Inconsistent Concerns: The CEDAW Committee’s Differential Treatment of States Parties Regarding Article 6

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The Convention for the Elimination of All Forms of Discrimination against Women (“CEDAW”), the product of an emerging global consciousness of discrimination against women, was adopted by the United Nations (“UN”) General Assembly in 1979. The UN Committee on the Elimination of Discrimination against Women is the expert body charged with monitoring compliance with CEDAW. As the Convention approaches its 40th anniversary, the world grows increasingly more divided on the proper interpretation of the Convention’s Article 6, which reads:

“States Parties shall take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women.”

The language surrounding prostitution remains vague as the Convention merely creates obligations surrounding the exploitation of prostitution. Given that sex work is such a charged subject, it is perhaps unsurprising that highly varied opinions have arisen as to what suffices as “exploitation” of prostitution. On one side of the ideological spectrum, abolitionists argue that sex work is inherently exploitative, and therefore, it should be abolished. Proponents of legalization, however, believe that there are non-exploitative instances of sex work. In those instances, where workers have agency and power, there should not be a blanket ban.

From these two opposing ideological perspectives, four distinct legal models have arisen: (1) criminalization; (2) partial decriminalization; (3) full decriminalization; and (4) legalization. Criminalization regimes, unsurprisingly, fully criminalize all aspects of prostitution. Partial decriminalization, or the Nordic model, only criminalizes the demand side of the transaction. An individual buying sex is subject to punishment, but the sex worker is not. Full decriminalization removes punishment from both the supply and demand sides. Legalization similarly decriminalizes; however, it also puts in place industry-specific regulations and affirmative protections for sex workers.

In its review of Member States’ submissions regarding CEDAW compliance, the Committee has specified neither which ideological position nor which legal regime it supports. Rather, in the Concluding Observations for Member States, the Committee makes recommendations tailored to each specific country and its legal regime, summarizing its findings on each nation’s progress. However, an interesting tension arises in these reports: the concerns and recommendations are not consistent between Member States employing the same legal regime.

Regarding the Nordic model, some nations using this regime, such as France and Norway, have faced pushback regarding the model’s potential negative impact. Meanwhile, the Committee does not express any concerns with respect to Sweden’s use of the Nordic model and the potential negative repercussions of partial decriminalization.

The Committee also has inconsistent concerns about the full decriminalization of prostitution. In Australia, the Committee is concerned that “the [Member] State party has not taken measures to address the demand for prostitution, to prevent women and girls from entering prostitution and support those who wish to exit prostitution.” This suggests that the Committee is pushing for some kind of partial decriminalization in which demand is disincentivized. It also paints an interesting picture about the Committee’s opinion of sex work as a choice. If the Committee seeks to discourage people from entering sex work, it likely does not believe that sex work is a valid, non-coercive choice. The concern about demand does not hold true in New Zealand or the Netherlands, however, for the Committee fails to address demand issues in its recommendations to either State. Therefore, there is marked inconsistency in the Committee’s concerns regarding the two decriminalization models — sometimes it pushes a more Nordic approach, but sometimes it does not.

Similarly, criminalization of prostitution is not addressed with uniformity. In some states with criminalization regimes, the Committee condemns the practice. In Liechtenstein, it “notes with concern that the Law on Prostitution criminalizes women in prostitution which may prevent them from reporting on exploitation and abuse by pimps and clients.” In Trinidad and Tobago, however, the Committee instead asks for “information on the complicity of law enforcement officers in the exploitation of women for prostitution, including the running of brothels, even though it is illegal under the Sexual Offences Act to sell and buy sexual services, and at the lack of information on exit programmes for women who wish to leave prostitution.” Despite acknowledging Trinidad and Tobago’s criminalization regime as a concern, the Committee fails to identify any specific potential negative consequences of the regime.

Interestingly, these inconsistencies in the treatment of prostitution models reveal that the Committee is not solidly within any of the ideological camps. The Committee fails to consistently push any of the four models, suggesting that it remains open to considering varied legal regimes regarding prostitution.

However, it is also valuable to consider the reasons why the Committee treats Member States with comparable legal regimes differently. One potential explanation for this derives from the Committee’s procedural limitations. The Committee is unable to conduct its own fact-finding, instead relying on submissions made by Member States to evaluate their progress. Additionally, nongovernmental organizations (“NGOs”) and civil society organizations may also make submissions, providing the Committee with a more robust picture of the situation within a nation. Because the Committee relies on these submissions by Member States and NGOs to form its recommendations, it follows that it is those very submissions that create fodder for differences across the Committee’s recommendations. Perhaps in nations where there is a high level of NGO approval of the regime, the Committee is less likely to criticize the model because the submissions fail to support such a criticism.

The issue then becomes one of differential Committee expectations based on disparities in domestic approval of regimes. It is not difficult to see how this could lead to a problematic inability to challenge any regime currently in place. In addition, the Committee’s limited gaze may make reform difficult: in a nation in which there is domestic disagreement over a new regime, civil society organizations’ reports reflecting the dispute may create an environment in which the Committee could be considered overly critical of fledgling, but important, reforms.

The inherent problem, then, is one that is echoed across a variety of UN monitoring committees: without the ability to independently assess situations, how can we expect these committees to ever properly monitor compliance and support progress?

 

 

Devyn Hébert is a second year student at Columbia Law School, where she is focusing on both international and domestic criminal law and human rights. In addition to serving as a staffer on the Columbia Journal of Transnational Law, she is an extern in the Domestic Violence Bureau at the Queens D.A.’s Office and the Public Interest and Human Rights Chair for the Columbia Society for International Law.