The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and realisation of rights: reflections on standard settings and culture

• Author: Indira Jaising
• Pages: 9-13

9

Part I: Background

3. The Convention on the Elimination of All

Forms of Discrimination against Women

(CEDAW) and realisation of rights:

reflections on standard settings and culture

Indira Jaising

This article is drawn from a presentation made to the Commonwealth by Indira Jaising,

Additional Solicitor General of India.

Introduction

The articulation of rights and the setting of standards remains the first step towards the

realisation of those rights. Whether or not an individual can actualise the right is

dependent on the capability of the individual. It must be remembered that law is only

a tool of empowerment. For the actualisation of rights, the capabilities approach (de-

veloped by Amartya Sen and contextualised in the legal framework by Martha Nussbaum)

is extremely appealing as it gives meaning to human rights and provides judicially

manageable standards for testing the validity of law and policies.

The capabilities approach is premised on the concept of human dignity. In this ap-

proach, the first step is to identify components that indicate the functional capabilities for

living a life with dignity – such as life expectancy, bodily health, bodily integrity,

reasoning and imagination, emotional well-being etc. Nussbaum suggests that a

substantive list has to be drawn up of positive freedoms that will improve a person’s

quality of life. Finally efforts have to be made to ensure an enabling environment, by

securing institutional and material conditions that put a person in a position to secure

the capability.

States guaranteeing fundamental entitlements to their citizens cannot stop at providing

guarantees against state interference in the exercise of the freedoms of their citizens

alone,1 they also have to provide substantial entitlements. Adherence to a formal notion

of equality does not take into account historical disadvantages. As Nussbaum asserts,

the substantive equality paradigm in turn provides the rationale for affirmative action

to promote the capabilities of those who suffer from traditional subordination and

deprivation.

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1. Such as the rights in the US that are worded as ‘State shall not…’.