Master of Laws, LL.M.
Department of law, University of Gothenburg
School of Business, Economics and Law
HRO800 - Master thesis (30 credits)
Fall 2024
From Convention to Peremptory Norm
Prohibition of gender discrimination as jus cogens
Märta Ekström
Supervisor: Dmitrii Kuznetsov
Examiner: Maria Grahn-Farley
Abstract
The thesis is investigating if the prohibition of gender discrimination can become a peremptory
norm of general international law (jus cogens). The introduction includes a background to
human rights and women’s rights and introduces the aim, research questions and method of the
thesis. It is also including limitations of what has been of importance and what has been
excluded as well as the disposition. The thesis has been done through analyzing current legal
instruments and case-law.
The current status of international law is explained and the nature of jus cogens, which consists
of norms recognized as the fundamental value of the international community. For it to become
a peremptory norm there are certain criteria; it needs to be of general international law and have
been recognized and accepted to not be derogated from by the whole community. It is described
through case-law and legal instruments. The prohibition of discrimination is a norm that is
recognized through multiple different legal instruments regarding race, gender and religion.
Prohibition of racial discrimination in the shape of apartheid is considered a jus cogens norm.
This has been used in relation to prohibition of gender discrimination where focus of the thesis
is.
To describe the legal instruments regarding gender discrimination the Convention on
Elimination of All Forms of Discrimination against Women (CEDAW) is explained and how
it is implemented. It is discussed on a regional plane through the Council of Europe Convention
on preventing and combating violence against women and domestic violence (Istanbul
Convention) and lastly through the non-binding international agreement the Beijing Declaration
and Platform for Action. The different sources are analyzed in relation to bringing forth the
prohibition of gender discrimination to be recognized as a jus cogens norm. Relating to the
aspect necessary for a norm to become jus cogens there is not enough recognition for the
prohibition of gender discrimination. The analysis shows how perspectives and stereotypes
regarding women are unchanging creating challenges for it achieving status as jus cogens.
Key terms: Women’s rights, prohibition of gender discrimination, jus cogens
2
Table of Contents
ABSTRACT ............................................................................................................................................................ 2
TABLE OF CONTENTS ............................................................................................................................................ 3
ABBREVIATIONS ................................................................................................................................................... 4
1. INTRODUCTION ......................................................................................................................................... 5
1.1 BACKGROUND ................................................................................................................................................ 6
1.2 AIM ............................................................................................................................................................... 10
1.3 LIMITATIONS ................................................................................................................................................ 10
1.4 METHOD AND THEORY .................................................................................................................................. 11
1.5 DISPOSITION ................................................................................................................................................. 12
2. CURRENT STATE OF INTERNATIONAL LAW ................................................................................ 13
2.1 THE NATURE OF JUS COGENS ........................................................................................................................ 14
2.1.1 General aspects of jus cogens .............................................................................................................. 14
2.1.2 Case-law showing peremptory norms .................................................................................................. 16
2.1.3 Investigative reports on jus cogens ...................................................................................................... 19
2.1.4 Summary .............................................................................................................................................. 22
2.2 PROHIBITION OF DISCRIMINATION ................................................................................................................ 22
2.2.1 Legal aspects of the prohibition of discrimination .............................................................................. 23
2.2.2 Discrimination in case-law and resolutions ........................................................................................ 26
2.2.3 Discrimination and Religion ................................................................................................................ 29
2.2.4 Summary .............................................................................................................................................. 31
3. LEGAL SOURCES OF WOMEN’S RIGHTS ......................................................................................... 32
3.1 GENERAL INFORMATION ............................................................................................................................... 32
3.2 CONVENTION OF ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN (CEDAW) ............ 32
3.2.1 CEDAW and Interpretation ................................................................................................................. 32
3.2.2 Committee on the Elimination of Discrimination against Women ...................................................... 34
3.3 COUNCIL OF EUROPE CONVENTION ON PREVENTING AND COMBATING VIOLENCE AGAINST WOMEN AND
DOMESTIC VIOLENCE (ISTANBUL CONVENTION) ................................................................................................ 36
3.3.1 Istanbul Convention and Interpretation ............................................................................................... 36
3.3.2 Case-law and GREVIO ........................................................................................................................ 38
3.4 BEIJING DECLARATION AND PLATFORM FOR ACTION .................................................................................. 40
3.4.1 Beijing Declaration .............................................................................................................................. 40
3.4.2 Platform for Action .............................................................................................................................. 40
3.4.3 Beijing +5 ............................................................................................................................................ 43
3.5 SUMMARY ..................................................................................................................................................... 45
4. ANALYSIS .................................................................................................................................................. 46
4.1 RESULTS ....................................................................................................................................................... 46
4.2 DISCUSSION .................................................................................................................................................. 49
4.3 FINAL REFLECTIONS AND FURTHER RESEARCH ........................................................................................... 53
5. BIBLIOGRAPHY ....................................................................................................................................... 54
3
Abbreviations
CEDAW International Convention of Elimination of All Forms of discrimination against
Women
CERD International Convention of Elimination of All Forms of Racial Discrimination
ECHR European Convention of Human Rights
EU Charter Charter of the Fundamental Rights of the European Union
ICJ International Court of Justice
ILC International Law Commission
Istanbul Council of Europe Convention on preventing and combating violence
Convention against women and domestic violence
Statute Statute of the International Criminal Court
UN Charter United Nations Charter
UDHR Universal Declaration of Human Rights
UN United Nations
UNTS United Nations Treaty Series
4
1. Introduction
Michelle Obama expressed in 2014 that “No country can ever truly flourish if it stifles the
potential of its women and deprives itself of the contributions of half its citizens”1.
In the world today there are about 153 countries that have laws discriminating against women.
