Racial Equality and the Convention on the Elimination of All Forms of Racial Discrimination
The Convention on the Elimination of All Forms of Racial Discrimination (CERD) is an international human rights treaty that has been ratified by 177 of the 194 countries in the world. It was adopted by the United Nations General Assembly in 1965 and entered into force in 1969. Canada has been a state party to this Convention since October 14, 1970.
Rights in CERD
The Convention on the Elimination of All Forms of Racial Discrimination requires that state parties condemn all racial discrimination and ensure that all public entities (governments, courts, all public programs and services) act in a non-discriminatory manner towards persons of all races. The Convention requires eliminating policies and laws that could have the effect of creating or perpetuating racial discrimination.
In addition to eliminating all racial discrimination by public bodies, the Convention requires state parties to legislate against racial discrimination by private parties, including by outlawing hate speech and hate crimes, and to take all appropriate measures to end racial discrimination.
The Convention also reiterates civil, political, and economic, social and cultural rights listed in other UN human rights treaties, which the state must ensure are enjoyed equally, without discrimination based on race.
Finally, the Convention requires state parties to promote education and public initiatives that combat racial discrimination.
Sexism and Racism Intersect
In 2000, the CERD Committee adopted a General Recommendation on the gender‑related dimensions of racial discrimination. General Recommendations are developed by treaty bodies from time to time to guide states parties when they are interpreting and implementing rights.
In General Recommendation 25, the Committee noted that 1) certain forms of sexist conduct may be directed towards racialized women specifically, such as sexual violence; 2) some forms of racial discrimination have a unique and specific impact on women, such as pregnancy resulting from racially motivated rape; and 3) women may lack access to remedies for racial discrimination because of gender bias in the legal system and discrimination against women in private spheres of life.
“FAFIA is committed to advancing the human rights of all women, and to combating racism and racist practices in Canada. The particular conditions and experiences of women who experience racism and racial discrimination are too often overlooked, both in accounts of the situation of women and in accounts of the situation of ‘racial minorities.’”FAFIA Report to CERD. 2007
Under Article 14 of the Convention, countries that have ratified can make a declaration permitting the Committee to consider complaints from individuals or groups regarding failures to comply with the rights in the CERD. Canada has not made a declaration regarding Article 14 and therefore women in Canada cannot make individual complaints to this treaty body.
As with other international human rights treaties, the CERD establishes a Committee of experts, who are elected by the countries that have ratified the Convention, to periodically review the compliance of each state party.
Canada submits reports on its compliance with CERD to the Committee on the Elimination of Racial Discrimination approximately every five years. Canada reported most recently in 2007 and 2012. FAFIA participated in these reviews, making submissions about the status and conditions of racialized women in Canada.
- CERD General Recommendation No. 25 on the gender‑related dimensions of racial discrimination
- 2007 FAFIA Report to CERD
- 2007 CERD Concluding Observations
- 2012 FAFIA Report to CERD
- 2012 British Columbia CEDAW Group and Lawyers’ Rights Watch Report to CERD
- 2012 CERD Concluding Observations
The International Covenant on Civil and Political Rights (ICCPR)
The International Covenant on Civil and Political Rights requires countries that have ratified it to both ensure the rights included and provide a legal remedy if those rights are violated. These rights are to be realized equally for women and men, and without any form of discrimination. They include:
- the right of self-determination
- the right to life
- the rights not to be enslaved or tortured
- the right to liberty and security of the person
- the right to freedom of movement
- the right to enter their country of origin
- the right to a fair hearing in criminal matters
- the rights to freedom of thought, conscience, religion and expression
- the right of peaceful assembly
- the right of freedom of association, and
- the right to vote and have access to public office
In Article 26, the Covenant also includes a key treaty commitment for women in Canada. Article 26 sets out the right to equality before the law and to equal protection of the law. It requires governments not to discriminate, to prohibit discrimination by law, and to provide effective protection against all forms of discrimination.
Canada has been a state party to this Covenant since May 19, 1976. Canada has also ratified the Optional Protocol to the International Covenant on Civil and Political Rights, which permits women in Canada to file individual complaints (petitions) if their Covenant rights are violated and they have not been able to obtain a remedy in Canada.
Currently the Human Rights Committee is considering a petition filed by Sharon McIvor regarding the ongoing sex discrimination in the status provisions of the Indian Act. Despite litigation under the Canadian Bill of Rights and the Charter of Rights and Freedoms, Indigenous women and their descendants still cannot pass on their Indian status on the same footing as Indigenous men and their descendants. This sex discrimination has been entrenched in the Indian Act since 1871. For more information please see the Poverty and Human Rights Centre’s 2011 and 2016 postings.
