
or exclusion of women
The definition of discrimination under CEDAW can be envisioned as an inverse pyramid, in which there is a dynamic interplay between discriminatory ideologies, actions, intentions and results.
Where there are discriminatory results, a specific discriminatory intent is not required to qualify as a violation of CEDAW’s guarantee of non-discrimination.
However, when unpacking specific discriminatory outcomes, it may often be necessary to analyse how those outcomes are driven by specific intentions, actions or underlying ideologies, and addressing underlying ideologies may be a pre-requisite to achieving full equality of results.
Advocates play a key role in analysing specific situations to identify and document evidence of these connections.
IDEOLOGY
Action based on sex or gender based
ideology

8. Intersectional discrimination
When a person may be subject to discrimination based on several aspects of their identity, for example race/ethnicity, SOGI, status as a migrant, etc.
General Recommendation 28 (para. 18): State parties must legally recognise and eliminate intersecting forms of discrimination such as “race, ethnicity, religion or belief, health, status, age, class, caste, sexual orientation and gender identity”.
Although the text of the CEDAW does not explicitly refer to intersectionality, it contains references to women’s multiple identities such as those based on marital status, pregnancy or rural setting. Over the last 30 years CEDAW’s body of practice on intersectionality has been consistently evolving through its concluding observations, general recommendations and views in inquiries and communications regarding women’s human rights violations.
The strongest of these articulations is found in General Recommendation No. 28 which directly links intersectionality with the scope of state obligations under Article 2 and states that “The discrimination of women based on sex and gender is inextricably linked with other factors that affect women, such as race, ethnicity, religion or belief, health, status, age, class, caste, and sexual orientation and gender identity.”
In the context of state obligations to respect, protect and fulfil the human rights of sex workers, this would entail recognition by the state of the multiple identities of WUD as sex workers, as well as the intersection of these identity markers with their status as migrant workers- documented or undocumented, women living with HIV, rural women and racial or ethnic minority women. It would also require the state to take measures to address the multiple forms of discrimination arising from WUD intersecting identities, such as women in detention.
The intersecting identities of WUD compounds/exacerbates the violations/disparities/discrimination that they face. An expansive interpretation of CEDAW would require states to recognise the systemic discrimination faced by WUD, and structural barriers WUD face in claiming their human rights.

9. SUBSTANTIVE EQUALITY Substantive equality approach under CEDAW :
Recognizes systemic and historic discrimination against women; structural barriers against equality
Ensures equality of opportunity, access and results
Substantive equality vs. other approaches to equality:
Formal equality
Protectionism is not equality
Mandates corrective approach to equality
Temporary special measures under CEDAW
Substantive equality: includes equality in the law, but also recognizes need to correct systemic and historic discrimination, and the structural barriers to equality; equality of opportunity, access & results.
With this approach, the Paradigm of equality shifts from equality of treatment to equality of outcome.
It takes into account diversity, difference, disadvantage and discrimination, and focuses on need to take measures to ensure equality of outcomes for all. It deploys affirmative action through use of temporary special measures to accelerate social change.
Formal equality takes the approach of treating men & women the same, adopts a neutral standard, does not address the legacy of pre-existing inequalities or barriers to accessing the same rights formally provided
‘neutral’ standards are in fact based on male experiences and standards. By imposing male standards on women, it excludes or disables women from equal access, opportunities and participation.
Protectionist framework of equality sees women are essentially different from men therefore need to be protected. This approach often addresses by limiting women’s rights and freedoms; protecting “women”, not rights
Thus, reinforces male and female stereotypes. Does not lead to social transformation
Example: Prohibition of women from night work/migrating as it is considered to be unsafe for them
Corrective approach to equality: where some people (some women) are already in an unequal position & therefore have to be treated differently in order to correct that pre-existing disparity; may be through temporary special measures or affirmative action
5. In measures to achieve substantive equality, CEDAW clearly endorses the implementation by states parties of “temporary special measures” for women.
These refer to programmes, policies and laws that place them in a situation of comparative advantage to men for a limited period, with the aim of achieving substantive equality between the two sexes in the long term.
The temporary nature is with respect to outcomes that the measures seek to achieve and not an ad hoc term or period that determines what temporary might be.
To be effective, temporary special measures must particularly target women experiencing intersectional discrimination and as a result, face multiple barriers to the achievement of equality.
From this lens, temporary special measures must be accompanied by or operate in the context of enabling mechanisms which support the achievement of substantive equality
These mechanisms include services, structural policies and effective institutional remedies to overcome and deter discrimination