Creating a world where women are denied as well as deprived their rights and fundamental
freedoms.2 Goals were set for 2030 to achieve gender equalities though progress has been made
over the past years, it is not going to be fulfilled. It is according to the UN going to take
approximately another 286 years to close the legal protection gap and abolish laws that are
discriminatory. To fulfill the goal for women in decision-making positions it’s going to be
around another 140 years. The estimated time to end child marriage is even further away at
roughly 300 years. One part of the goal is set at about 47 years and that is equality within
national parliaments.3
In 1998 Askari wrote an argumentative article titled “Girl’s Rights under International Law:
An Argument for Establishing Gender Equality as a Jus Cogens” describing that for girls to live
a life without discrimination, there needs to be a change in women’s rights. Askari suggests
that to combat discrimination, gender equality should gain status as jus cogens. It is described
that subordinate treatment of girls creates subordinate treatment of women, which leads way to
discrimination. Change is necessary to protect girl’s and women’s rights in a male dominated
system. Askari thus gives the solution to eliminating gender discrimination as elevating
equality.4
The fact that women and girls constitute half of the world’s population and still not having their
rights protected. It has been shown that including and empowering women creates thriving
societies, making it significant to achieve prosperity and sustainability. The Secretary-General
António Guterres has expressed gender equality as the “greatest human rights challenge in our
world”5.6 The COVID -19 pandemic led to an increase in gender inequalities creating situations
where women are at risk because of their gender.7 To combat inequalities and let all citizens
flourish it is important to include women.8 The goal to achieve gender equality is still important
1 C. Fernandez, ‘34 Michelle Obama Quotes that Will Inspire You to Live Your Best Life’, (Oprah Daily, 8
February 2022) accessed 21
February 2025
2 Oxfam International, ‘Gender justice and women’s rights’ < www.oxfam.org/en/what-we-do/issues/gender-
justice-and-womens-rights> accessed 21 February 2025
3 UN Sustainable Development goals, ‘Goal 5: Achieve gender equality and empower all women and girls’ <
www.un.org/sustainabledevelopment/gender-equality/> accessed 21 February 2025
4 L. Askari, ‘Girl’s Rights under International Law: An Argument for Establishing Gender Equality as a Jus
Cogens,’ (1998) Southern California Review of Law and Women’s Studies, vol. 8, no. 1, pp. 3–42. P. 4
5 United Nations, ‘Gender Equality’ accessed 25 February 2025
6 United Nations, ‘Gender Equality’, (n 5)
7 Oxfam International, ‘Gender justice and women’s rights’ (n 2)
8 UN Sustainable Development Goals (n 3)
5
but it will not be achieved without recognizing the prohibition of gender discrimination as a jus
cogens norm.9
1.1 Background
Human rights started as a concept between the state and its citizens, it was of the internal
jurisdiction. This started to change with abolishing slavery and piracy where treaties were used
instead.10 When the League of Nations was created after the first world war, it was decided that
“mandatory power was obliged to guarantee freedom of conscience and religion”11. These
freedoms were monitored by the League of Nations.12 The biggest transformation to human
rights came after the second World War which created an incentive to keep peace and protect
humans from their states.13 To hinder distinction between humans and labeling them as less
worth. Before the second World War rights were closely linked to the state and associated with
citizenship.14 After the war it became evident that certain rights are intrinsic to all human beings
despite their citizenship.15 The United Nations Charter (hereinafter the UN Charter) was
adopted in 1945, as a result of the creation of the United Nations, which establishes rights and
obligations of the member states. It is the constitution of the United Nations which explains its
functions and limitations.16 The UN Charter determines the sovereignty and the self-
determination of states as it aims to maintain peace and security.17 It also recognizes the respect
for human rights and fundamental freedoms as well as human dignity.18
A resolution was created in 1948, and it was adopted as the first act to introduce human rights
as an aspect to be protected.19 The resolution became the Universal Declaration of Human
Rights, which explains what rights are endowed upon humans. In the very first article of the
declaration, it is declared that “all human beings are born free and equal in rights”20. It is stated
in the preamble that all parties have agreed to promote respect for and adhere to the human
rights and fundamental freedoms.21 The Universal Declaration of Human Rights (hereinafter
the UDHR) was not to be legally binding but a guideline to rights. Despite its nature the UDHR
has influenced the creation of human rights.22
9 Wampler, Jonathan. ‘Jus Cogens and the Lack of a Universal Gender Equality Norm’, (Oxford Human Rights
Hub, 15 June 2023)
accessed 24 February 2025
10 M. N Shaw, ‘International Law’, Ninth edt. Cambridge: Cambridge University Press, 2021. P. 244
11 Ibid. P. 245
12 Ibid. p. 244–245
13 Ibid. p. 245
14 A. Henriksen, ‘International Law’, Third edt. Oxford: Oxford University Press, 2021. P. 163–164
15 Ibid. P. 163–164
16 Charter of the United Nations, San Francisco, 24 October 1945, United Nations. And Shaw (n 10), p. 1071
17 Charter of the United Nations, San Francisco, 24 October 1945, United Nations. Article 1(1) and Shaw (n 10),
p. 1070–1071
18 Charter of the United Nations, San Francisco, 24 October 1945, United Nations. Article 1(3)
19 United Nations Human Rights, ‘Universal Declaration of Human Rights’ accessed 10 February 2025. (Emphasis added)
20 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III)) (UDHR)
21 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III)) (UDHR)
Preamble para. 9.
22 Shaw (n 10), p. 254–255
6
The significance of human rights is widely accepted, however, the “precise nature and role in
international law”23 has been discussed. Discussions of what a right is has occurred where one
argument has established that rights are to be “immediately enforceable binding commitments,
others merely as specifying a possible future pattern of behavior”24. Enforcing human rights
can create issues which can impact how human rights are seen, because there are differences in
what human rights in international law is defined as.25 There are people arguing that because
of the frequency of non-compliance with human rights, this is “evidence of state practice that
argues against the structure of human rights principles in international law”26. This is not correct
because non-compliance does not lead to non-existence of human rights. Human rights are
described as closely related to ethical and moral values, which is where the first rights emanated
from. However, it is the rights that showcase “the values of a community will be those with the
most chance of successful implementation”27.28
Rights are discussed differently through perspectives and theories. According to the natural law
perspective rights are a result of a higher law than what man has created, for example the right
to life.29 It is described that “such a higher law constitutes a universal and absolute set of
principles governing all human beings in time and space”30. The advancement of rights is
because of other perspectives; however, the natural law perspective was imminent to establish
human rights as a principle in international law.31 Another perspective is the positivistic one
which has directed the power of the state and thus neglected the rights that are not within the
legal system. From a Marxist perspective, rights outside of the legal system are denied to exist.32
These theories explain how rights have been seen, however, the legal system changes and there
is never one theory that can describe the entirety. There are other evolvements that have affected
human rights such as a policy-oriented movement that highlighted eight values “respect, power,
enlightenment, well-being, health, skill, affection and rectitude”33 as well as the environmental
influences. The primary of the values is the human dignity which is to be included in all parts
of society. All these views on human rights shows how complex the notion is and how it is
influenced by the political interest in society.34
Henriksen35 describes three different categories of rights that can be identified, this is as
different generations. First generation of rights are also referred to as negative rights and are
the civil and political rights. These were established first and include rights such as the right to