Canada’s 2015 Review
Canada was most recently reviewed by the Human Rights Committee in July 2015. Many Canadian non-governmental organizations, including FAFIA, made submissions on the occasion of the Committee’s sixth periodic review of Canada. Following the review, in its Concluding Observations, the Human Rights Committee expressed its concern about:
- The on-going sex-discrimination in the Indian Act
- The increasingly rates of women prisoners in Canada, with Indigenous women making up a disproportionately high and increasing share of women prisoners
- Canada’s failure to adequately address the issue of murdered and missing Indigenous girls and take measures to investigate, prosecute and punish those responsible
- The high rates of domestic violence, particularly against women and girls, the low number of reported cases of male perpetrated violence against women, the insufficiency of shelters, support services and other protective measures for those subject to violence, and police and criminal justice system failures to effectively investigate, prosecute, convict and punish perpetrators of violence
- Persistent gender inequalities including the high wage gap, the unequal application of pay equity legislation across federal, provincial and territorial jurisdictions, the underrepresentation of women in leadership positions in the public and private sectors, and state failures to ensure employment equity in the private sector
Canada’s 2005 Review
Canada was most recently reviewed by the Human Rights Committee in 2005. Many Canadian non‑governmental organizations, including FAFIA, made submissions. In its Concluding Observations, the Committee noted with concern:
- Canada’s failure to protect Indigenous women from violence, to address the poverty of Indigenous women, and to correct overt discrimination in the Indian Act
- Canada’s poor treatment of federally sentenced women prisoners
- The negative impact of cuts to social assistance and social programs on women and children, and other vulnerable groups, including African-Canadians
- Canada’s lack of procedures for overseeing implementation of the rights in the treaty, and for correcting the deficiencies that are identified by treaty bodies.
- 2015 Canada: Women’s Civil and Political Rights
- 2015 Murders and Disappearances of Aboriginal Women and Girls
- 2010 McIvor Petition to the Human Rights Committee
- 2005 Canada’s Fifth Report to the UN Human Rights Committee
- 2005 FAFIA’s Report to the UN Human Rights Committee
- 2005 Poverty and Human Rights Centre Report to the Human Rights Committee
- 2005 Concluding Observations of the Human Rights Committee
- 2005 FAFIA Press Release on Concluding Observations
The International Covenant on Economic, Social and Cultural Rights (CESCR)
The International Covenant on Economic, Social and Cultural Rights requires countries that have ratified it (who are known as State Parties to the treaty) to “take steps…to the maximum of available resources” to achieve the “full realization” of the rights.
These rights are to be realized equally for women and men, and without any form of discrimination. They include:
- the right to self‑determination for all peoples, including the right to freely pursue their economic, social and cultural development, and dispose of their natural wealth and resources
- the right to work, including the right of everyone to gain a living by work which he/she freely chooses
- the right to just and favourable conditions of work, including the right to safe and healthy working conditions, and the right of women to equal pay for work of equal value
- the right to form trade unions and the right to strike
- the right to social security, including social insurance
- the right to protection and assistance for the family, to maternity leave, and to protections for children from social and economic exploitation
- the right to an adequate standard of living, including adequate food, clothing and housing
- the right to be free from hunger
- the right of everyone to the enjoyment of the highest attainable standard of physical and mental health
- the right to education, including compulsory, free primary education and secondary and post‑secondary education that is accessible to all
- the right to take part in cultural life.
Canada has been a state party to this Covenant since May 19, 1976. An Optional Protocol to the CESCR was adopted by the General Assembly in December 2008 and came into force in May 2013. If Canada ratified this Optional Protocol, women in Canada would be permitted to file individual complaints (petitions) with the United Nations if their Covenant rights are violated and they have not been able to obtain a remedy in Canada. However, Canada has not ratified this Optional Protocol.
Canada Review 2016
Canada was most recently reviewed by the Committee on Economic, Social and Cultural Rights in 2016. Many Canadian non‑governmental organizations, including FAFIA, made submissions.
In its Concluding Observations, the Committee criticized Canada for CESCR criticized Canada for failing to recognize social and economic rights as justiciable rights and failing to provide domestic remedies for their violation. For many years, Canada has taken the position that, different from civil and political rights, economic and social rights are aspirational goals, not justiciable rights. This position is rejected by advocates and experts in Canada and around the world, as out of step with international law and with new developments in rights implementation.
In its 2016 Concluding Observations, the CESCR Committee urged Canada to:
Develop and implement a comprehensive national gender equality plan to address the structural factors leading to gender inequality, in close cooperation with provinces and territories, as well as in consultation with civil society organizations.
Other recommendations include:
- take the necessary legislative steps to give full effect to Covenant rights and provide legal remedies when they are violated
- implement effective pay equity laws in all jurisdictions
- repeal discriminatory provisions in the Indian Act
- provide affordable childcare services across the country
- improve income supports and employment opportunities for women with disabilities
- ensure that minimum wage in all jurisdictions allows a decent living for workers and their families
- step up efforts to prevent exploitation of temporary foreign workers
- ensure that social assistance rates are raised in all jurisdictions to permit a decent living for recipients
- address violence against women in a holistic manner, including by recognizing the link between poverty and vulnerability to violence
- increase shelters for women who are victims of violence, as well as long‑term housing solutions
- implement a human rights based national anti‑poverty strategy
- ensure access to legal abortion services in all provinces and territories
The Convention on the Elimination of Discrimination against Women
The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) is an international human rights treaty that has now been signed by 187 of the 194 countries in the world. It was adopted by the United Nations General Assembly in 1979 and entered into force in 1981. Canada ratified the Convention in 1981.