10. STATE OBLIGATION
States have a legally binding obligation to respect, protect, promote and fulfill the realization of substantive equality of women within their jurisdictions
State obligations extend to acts of private actors so that States are to act with due diligence in holding private actors accountable
State obligations extends to all individuals within state jurisdiction and applies extra-territorially
States parties are obligated to respect, protect, promote and fulfill the realization of substantive equality of women within their jurisdictions. This means that ALL CONSTITUENT UNITS - all branches and levels of government must ensure that law, policies and practices do not discriminate against women.
It also extends to acts of private actors, where states must act with due diligence in holding private actors accountable. This means that States have the obligation to:
(a) prevent and deter private acts of discrimination;
(b) investigate and negate their consequences;
(c) provide for remedies, redress, compensation or sanctions for the performance of such acts.
3. So lets look at the elements of state obligation to respect, protect, promote and fulfill the realization of the rights of women
a) Respect = CEDAW requires that parties refrain from laws and policies that that interfere directly or indirectly with women’s enjoyment of their rights. In the context of WUD, the State or its agents thus cannot do anything that violates the rights of WUD(articles 2(d) and 2(f)). This places a duty on state to ensure that criminal, civil, administrative and labour laws is not used against WUD but rather provide an effective legal framework that prevents discrimination and violence.
b) Protect = The obligation to protect is a positive obligation that requires states to protect women from discrimination by state and non state actors, including private actors such as other institutions, private enterprises or individuals (article 2(b) and 2(e)). Thus, it also places positive obligation on the state to exercise due diligence in protecting WUD from violence and other forms of violations committed by private actors. It ensures that enabling and safe environment is created to ensure that women WUD are able to access justice, in timely manner, in cases of discrimination and violence.
c) The obligation Promote requires states to create awareness on rights of WUD among all sectors of society. Thus, the State party is to be forward looking and adopt policies and programmes of action that include education and awareness campaigns targeted at eliminating stereotypes, prejudices and discrimination against women WUD within institutions, as well as society at large.
d) The obligation to fulfill means that states are under the obligation remove impediments, take positive steps, create institutions and remedies for legal protection of women, and provide enabling measures as per Articles 2(a), 2(c), 2(f), 3 and 4 of CEDAW

11. Addressing the Rights of Women who Use Drugs under CEDAW
Issues prioritized by advocacy groups re rights of WUDs
Legal status of WUDs in relation to criminal laws/public order laws/narcotics laws
Inequality and discrimination as the basis for law and policy responses
Stigma and discrimination; violence against WUDs
Public health policy: importance of a harm reduction approach & access to OST services in all settings
Right to social welfare and services: access to healthcare, SRHR, education, housing, etc.
Rights to family life: child custody, guardianship & adoption
Legal status…:
Women who use drugs suffer a disproportionate burden in application of criminal laws.
Globally, most women are incarcerated for drug offences, mostly, non-violent, than for any other crime.
Furthermore, are often used as a pretext for violation of the rights of women who use drugs. In addition to facing violence in the family and community, women who use drugs are also vulnerable to violence and harassment from police during arrest and detention.
The criminzalization of drug use also deters WUD from seeking help at shelters and crisis centres as it risks WUD of being identified as a drug user, losing parental rights, and/or facing criminal prosecution.
A Non-discrim and substantive equality approach under CEDAW would require governments to assess and address the direct and indirect impact of legal frameworks that criminalize and penalize drug users on the rights of WUD in accessing justice and health services, among other things.
Even where women who use drugs are not incarcerated harsh criminal penalties result in their invisibilization leading to adverse impacts on their health and social wellbeing.
Mandatory disclosure laws that give rise to confidentiality breaches combined with insensitive attitudes of service providers, disincentivize women from accessing health care and harm reduction services.
Further, most harm reduction interventions and services are designed for men and therefore fail to respond to the specific needs of women who use drugs.
In this light, framing the rights of women who use drugs under the CEDAW principles of non-discrimination and substantive equality requires analyzing the current range of responses that are mainly aimed at diminishing drug use through policing women who use drugs, but that result in discriminatory treatment against them and many instances cause irreparable violation of their rights.

12. Overview of Processes & Procedures
Cedaw in Practice:
Overview of Processes & Procedures

13. Look at the cedaw process as opportunities to do different things, such as establish good standards, testing legal standards/, define policy asks, share common positions, highlight invisible issues/specific violations(alternative information) depending on their contexts.
also for the charts to link to how it is meant to supplement national strategies and also additionally the new simplified reporting procedure which is not in the current diagram, in the chart you can also emphasise the role in the state monitoring and reporting a bit more than what is in the diagram
Source:

14. Preparation and Submission of NGO Alternative Report
UN General Assembly
Preparation and Submission of NGO Alternative Report
Observe review of State party report to CEDAW
Inform CEDAW of most critical issues for review
ECOSOC
Influencing composition of CEDAW Committee
CEDAW sends report from State parties’ review to ECOSOC
CEDAW COMMITTEE
Monitors progress made by States Parties in the implementation of the Convention
Composed of 23 experts who serve in their personal capacity for a term of four years
Three week meetings/pre-sessional meetings of working group two or three times a year
Reviews State party report and engages in constructive dialogue with State party
Formulates Concluding Observations
Follow up procedure
Submission of country report
Initial report one year after entry into force
Every four years thereafter
Follow up report on critical issues
STATE PARTY
Preparation of State party report
Publicising State party report and Concluding Observations
Pressuring Government to adopt Concluding Observations and general recommendations
Follow up procedure: Monitor and submit NGO information on State implementation of 1 – 2 critical issues
Participation in the preparation of State party report