23 Shaw (n 10), p. 242
24 Shaw (n 10), p. 242
25 Ibid. p. 242–243
26 Shaw (n 10), p. 243
27 Ibid. p. 243
28 Ibid. P. 243
29 Shaw (n 10), P. 242–243
30 Ibid. p. 243
31 Ibid. p. 243
32 Ibid. p. 243
33 Ibid. p. 244
34 Ibid. p. 244
35 Henriksen (n 14)
7
life and that of human dignity. Equality and non-discrimination are also accounted for in the
sense that all humans are equal which derives from negative rights. The second generation of
rights or positive rights are identified by the standard of life within economic aspects, healthcare
and employment. These are social and economic rights. Another aspect is that these rights
require action from states to ensure fulfillment. The third and last generation of rights are also
called collective rights. This derives from the protection of groups of people, for example the
prohibition of genocide. Furthermore, these rights include minorities such as indigenous
people.36
Global goals and conferences have been introduced to incline states to promote, protect and
implement rights. However, all rights are not prioritized and despite creating legal documents
these rights are neglected, women’s rights.37 The first act adopted that addresses discrimination
of women directly is the Declaration on the Elimination of Discrimination against Women from
1967, which is the predecessor of the Convention on Elimination of All Forms of
Discrimination against Women (hereinafter CEDAW). The Declaration sets out to abolish the
existing laws that are discriminatory.38 In 1979 CEDAW was adopted, thus creating a binding
set of obligations to the states that are parties.39 Between 1975–1995 the work for women’s
rights was extensive, with multiple conferences and commitments being agreed upon.40
Furthermore, four world conferences were held with the main topic women’s rights and
equality.41 There are further protection for human rights and based on gender in regional
instruments such as the African Charter on Human and Peoples’ rights, the Charter of the
Organization of American states and the European Convention on Human rights and
Fundamental Freedoms.42 Although, these instruments contain human rights based on gender
the experiences of women have not been considered.43
There are complexities in the relationship between human rights and politics, but also when it
comes to cultural aspects. It derives from rights being linked and approached from a certain
cultural or religious perspective. This has classified rights as not being universal or applicable
to different cultures. It is creating risks of states having ratified human rights treaties and being
bound by the customary law, could use differences in culture to justify their violations of human
rights.44 One can claim that there are so-called western and non-western views on human rights,
where parts of the world afford religion a higher standing than rights. The western view on
human rights moved from divinity when the view of man being created by God was challenged,
36 Henriksen (n 14), P. 166–168
37 United Nations Human Rights, ‘Women’s rights are Human Rights,’ HR/PUB/14/2. P. 1
38 United Nations Human Rights, ‘Women’s rights are Human Rights,’ HR/PUB/14/2. P. 5 and UNGA
Resolution 2263 (XXII), ‘Declaration on the Elimination on Discrimination against Women (A/6880)’, General
Assembly, 7 November 1967. Article 2
39 United Nations Human Rights, ‘Women’s rights are Human Rights,’ HR/PUB/14/2. P. 5
40 United Nations Human Rights, ‘Women’s rights are Human Rights,’ HR/PUB/14/2. P. 11–12
41 United Nations Entity for Gender Equality and the Empowerment of Women (UN Women), ‘Beijing
Declaration and Platform for Action, Beijing +5 Political Declaration and Outcomes” (2015). UN Women
Headquarters Office, 2015. P. 23–25
42 United Nations Human Rights, ‘Women’s rights are Human Rights,’ HR/PUB/14/2. P. 7–8
43 United Nations Human Rights, ‘Women’s rights are Human Rights,’ HR/PUB/14/2. P. 25
44 Shaw (n 10), p. 244
8
however, this was never challenged in the non-western view of human rights. For example,
Chakraborty explains that within Islam the law is derived from God and that includes human
rights. The author further explains that within Islam and Hinduism human rights are not based
on the individualistic approach as is in the western view, but they are based on the community.45
This creates a divergence in the universality of human rights.
There have been multiple conferences regarding women’s rights, despite these conferences
women still struggle to ensure their rights.46 Women fight for their right to express their
opinions and to make their own decisions. An example is the protests in the Islamic Republic
of Iran in 2022, “Woman, Life, Freedom”, that started because a woman refused the mandatory
hijab. She was thus detained and while in custody she passed.47 This was met with protests
where the protesters were labeled as rioters and “agents of the enemy” which created a view of
them as a threat to national security.48 Combating said security threat led to a use of force where
multiple individuals were harmed and died. There were reports of lethal force used against
protesters despite no imminent threat being posed.49 The government handled the situation by
detaining, raiding of the individuals’ homes as well as during memorials. Other uses of force
have also been reported such as gender-based violence and violent acts against women.
Children were also detained and put in detention centers.50 When detained individuals suffered
torture and inhumane conditions. As well as deaths in custody because of torture.51 Protesters
were prosecuted and further convicted for committing crimes, despite participating in peaceful
protests. Convictions lacked impartiality, and the trials were held behind closed doors. Multiple
individuals were sentenced to death for their participation in the protests, where at least five
women could receive the death penalty.52 Furthermore, stricter policies and rules were passed
about the mandatory hijab. A new task force was installed to control the following of the rules.
However, the rules have not just affected the ones protesting but also the ones supporting the
protesters.53
Another example is the significantly diminishing of women’s rights in Afghanistan after the
Taliban regained power and the US military left in 2021. Laws has since been passed to restrict
females from education, being able to drive as well as being able to leave the house without
male supervision.54 Therefore, certain countries have announced that they are to bring
Afghanistan before the International Court of Justice (hereinafter ICJ) pending the gender
45 Chakraborty, Gangotri, ‘The Myth and Reality of ‘Universality’ in Universal Human Rights’ (2008) 1 GNLU
L Rev 42. P. 43–44
46 United Nations Human Rights, ‘Women’s rights are Human Rights,’ HR/PUB/14/2. P. 11–12 and United
Nations Women, “Progress of the world’s women”, accessed 21 February 2025
47 UNGA, Human Rights Council. ‘Report of the independent international fact-finding mission on the Islamic
Republic of Iran*’. UN Doc. A/HRC/55/67, 2 February 2024. P. 3–4
48 Ibid. P. 4, para. 21
49 Ibid. P. 4–6, para. 22–32
50 Ibid. P. 6–7, para. 33–41
51 Ibid. P. 7–8, para. 42–45
52 Ibid. P. 8–9, para. 52–64
53 Ibid. p. 11
54 A. A. Shriati, ‘Gender Persecution and Gender Apartheid in Afghanistan: Seeking the Appropriate Legal Basis
for International Accountability’ EJIL: Talk! Blog of the European Journal of International Law, 10 April 2024.
9
discrimination and apartheid. However, this has never been done before and there is an issue of
who they would be prosecuting. The latter is a dilemma because the Taliban have not been
recognized as leaders of Afghanistan and can thus not be prosecuted as such. It is the first time
a country has brought a case based on the CEDAW before the court.55
The protests in the Islamic Republic of Iran and the repression of women in Afghanistan both
show the decrease in protection of women’s rights, where both situations show violations of
these rights. They are to be protected through for example the prohibition of discrimination
against women, which is prohibited within CEDAW. Despite the convention entailing
protection the countries mentioned above continue to discriminate against women. This is an
interesting subject and where this thesis is deriving from, can non-discrimination of women
attain status as a peremptory norm of general international law also known as jus cogens.
1.2 Aim
The aim of this thesis is to investigate the approach to women’s rights in international law and
to consider if it could become a jus cogens-norm. It is specifically if the aspect of discrimination
based on gender can achieve such a status. To consider the issues of implementation that involve
women’s rights, and to consider the work of prohibition of gender discrimination.
