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Published online by Cambridge University Press: 10 February 2025
1 Asiimwe, Jacqueline, Making Women's Rights a Reality in Uganda: Advocacy for Co-Ownership by Spouses, 4 Yale Hum. Rts. & Dev. L.J. 171, 174 (2001)Google Scholar.
2 Id. at 173.
3 See, e.g., José E. Alvarez & Judith Bauder, Women's Property Rights Under CEDAW 348–50 (2024).
4 Id. at 1086.
5 Id. at 1087.
6 United Nations Convention on the Elimination of All Forms of Discrimination Against Women, Art. 14, Dec. 18, 1979, 1249 UNTS 14. Locke argues that women have been bound to subjugation by men's “conjugal power.” John Locke, Two Treatises on Government §§ 48, 192 (1960).
7 ESCR-Net, Nature of the Case, E.S & S.C. v. United Republic of Tanzania, CEDAW/C/60/D/48/2013 Communication No. 48/2013 (Nov. 18, 2015), at https://www.escr-net.org/caselaw/2015/es-sc-v-united-republic-tanzania-cedawc60d482013-communication-no-482013.
8 The CEDAW Committee issued its General Recommendation No. 34 on the Rights of Rural Women qualifying “rural women's rights to land, natural resources, including water, seeds, and forests, and fisheries as fundamental human rights.” CEDAW, General Recommendation No. 34 (2016) on the Rights of Rural Women, CEDAW/C/GC/34 (Mar. 7, 2016). In fact, the General Recommendation calls for “high-quality seeds, tools, knowledge and information . . . .”
9 CEDAW, General Recommendation No. 39 (2022) on the Rights of Indigenous Women and Girls, paras. 54, 55(f), CEDAW/C/GC/39 (Oct. 31, 2022).
10 The cases referenced are: (1) Ms. Dung Thi Thuy Nguyen v. The Netherlands (on maternity benefits of self-employed women); (2) Elisabeth de Blok et al. v. The Netherlands (on maternity benefits of self-employed women); (3) Natalia Ciobanu v. Republic of Moldova (on pension benefits when states fail to consider unpaid work in contributory pension schemes); and (4) V.P. v. Belarus (on pension benefits after legal changes).
11 Amartya K. Sen, Development as Freedom 203 (1999).
12 Id. at 190–233.
13 The authors also critique the anodyne nature of some of the Concluding Observations of the CEDAW Committee. These points are well taken, but need to be understood in the context within which the Committee works as outlined by the authors themselves. See id. at 33–47. Although the treaty is binding on the states, the accountability gap is a challenge that all treaty bodies must deal with.
14 Id. at 209.
15 CEDAW Article 5.1 – “States Parties shall take all appropriate measures: (a) To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.”
16 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, Art. 5, July 11, 2003, at https://www.ohchr.org/sites/default/files/Documents/Issues/Women/WG/ProtocolontheRightsofWomen.pdf [hereinafter Maputo Protocol] ((Elimination of Harmful Practices) – “States Parties shall prohibit and condemn all forms of harmful practices which negatively affect the human rights of women and which are contrary to recognised international standards. States Parties shall take all necessary legislative and other measures to eliminate such practices, including: a) creation of public awareness in all sectors of society regarding harmful practices through information, formal and informal education and outreach programmes; b) prohibition, through legislative measures backed by sanctions, of all forms of female genital mutilation, scarification, medicalisation and para-medicalisation of female genital mutilation and all other practices in order to eradicate them.”).
17 Id. Art. 17 ((Right to Positive Cultural Context) – “1. Women shall have the right to live in a positive cultural context and to participate at all levels in the determination of cultural policies. 2. States Parties shall take all appropriate measures to enhance the participation of women in the formulation of cultural policies at all levels.”).
18 Emphasis by the Reviewer.
19 Mulumeoderhwa, Maroyi, Landless and “Childless” in the Eastern Democratic Republic of Congo: High School Students’ Perceptions of Gendered Constitutional Rights, 52 L. & Soc'y Rev. 1026 (2018)Google Scholar (emphasis removed by author).