The Convention is inspired by the fundamental principles that all human beings are equal in dignity and worth, and that women and men are equal persons in all respects.
Countries that ratify the Convention agree to protect, respect and fulfill the rights of women that are set out in it. A central element of the Convention is the clear duty of governments to take positive action to ensure women’s equality. Article 3 of the Convention says:
States Parties shall take in all fields…all appropriate measures…to ensure the full development and advancement of women…
Specific articles of the Convention cover a wide range of social, economic, civil, and political rights, including the right to legal protections and remedies when rights are violated, to equality in employment, equal pay for work of equal value, child care facilities, paid maternity leave, and equality in marriage, politics, and economic and social life.
The CEDAW Review Process
The Convention establishes a Committee with the mandate to monitor the progress of each country in realizing its commitments. The CEDAW Committee is comprised of twenty-three experts on women’s human rights elected to four year terms by the countries that have ratified the Convention. (Committees established under international human rights conventions and covenants are referred to as ‘treaty bodies.’)
Each country is reviewed by the Committee approximately every four years.
Canadian governments, lead by the federal government, prepare a report on Canada’s compliance with the Convention, with each province and territory contributing material on its own record.
Representatives of Canada go to Geneva for a scheduled in‑person session with the Committee. A federal official heads the delegation, which usually includes representatives from federal government departments, and some provincial and territorial governments. The Committee members question Canada, and engage in a “constructive dialogue”. The Committee then prepares its Concluding Comments, noting where progress has been made and identifying issues that need to be addressed. The Concluding Comments contain specific recommendations for Canadian governments.
Canada was reviewed in 1997, 2003, 2008 and will be reviewed again in 2015.
NGOs and the Reviews
The participation of non-governmental organizations (NGOs) in reviews by treaty bodies is actively encouraged by the United Nations. In particular, NGOs are invited to submit alternative reports and to attend in‑person sessions.
NGOs in attendance at the meetings of the CEDAW committee have both formal and informal opportunities to address and meet with members of the Committee.to discuss concerns.
The Committee’s Recommendations
FAFIA and other NGOs publicize the recommendations of the Committee and attempt to work with governments to ensure the full implementation in Canada of women’s rights under CEDAW. Governments in Canada have been criticized by UN treaty bodies for the lack of follow-up on recommendations. Both the treaty bodies and Canadian NGOs have called on the federal government to create effective mechanisms to oversee Canada’s implementation of its commitments under CEDAW and other international human rights treaties.
CEDAW Optional Protocol
The Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women is a separate supplementary document to the Convention, which not only allows the Committee to initiate an inquiry (see CEDAW Inquiry page) but also allows an individual or a group of individuals to submit a complaint (called a communication) to the Committee if they believe a Convention right has been violated and the complaint cannot be resolved in Canada. Canada ratified the Protocol on October 18, 2002. The first communication against Canada to be heard on its merits was Kell v. Canada. The full text of this decision is included in Reports and Submissions.
Why Does CEDAW Matter?
The Convention sets out internationally recognized norms against which the performance of governments can be measured. The review procedures provide a mechanism through which the international community and women in their own countries can hold governments accountable for respecting the commitments they have made. International accountability mechanisms are particularly important where women are under‑represented in government decision-making and when full implementation of the human rights of women is still a work in progress.
2016 FAFIA Coalition Submission
Because its 2016! A National Gender Equality Plan!
2016 Canadian Association of Sexual Assault Centres and FAFIA joint submission
Violence against Women
2016 The Native Women’s Association of Canada and FAFIA joint submission
Implementation of CEDAW Recommendations from Article 8 Inquiry on Missing and Murdered Indigenous Women and Girls
2016 The Canadian Association of Elizabeth Fry Societies, Chair in Indigenous Governance and FAFIA joint submission
Indigenous Women and Women in Detention
2008 FAFIA Framework for CEDAW Implementation
FAFIA proposal for implementation mechanism
2008 FAFIA Press Release on CEDAW Recommendations
Canada asked to report back to CEDAW Committee on two priority recommendations
2008 British Columbia CEDAW Group Report to CEDAW
Inaction and Non‑compliance: British Columbia’s Approach to Women’s Inequality
2008 FAFIA Report to CEDAW
Women’s Inequality in Canada
2003 FAFIA Report to CEDAW
Canada’s Failure to Act: Women’s Inequality Deepens
2007 “Minding the Gap: Human Rights Commitments and Compliance”
Canadian women’s use of CEDAW procedures, from Poverty: Rights, Social Citizenship and Legal Activism. (Vancouver: UBC Press, 2007)
2012 Canada Follow-up Report in response to Kell Decision
Canada responds to CEDAW Committee’s decision
2012 CEDAW Decision in Kell v. Canada
Decision finding Canada in violation of rights of Cecilia Kell to protection from male violence, access to housing and legal aid
2008 CEDAW Concluding Comments
Recommendations to Canada from the CEDAW Committee after review of Canada’s 6th and 7th reports
2003 CEDAW Concluding Comments
Recommendations to Canada from the CEDAW Committee after review of Canada’s 5th report