It is interesting how women continue to be of lower priority within human rights, where their
rights are abolished and how decisions about women are made without them. This is important
to shed light on thus making the experiences of women a priority. Therefore, creating a
significant need for a higher protection of women and their rights, which could be done through
making the prohibition of gender discrimination a jus cogens norm.
Research questions
- To what extent does the Convention on the Elimination of All Forms of Discrimination
against Women (CEDAW) get implemented in international law?
- How could the prohibition of discrimination of women achieve status as a jus cogens
norm?
- What effect would implementation of prohibition of discrimination of women as jus
cogens have?
1.3 Limitations
It is going to be limited to gender discrimination and the implementation of CEDAW.
Furthermore, an integral part of the study is about CEDAW and its status within international
law. It has been limited to this convention because of its properties of non-discrimination.
Another focus that has led to limitations is on European law because the thesis will be too broad
if sources such as Intra-American law is considered as well.
55 K. Wigard, ‘A Groundbreaking Move: Challenging Gender Persecution in Afghanistan at the ICJ’ EJIL: Talk!
Blog of the European Journal of International Law, 30 September 2024.
10
The thesis has further been limited to the aspects of non-discrimination of gender. This is
because it would be too broad to investigate more than the aspect of gender. There is going to
be references to racial discrimination as well as other aspects that are brought forth in relation
to women and the importance of this relation. This is the focus because women’s rights are too
broad of a subject to investigate as well as being too unspecified. This also gives a narrower
scope for what can be classified as a peremptory norm of general international law or jus
cogens. The girl child has been brought forth in certain situations for when it has been important
to note but is not the main point for investigation because it would be necessary to broaden the
scope to make it possible.
1.4 Method and theory
The method of this project is going to be Legal Dogmatic method which includes a breakdown
of the recognized legal sources. It is to express what the legal sources entail.56 In this thesis the
sources that have been investigated are treaties, conventions, and reports from the United
Nations. This is to examine the status of CEDAW within International law and how it works in
relation with treaties. Reports and other treaties are going to bring up different angles of how
discrimination is handled by the UN and what is currently happening within the matter. It is
going to be related to case-law within both the ICJ and European courts. The research will
consist of previous material in the shape of both articles and literature written within this
subject.
There will also be an element of comparison, which means a comparative method is used. The
comparative method is applied to make comparisons between different legal systems, which is
done to better understand the aspects of the systems. It is utilized to understand the cultural
differences. 57 This to compare the difference in gender equality between Europe and
Afghanistan as well as Islamic Republic of Iran. It is to see how the aspects of equality and
usage of CEDAW differs.
The theory applied in this thesis is a critical legal theory also called the critical legal studies as
the research is based on the concepts of law and how that relates to society. Furthermore, the
thesis explains the aspects of how human rights are not neutral. This is especially in accordance
with the notion that all humans are treated equally.58 The critical legal studies introduce a
critical perspective on modern society through four ideas, first, that law is a system, which gives
the answers to questions of social behavior. Secondly, a form of reasoning where the answers
are found in the doctrine. Thirdly, actions in society are a result of norms, which is an effect of
either incorporating the norms or pressure to act a certain way. Fourth, the doctrine shows how
56 J. Kleineman, ‘Rättsdogmatisk metod’ in Juridisk Metodlära, eds. Maria Nääv and Mauro Zamboni, second
edt. Lund: Studentlitteratur, 2018. P. 21
57 F. Valguarnea, ’Komparativ juridisk metod’ in Juridisk Metodlära, eds. Maria Nääv and Mauro Zamboni,
second edt. Lund: Studentlitteratur, 2018. P. 145
58 R. Wacks, ‘Understanding Jurisprudence An Introduction to legal theory’ Fifth edt., Oxford: Oxford
University Press, 2017. P. 341
11
the relation between person and society is a coherent view.59 Throughout the thesis it is
explained that the relationship between men and women as well as for women’s rights is not
neutral. It is further, shown how the law describes the society that it is existing within. It is
explained how the law is affected by views and gender biases that can be seen within society.
The use of the Legal Dogmatic method has been central in this thesis because it is what creates
the possibility to analyze the legal sources and describe what they entail. This has been of
importance to explain CEDAW and how the legal landscape is constructed. The comparative
method has been of importance to make the comparisons of judgements from the courts in the
EU and how women’s rights are applied in the Islamic Republic of Iran as well as Afghanistan.
Lastly, it has been of importance to see how rights are viewed differently. The methods have
been what best applies to answering the aim and research questions of the thesis. Critical Legal
Studies have been central to create the understanding of how a bias regarding gender affects
the law and how it is seen in society.
1.5 Disposition
The thesis is divided into four different chapters, each highlighting different important aspects.
First, there is an introduction to the subject, including a background of both human and
women’s rights as well as the aim of the thesis. Further, including methodology and limitations
that have been made to restrict the size of the research. The second chapter starts with an
explanation of the status of international law, nature of jus cogens and prohibition of
discrimination. Including a description of the relationship between religion and discrimination.
The third chapter is an explanation of the legal sources explicit for the aspects of discrimination
against women, CEDAW, Istanbul Convention and the Beijing declaration and Platform for
Action. Finally, chapter four, an analysis including a summary of the results and a discussion.
The last aspect presented is the final reflection and suggestion of further research.
59 Wacks (n 58), p. 343–344
12
2. Current state of international law
The current state of international law in both peremptory norms of general international law
and the prohibition of discrimination is described below. This to understand what the concepts
involve and the legal aspects of them. It is also described how discrimination and religion are
of importance within women’s rights, thus explaining the state of women’s rights.
International law is different than domestic legal structures because the latter ones are built on
hierarchy and having authority, which creates a vertical system. The international system is
built on a community of states where the system is horizontal, meaning all states are equal
without one state having authority over another. The states create the law and follow it. It is
thus built upon agreements between states that are binding to the signatories as well as
customary law which is state practice that has been recognized as rules to be followed.60
Although, international conventions are built upon recognition and agreement it is important to
note how states have their own interests. This might lead to states using a violation of a rule of
international law to protect their interests, which the state sees as its only option.61 However,
“the raison d’être of international law and the determining factor in its composition remains the
needs and characteristics of the international political system.”62.