20 Jones Day, China Further Opens Its Market with New “Foreign Investment Law,” Jones Day Insights (Feb. 14, 2020), at https://www.jonesday.com/en/insights/2020/02/chinas-new-foreign-investment-law.
21 CEDAW, Views Adopted by the Committee Under Article 7(3) of the Optional Protocol, Concerning Communication No. 155/2020, CEDAW/C/84/D/155/2020 (Mar. 8, 2023).
22 See generally Amartya Sen, Commodities and Capabilities (1985); Amartya Sen, Development as Capability Expansion, 19 J. Dev. Plan. 41 (1989); Sen, supra note 11; Amartya Sen, Capabilities, Lists, and Public Reason: Continuing the Conversation, 10 Fem. Econ. 77 (2004).
23 A case study that Martha C. Nussbaum references in: Women and Human Development: The Capabilities Approach 15–16 (2000).
24 Id.
25 Id. at 86.
26 CEDAW, General Recommendation No. 28 on the Core Obligations of State Parties Under Article 2 of the Convention on the Elimination of All Forms of Discrimination Against Women, CEDAW/C/GC/28 (Dec. 16, 2010). General Recommendation 28 on the Core Obligations of State Parties Under Article 2 of the CEDAW introduced for the first time intersectionality as a basic concept for understanding the scope of the general obligations of states parties contained in Article 2. It also defined discrimination of women based on sex and gender as “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.” Id., para. 28.
27 CEDAW, General Recommendation No. 37 (2018) on Gender-Related Dimensions of Disaster Risk Reduction in a Changing Climate, CEDAW/C/GC/37 (Mar. 13, 2018).
28 “All IDPs and refugees, as well as all other persons, shall have their rights restored in the lands that were arbitrarily and illegitimately taken away from them. Stripping any individual or group of individuals from their traditional and historic right to ownership of lands and access to water shall only be permissible after conducting consultations or offering compensation to them on a just basis.” See Juba Agreement for Peace in Sudan Between the Transitional Government of Sudan and the Parties to Peace Process, Constitution Net (Oct. 3, 2020), at https://constitutionnet.org/sites/default/files/2021-03/Juba%20Agreement%20for%20Peace%20in%20Sudan%20-%20Official%20ENGLISH.PDF.
29 “The proceeds from the transactions of gold and diamonds shall be public monies which shall enter a special Treasury account to be spent exclusively on the development of the people of Sierra Leone, with appropriations for public education, public health, infrastructural development, and compensation for incapacitated war victims as well as post-war rehabilitation and reconstruction. Priority spending shall go to rural areas.” Peace Agreement Between the Government of Sierra Leone and the Revolutionary United Front of Sierra Leone (July 7, 1999), at https://www.sierra-leone.org/lomeaccord.html.
30 1985: Narmada Bachao Andolan, Frontline (Aug. 15, 2022), at https://frontline.thehindu.com/environment/india-at-75-epochal-moments-1985-narmada-bachao-andolan/article65730806.ece.
31 Vaishnavi Pallapothu, Subversion Diaries, Indigenous Women's Movements in New Zealand, The Gender Security Project, at https://www.gendersecurityproject.com/subversion-diaries/indigenous-womens-movements-in-new-zealand.
32 Convention on the Rights of Persons with Disabilities, Art. 12, May 3, 2008, 2515 UNTS 3.
33 Protocol to the African Charter on Human and People's Rights on the Rights of Women in Africa, Arts. 15–16, July 11, 2003, at https://au.int/en/treaties/protocol-african-charter-human-and-peoples-rights-rights-women-africa.
34 Bhe v. Khayelitsha Magistrate and Others, 2005 (1) BCLR 1 (CC) (S. Afr.).
35 Id., para. 209.
36 Id.
37 Id.
38 Elizabeth Gumede (born Shange) v. President of the Republic of South Africa, 2008 (3) SA 152 (CC), at 3 (S. Afr.).
39 CEDAW, General Recommendation No. 25, on Article 4, Paragraph 1, of the Convention on the Elimination of All Forms of Discrimination Against Women, on Temporary Special Measures, 3 (Aug. 18, 2004).