15. Purpose of the Report
Provides a record of performance of the State vis-à-vis CEDAW stds
Identifies problems and obstacles to women’s equality
Finds solutions to the problems
Identifies good practices of the State party
Evaluates fulfilment of State obligation under CEDAW
Provides an opportunity for the State to make a commitment to women’s equality
Makes it possible for the State to benefit from CEDAW Committee’s vast technical expertise
Provides an accountability mechanism for States

16. Data Requirements for Reporting Process
The Committee would like to know:
What is the status of women in all fields in comparison with men?
Indicators
De facto rights enjoyed by women
What are the obstacles to improving women’s equality status
Lack of opportunity or lack of access
Why?
What action has the State taken to remedy the above:
De jure: law, policy, programmes (opportunity created)
Remedies provided, monitoring, institutional arrangements, set time bound targets and bench marks, etc.
What are the strengths and weakness of the state action?
How many women benefit and how (quality of results), etc.?

17. Follow up to the Concluding Observations
Publicising the review and follow-up process
Press releases to media outlets (before and throughout)
s, blogs, websites, etc. (throughout)
Monitoring implementation of the Concluding Observations (after release of COs)
Submitting a follow up report 2 years after the CEDAW session (on the 3 to 4 critical issues raised in COs)

18. GOOD PRACTICE: GEORGIA
58th CEDAW review session- July 2014
Shadow report training conducted in March 2014
GHRN & EHRN joint shadow report submission in June 2014
CEDAW Concluding Observations- strong recommendations re right to health of WUDs
(e) Providing gender-sensitive and evidence-based drug treatment services to reduce harmful effects for women who use drugs, including harm reduction programmes for women in detention.
Follow up shadow report submitted by GYLA on priority issue of VAW- also highlights issues of VAW against marginalized women- WUDs

19. What is the OP-CEDAW? A separate treaty that supplements CEDAW
It does not create new substantive rights but creates procedures for redress
For States to be bound by obligations under the Optional Protocol, States must have ratified BOTH CEDAW and OP-CEDAW
It provides for:
A complaints procedure
An inquiry Procedure

20. Communications Procedure
Individuals and groups of individuals can file a complaint/communication before the CEDAW Committee for specific violations of rights in CEDAW after exhaustion of domestic remedies
Examples of issues raised through communications procedure
Failure of state to provide effective protection against domestic violence;
Sterilization without informed consent;
Gender-based discrimination in capacity to transmit nationality to children;
Dismissal from public service for wearing a headscarf;
Restrictions on maternity leave benefits;
Financial settlement related to divorce;
Threatened deportation following denial of asylum claim based on domestic violence.

21. Inquiry Procedure
Enables the CEDAW Committee to launch on its own initiative, on the basis of reliable information, inquiries into grave and systematic violations of the rights of women in the Convention
Confidential
Opt Out Clause

22. EVOLVING PRACTICE
Pattern of discrimination against sex workers by state authorities in accessing services and seeking redress for rights violations
Incident of mass arrest and forced STI testing of sex workers
Technical support provided on use of OP CEDAW Inquiry procedure
Training on OP CEDAW
Consultation with community
Technical input into submission

23. CROSS MOVEMENT ALLIANCE BUILDING
Collective advocacy with allies pivotal to effectiveness of campaigns
Branching out to seek partners within our group and other movements
Key- building bridges based on common issues
e.g. with women’s rights movement on issue of right to bodily integrity
e.g. with sex workers’ rights movement on issue of right to health
e.g. with LGBT rights movement on issue of right to equality and non-discrimination

24. GOOD PRACTICE: KYRGYZSTAN
60th CEDAW review session- February 2015
Shadow report submitted by group of NGOs including Tais Plus and Asteria
Covered issues relating to women who use drugs, women sex workers and LBT women
Strong CEDAW Concluding Observations on all issues
Joint advocacy enabled groups to advocate strongly with other WROs and with CEDAW Committee

25. WORKING WITH OTHER TREATY BODIES: CEDAW & ICESCR
ICESCR- treaty on economic, social & cultural rights
Uses substantive equality approach
Requires a right to health approach to drug use vs. criminalization
Addresses gender impact of ESC rights violations, including right to health (general comment 16)
Advocacy with CESCR Committee to dialogue with CEDAW on women’s ESC rights
Processes & procedures
Reporting process
Optional protocol