Human rights are no longer viewed as a different aspect of general international law it has
become “a philosophy of ‘human rightism’ that has increasingly taken over general
international law”63. It is seen as an aspect that is a part of all international law instead of being
a separate part of the system. This has further been discussed in the aspects of how “general
international law as “sources” of human rights obligations”64. Therefore, human rights can be
seen as aspects that are connected to the general rules of international law.65
Another difference is defining the sources, because within domestic law there is a legislator
that is the source of what the law is. In some countries law is also derived judicial decisions
that has created a custom of what law is. However, there is no specific legislator or judiciary
that has established the sources of law within international law. It is based on unilateral or
bilateral conventions that states have decided together are binding. This is also the case for the
ICJ and its jurisdiction, which is based on consent.66 Another important aspect is the difference
in material and formal sources of law. The material aspect is where the rule is to be found. The
formal aspect is the “legal element that gives to the rule its quality as law”67. It has been
discussed that the latter is to be explained as legal credibility.68 There are some sources that are
recognized as the main ones within international law. These are included in the Statute of the
60 Shaw (n 10), p. 5
61 Ibid. p. 7
62 Ibid. p. 37
63 H. Thirlway, ‘The Sources of International Law,’ Second edt. Oxford: Oxford University Press, 2019. P. 197
64 Ibid. P. 198
65 Ibid. P. 198
66 H. Thirlway, ‘The Sources of International Law,’ Second edt. Oxford: Oxford University Press, 2019. P. 1–3
67 Ibid. p. 6
68 Ibid. p. 6
13
International Court of Justice69 in article 38. It is stated that the formal sources are international
conventions, international custom, general principles of law, and judicial decisions.70
2.1 The nature of jus cogens
The first source within article 3871, is conventions which are based on consent from the agreeing
states. It is based on the principle of pacta sunt servanda which establish that agreements are to
be kept and indicates States relying on that premise. Despite the treaty or convention being
demanding it is still binding.72 A convention or treaty is the usual trajectory to binding
agreements and rules between states, and the binding effect emanates from the principle of
pacta sunt servanda.73 The sources within article 38 not exclusive since certain norms that are
not accounted for.74 Among these are the peremptory norms of general international law (jus
cogens). 75 It has also been explained that jus cogens is “a manifestation of the fundamental
values of the international community”76 which implies that the values are independent of the
will of States. This could be the reason it is not included in article 38.77
2.1.1 General aspects of jus cogens
As explained above international law is built upon agreements between states. This is what
some may call the positive international law. Another aspect that is important to explain is jus
dispositivum, which is a different element of positive law. Jus dispositivum is the law that is
changeable and can thus be discarded when two states come to an agreement.78 It is also
important to note with jus dispositivum that states are free to come to agreements with a state
of their choosing, this in turn leads to only the states in agreement are bound to it.79 This is
important to note because it distinguishes jus cogens from other aspects of international law.80
In the Vienna Convention of the Law of Treaties (hereinafter the Vienna Convention)81 in article
53 it is established that if a treaty conflicts with a peremptory norm of general international law
(jus cogens) it is to be void. It is further explained that the norms are to be non-derogative and
can only be changed by a norm of similar quality.82 If a treaty is created that contradicts jus
69 The Statute of the International Court of Justice, San Francisco, 24 October 1945, United Nations.
70 The Statute of the International Court of Justice, San Francisco, 24 October 1945, United Nations. Article
38(1) and Thirlway (n 63), p.8–9
71 The Statute of the International Court of Justice, San Francisco, 24 October 1945, United Nations. Article
38(1)
72 Thirlway (n 63), p. 37
73 Thirlway (n 63), p. 37–38
74 The Statute of the International Court of Justice, San Francisco, 24 October 1945, United Nations. Article
38(1) and Thirlway (n 63), p. 176–177
75 Thirlway (n 63), p. 176–177
76 Ibid. p. 165
77 Ibid. p. 165
78 Ibid. p. 163
79 Ibid. p. 164
80 Ibid. p. 42
81 The Vienna Convention of the Law of the Treaties (adopted 23 May 1969, entered into force 27 January 1980)
1155 UNTS 331
82 Vienna Convention, Article 53
14
cogens then it is void because of the peremptory character of jus cogens, as stated in article 64
of the Vienna Convention.83 Consequences of actions done in spite of jus cogens are also
described but within article 71 of the Vienna Convention, and are to prohibit the usage of such
provisions as well as align the relations with jus cogens. Once the treaty becomes void the
parties are no longer bound to the obligations of said treaty.84 These articles explain what
happens if a treaty conflicts with a peremptory norm, but it is not explained what constitutes a
peremptory norm of general international law. This is going to be explained below.
There are various opinions of what jus cogens entails, firstly it has been explained as an
autonomous source of law that is above all other law. Secondly it has been discussed if jus
cogens is to limit what may be lawfully agreed by states, which leads to difficulties since it is
independent of what is agreed by states. Peremptory norms do no matter how it is defined,
create a hierarchy of norms since jus cogens can lead to a treaty becoming void.85
The hierarchy within international law is controversial, because usually the later rules have
priority, which comes from the later replacing the former.86 This is not the case if there is lex
specialis involved because that has priority to a general rule. It is complicated by norms having
a higher status than other norms, jus cogens.87 The aspects of jus cogens are derived from
customary rules that have gained the standing of jus cogens.88 It is mainly because the Vienna
Convention is binding on all states that are parties to the Convention, however, it has become
recognized as a rule that is generally binding. This comes from the rules being comparable to
customary or general international law.89
The discussion of how a norm becomes jus cogens is extensive and not completely conclusive.
There are arguments explaining that jus cogens is an autonomous part of rules and thus not part
of any other source of international law.90 It would entail problems of how the court has applied
the norms of jus cogens, without specifying how it has come about. Jus cogens does imply a
hierarchy of norms since it can make treaty provisions void if they are contested. Therefore, it
could be argued that the norms of this status are of higher level than other norms.91 Another
argument is that jus cogens derives from customary rules and in this that it contains the
psychological elements of opinio juris.92 If this was the case it is explained that there would
have to be an element of norms over-riding agreements, which would lead to jus cogens.93 It
has also been argued that the jus cogens norms become such only by being accepted and
recognized by the international community, as formulated in the Vienna Convention article 53.
