is a remarkable commitment, and since it was made, the CERD Committee has passed two other General Comments that show a sophisticated analysis and mainstreaming of gender issues. General Comment 27 (2002) on discrimination against the Roma provides states with measures for the protection of Roma communities. It also refers in several instances to Roma women who are often victims of “double discrimination” (art. 6). In the area of education, for example, states are urged to take responsibility for the high drop-out rates of Roma children and to take into account gender issues that might force girls out of school far earlier than boys (art. 17). The comment calls on government programs, projects, and campaigns in the field of education to take into account the “feminization of poverty” (art. 22). The committee also urges that health programs implemented by states to service Roma communities factor into their policy and administration cultural attitudes that subordinate women and girls and contribute to their lower levels of education (art. 34).
CERD General Comment 29 (2002) focuses on the unique oppression caused by descent based discrimination, discrimination on the grounds of caste and analogous systems of inherited status.13 Discriminatory practices against affected communities might include the restricted ability to alter inherited status; socially enforced restrictions on marriage outside the community; private and public segregation, including in education and access to public spaces, places of worship, and public sources of food and water; subjection to debt bondage; and subjection to dehumanizing discourses referring to pollution or untouchability (art. 1). Moving further and further away from the monolithic construction of women seen in first tier instruments, General Comment 29 also identifies the particular vulnerability of women to multiple forms of discrimination in the areas of personal security, employment, and education (art. 12).
The comment goes on to identify discrimination in education based on perceived gender roles for girls as well as caste or descent (art. 44). General Comment 29 specifically refers to sexual exploitation and forced prostitution as gendered experiences for women discriminated against on account of descent. The comment encourages states to account for such abuse and respond to it in projects designed to support these groups (art. 11). Both General Comments 27 and 29 with their careful attention to multiple and intersecting forms of discrimination have been successful in acknowledging claims of Third World feminists and the women-of-color movement that fighting discrimination requires an evaluation of interlocking forms of oppression. The CERD Committee also provides a gender analysis in General Comment 31 on the prevention of racial discrimination in the administration and functioning of the criminal justice system (2005).14 It is certain that in future comments gender will remain central to any analysis of racially discriminatory practices.
The CERD General Comments focus chiefly on discrimination that can be traced to state policy, for example, discriminatory entrance requirements for schoolchildren or discriminatory selection criteria for public housing. However, less attention is paid to investigating and naming inequality and discrimination as it manifests itself in formal and informal community institutions, including the home and places of worship. Thus, issues such as high incidence of domestic violence or early marriage within marginalized minority groups or cultures are overlooked because the focus of the General Comments is fixed on the position of vulnerable groups vis-à-vis oppressive state policy. Gender discrimination emanating from within the group is studiously avoided in the human rights narrative of second tier rights in an effort to avoid further stigmatizing such groups as the Mormons in North America, the Roma in Europe, and aboriginal peoples in the Pacific region. This omission inadvertently mirrors the omission of first tier rights to subject the family and other private institutions from any serious scrutiny of institutionalized violations against women and girls, particularly those arising from custom and religion.
The second tier instruments also continue to evade issues of sexual autonomy, thus leaving the enjoyment of this freedom in the custody of matriarchs and patriarchs in the family and the community. LGBT communities are well aware that their status as subaltern sexual minorities combined with race, color, descent, nationality, or ethnic features can greatly magnify hostility and even violent reprisals from their own ethnic but heterosexual community as well as from the dominant heterosexual community. This omission places the reality of discrimination on the grounds of race and sexual orientation out of sight and reach of human rights protections.
Third Tier
The distinguishing feature of third tier human rights instruments is that they are focused foremost on gender. Gender is not an afterthought but the core element shaping discriminatory practices against women. Third tier instruments view women’s rights away from the mirror reflection that is a man (formal equality) or the uniform representation of a woman as Everywoman (single category axis). I focus in particular on the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa (2003) (Maputo Protocol);15 CEDAW General Recommendation 12 (1989) on violence against women, Recommendation 14 (1990) on female circumcision, and Recommendation 19 (1992) on violence against women; the CERD General Comment 25 (2000) on gender related dimensions of racial discrimination; and the reports of the UN Special Rapporteurs, particularly, the Special Rapporteur on violence against women and its causes and consequences.16 Rather than providing a descriptive account of each provision within these instruments, I analyze the most profound distinction between third tier instruments and earlier instruments, namely, the expansion of third tier rights into the private sphere. This move has brought once invisible forms of gender-based discrimination, particularly familial and intimate partner exploitation, abuse and violence against girls and women to the forefront of human rights discourse. Most important, I look at the way in which third tier instruments have brought violence against women into the narrative of human rights law.
The CEDAW Committee’s General Recommendations and the provisions of the Maputo Protocol supply some of the most innovative normative and interpretative protections against inequality and discrimination on the grounds of gender. In 1989, the CEDAW Committee’s General Recommendation 12 specifically called on states to protect women against violence, including sexual violence, abuses in the family, and sexual harassment in the workplace. It also recommended that CEDAW signatories include in their periodic reports to the committee information about the legislative and other measures in force to protect women against violence; the existence of support services for women who are the victims of aggression or abuses; and statistical data on the incidence of violence of all kinds against women and on women who are the victims of violence (art. 1–4).
And in 1992, the CEDAW Committee’s General Recommendation 19 extended CEDAW’s general prohibition on sex discrimination to include gender-based violence, “that is, violence that is directed against a woman because she is a woman or that affects women disproportionately.” General Recommendation 19 states that CEDAW’s definition of discrimination prima facie includes gender-based violence, including acts that inflict physical, mental, or sexual harm or suffering; threats of such acts; coercion; and other deprivations of liberty (art. 6). General Comment 19 provides an illustrative list of those fundamental rights and freedoms that can be impaired by gender-based violence: the right to life; the right not to be subject to torture or to cruel, inhuman, or degrading treatment or punishment; the right to equal protection according to humanitarian norms in times of international or internal armed conflict; the right to liberty and security of the person; the right to equal protection under the law; the right to equality in the family; the right to the highest standard attainable of physical and mental health; and the right to just and favorable conditions of work (art. 7).
It is a defining feature of third tier human rights instruments such as CEDAW General Recommendations that “private” violence is not only identified as a human rights violation but that state parties have an obligation to protect victims, punish abusers, and eliminate the practice in communities (art. 9).
The preamble to the Maputo Protocol points out that “despite the ratification of the African Charter on Human and Peoples’ Rights and other international legal instruments by the majority of States parties, and their solemn commitment to eliminate all forms of discrimination and harmful practices, women