This is an argument that has been widely discussed. Although, there is support behind it there
83 Vienna Convention, Article 64
84 Vienna Convention, Article 71(1)
85 Thirlway (n 63), p. 177
86 Shaw (n 10), p. 105
87 Ibid. p. 105
88 Ibid. p. 104-109
89 Thirlway (n 63), p. 163
90 Ibid. p.177
91 Ibid. p. 177
92 Ibid. p. 178
93 Ibid. p.178
15
is concern about the criteria of recognizing it as jus cogens since it is different than customary
rules.94
It has further been argued that jus cogens derives from norms of customary international law.95
In line with the relationship between these parameters needs to be explained. Customary law
can be explained as norms that have developed from social pressures, behavior, and practice to
form norms that derive from states. Two aspects have been highlighted as forming customary
law, where the first is the state’s behavior, and the second is the psychological and subjective
belief that the state’s behavior constitutes law.96 The first aspect is self-explanatory, but the
second aspect is important to explain as it is also linked to opinio juris. The psychological part
is necessary, because states could otherwise act how they want and deriving it from customary
law. Opinio juris leads the behavior of customary law to comprise of behaving as if there is a
legal obligation to behave in that sense.97 The ICJ explains this in the North Sea Continental
Shelf that “the need for such a belief [and that there is] a subjective element, is implicit to the
notion of opinio juris sive necessitates”98. In accordance with this the psychological aspect is
important within customary international law.99 Opinio juris is the psychological part of
customary law as stated above, and it entails the conviction that the behavior is constituting
law.100
2.1.2 Case-law showing peremptory norms
The ICJ has through its decisions shown a two-step approach to how to identify jus cogens,
which has been applied in some cases but not all.101 The two-step approach has, however, been
explained as a method of identifying jus cogens in other sources. This approach is what follows
here, the first step in this process is that the rule is established for a proposition of general
international law. This follows with the international law community accepting the rule as a
preemptory rule, which needs to be done in consensus of all states and thus universally.102
These steps can be seen in the Vienna Convention article 53, which mentions both steps.103
Another aspect that is needed for a norm to become jus cogens is that it does not conflict with
already existing standards. Despite the concept of jus cogens being fairly known it is difficult
to decide exactly how it comes into existence. This is because it can arise from or evolve from
94 Thirlway (n 63), p. 179
95 UNGA A/CN.4/706, ‘Second report on jus cogens by Dire Tladi, Special Rapporteur’, UN Doc. A/CN.4/706,
16 March 2017. P. 21–22. Para. 43–44
96 Shaw (n 10), p. 61–62
97 Shaw (n 10), p. 63
98 North Sea Continental Shelf, Judgement, I.C.J. Reports 1969, p. 3. p. 44 para. 77
99 Shaw (n 10), p. 63
100 Shaw (n 10), p.73
101 H. Deng, ‘Reflections on the Identification of Jus Cogens by the ICJ Advisory Opinion on the Legality of
Israel’s Occupation of Palestinian Territory: Taking into Account the ILC Draft Conclusions on Jus Cogens,’
EJIL: Talk! Blog of the European Journal of International Law, 27 August 2024.
102 Shaw (n 10), p. 107
103 Vienna Convention (n 81), article 53
16
customary international law.104 As mentioned in the beginning of this paragraph the court has
not been clear about their approach.105
In a separate opinion to the case of Armed Activities on the Territory of the Congo Judge ad hoc
Dugard explains that a decision of judicial character can be divided in two separate divisions.
One where the decision is guided by a principle, Dugard describes this as based on a premise
of a rule. The second one is described as it being guided by policies, where the premise is based
on a goal. Furthermore, Dugard explains that norms of jus cogens in accordance with his view
is a blend of the decision making guided by principles and policies. Dugard writes
“they affirm the high principles of international law, which recognizes the most important
rights of the international legal order […], give legal form to the most fundamental policies
or goals of the international community”106
He establishes the basis for the superior hierarchy that norms of jus cogens are held to. It is
explained that this is why norms of jus cogens entail an important position within decisions.107
In the case North Sea Continental Shelf, the court explains that rules of international law can
be derogated from, but this is not the case when it comes to jus cogens. The argument is about
a principle that is not yet general international law, which is described as an important aspect
of a rule becoming jus cogens.108 Another approach that the court has had is that norms of
customary international law become jus cogens.109 An example of jus cogens as a norm is in
the case of Obligation to Prosecute or Extradite where it is explained that the Court sees torture
as a part of customary international law as well as a jus cogens norm. It started out as solely a
customary rule but has since gained status as a jus cogens norm. The court explains that since
torture has been ratified and included within multiple different conventions as well as based on
the opinio juris leads to it becoming a jus cogens norm.110 This could be related to the fact that
the opinio in this case has led torture to become a jus cogens norm.111 It is explained in the case
Jurisdictional Immunities of the State that there is a question between norms of jus cogens and
104 Thirlway (n 63), p. 179
105 Deng (n 101)
106 Separate Opinion of Judge ad hoc Dugard in Armed Activities on the Territory of the Congo (New
Application: 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment,
I.C.J. Reports 2006, p. 6. para. 10
107 Separate Opinion of Judge ad hoc Dugard in Armed Activities on the Territory of the Congo (New
Application: 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment,
I.C.J. Reports 2006, p. 6. para. 10
108 North Sea Continental Shelf, Judgement, I.C.J. Reports 1969, p. 3. p. 42 para. 72, and UNGA A/CN.4/706,
‘Second report on jus cogens by Dire Tladi, Special Rapporteur’, UN Doc. A/CN.4/706, 16 March 2017. P. 21,
para. 42.
109 UNGA A/CN.4/706, ‘Second report on jus cogens by Dire Tladi, Special Rapporteur’, UN Doc. A/CN.4/706,
16 March 2017. P. 22, para. 43.
110 Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J. Reports
2012, p. 422. Para. 99
111 Thirlway (n 63), p.180
17
customary international law, which is established to not be of importance. A jus cogens norm
is a jus cogens norm.112
The other aspect of jus cogens is the part of recognized and accepted by the International
Community as a whole, as described in article 53 Vienna Convention.113 The Advisory Opinion
of Reservations to Genocide Convention explains that the objects to the Genocide Convention
is of great importance. This is because it was created to protect groups of humanity and to
establish the principles of morality.114 It is further explained that the purpose of the Genocide
Convention is a common interest for all states, and it is not to consider advantages or
disadvantages of the states. Therefore, as the intention with the Genocide Convention it is
universal in its extent.115 It is stated in the Reservations to Genocide Convention that genocide
is “recognized by civilized nations on binding on states, even without conventional
obligation.”116 This in turn emphasizes the aspects of accepted and recognized.117 Another
example of the recognition and acceptance of a norm as jus cogens is that it has been added into
domestic legislation. This is exemplified in Obligation to Prosecute of Extradite, where the
court explains this as well as mentioning the opinio juris playing a part in acknowledging the
norm as being jus cogens.118
This can further be seen in the case Armed Activities on the Territory of the Congo, where the
court once again establishes that acceptance and recognition of a norm as jus cogens is
essential.119 The case goes on to lift the problematics of reservations in accordance with
peremptory norms of general international law, which the court explains that reservations are
not prohibited when it entails jus cogens norms. This is as long as it is not contesting with the
jus cogens norm. It is explained that a reservation to a convention such as the Genocide
Convention does not entail jurisdiction for the court.120 This is also established, where the court
describes the consent of the states as an important aspect. Therefore, despite the involvement
of peremptory norms it might not entail jurisdiction.121
In the separate opinion of Judge Ad hoc Dugard in the Armed Activities on the Territory of the
Congo case it is explained that the court used the measures within their jurisdiction to establish
112 Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgement, I.C.J. Reports
2012, p. 99. p. 140, para. 93, and Thirlway (n 63), p. 180–181.
113 Vienna Convention (n 81), article 53
114 Reservations to the Convention on Genocide, Advisory Opinion: I.C.J. Reports 1951, p. 15. P. 23
115 Reservations to the Convention on Genocide, Advisory Opinion: I.C.J. Reports 1951, p. 15. P. 23
116 Reservations to the Convention on Genocide, Advisory Opinion: I.C.J. Reports 1951, p. 15. P. 23
117 Ibid. p. 23.
118 Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J. Reports
2012, p. 422. Para. 99
119 Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo
v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2006, p. 6. P. 32, para. 64
120 Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo
v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2006, p. 6. P.32–33, para. 65–70. And
Convention on Prevention and Punishment of the crime of Genocide (adopted 9 December 1948, entered into
force 12 January 1951) 78 UNTS 277.
121 Ibid. p. 51, para. 125
18
that the consent of the court is of utmost importance. This in turn is why the court decided to
explain that a peremptory norm cannot surpass the jurisdiction of the court.122
A different concept that is important to discuss and explain in relation to jus cogens is
obligations erga omnes. The relation between the two different concepts is closely connected,
which depends mostly on erga omnes having procedural aspect. This while jus cogens are rules
of substantive character that have a higher standing.123 Obligations erga omnes are
responsibilities that are bestowed upon all states to protect all states. Within the Barcelona
Traction case the court explains what erga omnes entails and that there are two parts to the
concept. There are obligations that are from state to state and there are ones that are owed to
the international community. The latter ones are of interest for every state, both in protecting
and following them, these are considered obligations erga omnes.124 This can further be seen in
the Advisory Opinion of Construction of a Wall where Israel has violated obligations that are
erga omnes. In this case it is the respect of the right to self-determination which is of importance
for every state and the legal interest in their protection.125
Application of the Convention on the Prevention and Punishment of the Crime of Genocide
from 1996 discusses the aspects of objecting to the Convention and not preventing a genocide.
In the case Bosnia and Herzegovina objects to the actions or the inactions of Yugoslavia, which
argues that they did not have territorial control over the area in which the crimes were
committed. 126 The court explains that the obligations set out in the Convention cannot be
ignored based on territorial limitations since they are obligations erga omnes.127
2.1.3 Investigative reports on jus cogens
In 2016 a special rapporteur, Dire Tladi, was appointed to investigate jus cogens with the object
of creating a wider understanding of the concept. The different reports all show different aspects
of the concept of jus cogens.128 The second report explains the criteria for jus cogens, and it
explains that there have been discussions among state parties of what jus cogens entail.129 It is
established through the report that the criteria are the norm reflecting a rule of general
international law that can reach the status as well as being recognized and accepted by the
122 Separate Opinion of Judge ad hoc Dugard in Armed Activities on the Territory of the Congo (New
Application: 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment,
I.C.J. Reports 2006, p. 6. para. 3
123 Shaw (n 10), p. 105
124 Barcelona Traction, Light and Power Company, Limited, Judgement, I.C.J. Reports 197, p. 3. P. 32, para. 33–
34
125 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
I.C.J. Reports 2004, p. 136. P. 199, para. 155.
126 Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary
Objections, Judgment, I. C. J. Reports 1996, p. 595. P. 615
127 Ibid. P. 616
128 UNGA A/CN.4/693, ‘First report on jus cogens by Dire Tladi, Special Rapporteur’, UN Doc. A/CN.4/693, 8
March 2016. P. 3, para. 1–5.
129 UNGA A/CN.4/706, ‘Second report on jus cogens by Dire Tladi, Special Rapporteur’, UN Doc. A/CN.4/706,
16 March 2017. P. 3, para. 3. P. 5, para. 7
19
community of states as a whole.130 In the third report the legal consequences of peremptory
norms (jus cogens) are discussed.131 It is described as the main consequence of a norm gaining
status as jus cogens is the invalidity of treaties that follows, which in turn undermines the
principle of pacta sunt servanda.132 The report explains that a treaty is in
“conflict with a norm of jus cogens if it purported to contract out of obligations imposed by
jus cogens or where purports to permit (or require) conduct contrary to a norm of jus
cogens”133.
Therefore, the treaty as is explained will be invalid if it is inconsistent with jus cogens.134 Other
aspects that are discussed with the invalidity of a treaty is the procedure, the effects on treaty
interpretation and the effects on reservations to treaties. The first part is explained to be brought
before the ICJ if a dispute occurs.135 The second one is described as that a strong interpretation
is to be applied in relation to jus cogens norms as well as interpreting the treaties in a sense that
results in conformity to jus cogens as far as possible.136 The last part describes that a reservation
that is inconsistent with jus cogens is not in effect, however, this does not include the
applicability of the treaty.137 The other consequences mentioned is relating to state
responsibility and other effects such as criminal responsibility.138
The Fourth Report on Peremptory norms, describes the discussion of including an illustrative
list of what is considered jus cogens norms within the draft conclusions.139 It also discusses the
aspects of regional jus cogens, but this was seen as contradictory of what jus cogens entail.140
The illustrative list was also heavily discussed but it was conducted on the basis that it would
include what has gained status as jus cogens.141 The report then proceeds to explain examples
of rules that have been recognized to have achieved status as jus cogens by the International
Law Commission. This is based within the criteria of the rules being norms of general
international law and having attained acceptance and recognition. The norms expressed by the
report are as follows; the prohibition of aggression or aggressive force, the prohibition of
genocide, the prohibition of slavery, prohibition of apartheid and racial discrimination,
prohibition of crimes against humanity, prohibition of torture, the right to self-determination,
and lastly the basic rules of international humanitarian law.142 There are other norms that could
130 Second Report (n 129), P. 31 and 45, para. 59 and 89.
131 UNGA A/CN.4/714, ‘Third report on peremptory norms of general international law (jus cogens) by Dire
Tladi, Special Rapporteur’, UN Doc. A/CN.4/714, 12 February 2018. P. 2, para. 2–3
132 Third Report (n 131), P. 11–14, para. 30–32
133 Ibid. P. 15, para. 35
134 Third Report (n 131), p. 18, para. 43
135 Ibid. p. 22, para. 54
136 Third Report (n 131), p. 27, para. 67–68
137 Ibid. p. 29, para. 75
138 Third Report (n 131), p. 29 and 43, para. 77ff and 113
139 UNGA A/CN.4/727, ‘Forth report on peremptory norms of general international law (jus cogens) by Dire
Tladi, Special Rapporteur’, UN Doc. A/CN.4/727, 31 January 2019.
140 Ibid. p. 21, para. 46–47
141 Ibid. p. 21–23, para. 48–54
142 UNGA A/CN.4/727, ‘Forth report on peremptory norms of general international law (jus cogens) by Dire
Tladi, Special Rapporteur’, UN Doc. A/CN.4/727, 31 January 2019. P. 24–26, para. 56 and 60–61
20
possibly be identified as jus cogens but have not gained such status. It is explained that the list
above is norms that have previously been mentioned as jus cogens and that other norms have
not yet gained the acceptance or recognition to gain such status.143 These norms are; prohibition
of enforced disappearance, the right to life, the principle of non-refoulment, the prohibition of
human trafficking, the right to due process, the prohibition of discrimination, environmental
rights, and finally the prohibition of terrorism.144 The Fourth report concludes with an
illustrative list that is non-exhaustive, thus can be expanded.145
The fifth and last report includes the draft conclusions and the proposed changes to each
conclusion.146 States have expressed concern about state-practice in relation to jus cogens and
that the conclusions rely on doctrine.147 Another aspect that was discussed is the status of said
conclusions, where states where concerned that it entailed legal obligations and not guidelines
and others did not express concern of the status. It is explained that the conclusions are not
binding, excluding a few, and they are intended to guide the identification of jus cogens
norms.148 The report includes the draft conclusions that have been adjusted in accordance with
the states concern.149 It is recognized in the report that the non-exhaustive list of norms that is
included in the list has been moved to an annex to signal that it is non-exhaustive. Another
aspect mentioned in relation to the list is that it is of norms that the Commission has identified
as jus cogens norms.150
In the concluding report of the International Law Commission (hereinafter the ILC) it is
explained that the draft conclusions do not work as a thorough list of what is jus cogens. It is
explained that the formulations are what has been recognized as peremptory norms by the ILC
previously and it has not been rewritten. There are commentaries in relation to the norms that
are included in the list which are the ones explained above. However, it is mentioned in
accordance with the prohibition of racial discrimination and apartheid that the aspect of racial
discrimination is not mentioned in previous reports. The norm previously recognized a jus
cogens is the prohibition of apartheid.151 The crimes that have been recognized as jus cogens in
legal literature before are the norms: “aggression, genocide, crimes against humanity, war
crimes, piracy, slavery and slave-related practices and torture”152. The crime of apartheid is a
crime against humanity, which indicates that it is recognized as a jus cogens norm.153 Despite
the prohibition of racial discrimination being discussed as jus cogens it has not achieved such
143 Forth Report (n 139), p. 54–55, para. 122
144 Forth Report (n 139), p. 55, para.123
145 Ibid. p. 63, para. 137–138
146 UNGA A/CN.4/747, ‘Fifth report on peremptory norms of general international law (jus cogens) by Dire
Tladi, Special Rapporteur’, UN Doc. A/CN.4/747, 24 January 2022. P. 5–6, para. 5–6.
147 Ibid. p. 8–9, para. 14–15 and 18
148 Fifth Report (n 146), p. 12–13, para. 26–29
149 Ibid. p. 77–83
150 Fifth Report (n 146), p. 66–67, para. 215–217
151 UNGA A/74/10, ‘Report of the International Law Commission’, UN Doc. A/74/10, Seventy-first session 29
April–7 June and 8 July–9 August 2019, p. 203–207, para. 1–3 and 9
152 M. Cherif Bassiouni, ‘International Crimes: Jus Cogens and Obligato Erga Omnes’ (1996) 59 Law and
Contemporary Problems 63. P. 68
153 Rome Statute of the International Criminal Court, Rome, 1 July 2002, United Nations. Article 7:1 (j)
21
a status. However, the prohibition of apartheid has been recognized as a peremptory norm.154
Apartheid is recognized as a crime against humanity, which has achieved status as a jus cogens
leading to apartheid being recognized as such.155 The definition of apartheid is racial
segregation and discrimination, with the purpose of establishing the domination of a specific
race by systematically oppressing them. This is the definition as explained in the International
Convention on the Suppression and Punishment of the Crime of Apartheid. 156
2.1.4 Summary
To summarize peremptory norms of public international law also known as jus cogens are
determined by two aspects, which has been discussed above. That it is a norm of general
international law and a norm that is recognized and accepted by the international community.
Furthermore, jus cogens is norms that are not to be derogated from as well as being of a higher
status than norms of jus dispositivum. Within these defining aspects there are certain norms
that have gained this status, which can be seen above. It has been established through case-law,
reports and investigations that the criteria necessary for a norm to become jus cogens it needs
to be a norm of international law; it needs to be recognized and accepted to have the status of
jus cogens which means it cannot be derogated from. There are norms that fulfill the first criteria
to become jus cogens but is not recognized or accepted. This results in the norm not having the
status as jus cogens and can thus be derogated from.
2.2 Prohibition of discrimination
The prohibition of discrimination has been discussed in relation to peremptory norms of general
international law.157 The international community has through multiple conventions as
described below agreed on prohibiting discrimination. Despite it being discussed that both
apartheid and racial discrimination are to be considered jus cogens norm, it is solely the aspect
of apartheid that has gained such a status. The aspects are often put together because there is no
apartheid without systematic racial discrimination. Furthermore, because racial discrimination
is an integral part of apartheid the two are often used together, the prohibition of racial
discrimination is therefore, going to be used in relation to the prohibition of gender
discrimination.158
154 Forth Report (n 139), p. 44–45, para. 96–100
155 UNGA A/74/10, ‘Report of the International Law Commission’, UN Doc. A/74/10, Seventy-first session 29
April–7 June and 8 July–9 August 2019, p. 203–207, para. 1–3 and 9 and International Convention on the
Suppression and Punishment of the Crime of Apartheid (adopted 30 November 1973, entered into force 18 July
1976) 1015 UNTS 243. Preamble para. 6
156 International Convention on the Suppression and Punishment of the Crime of Apartheid (adopted 30
November 1973, entered into force 18 July 1976) 1015 UNTS 243. Article 2:1
157 Forth Report (n 139), p. 55, para.123
158 Forth Report (n 139), p. 42, para. 91, and p. 60–61, para.135, Report of International Law Commission (n
145), p. 203–207, and International Convention on the Suppression and Punishment of the Crime of Apartheid
(adopted 30 November 1973, entered into force 18 July 1976) 1015 UNTS 243. Article 2
22
2.2.1 Legal aspects of the prohibition of discrimination
Human rights are infused with the notion of equality and human dignity, but this is not always
the case. People are sometimes treated differently, which depending on the nature of the
treatment can constitute as discrimination.159 To be treated differently is nothing anybody wants
to experience, which is why there have been an addition to international law to make sure this
does not happen.160 It was added into the UN Charter article one that respect is to be shown to
humans without distinction of race, sex, language, or religion.161 Article 55 of the UN Charter
explains that peaceful and friendly relations are based on the respect for equal rights and self-
determination. It establishes that “universal respect for human rights and fundamental freedoms
for all without distinction as to race, sex, language, or religion”162. This is to be achieved by
member states of the UN and it is to be done together and separately.163 Despite it being defined
in the UN Charter there has since been conventions created that further defines discrimination
and the prohibition thereof.164 There is the International Convention on the Elimination of All
Forms of Racial Discrimination, Universal Declaration of Human Rights, the International
Covenant on Civil and Political Rights, the International Covenant on Economic, Social and
Cultural Rights, as well as CEDAW.165 The provisions within each convention is brought forth
below.
The Universal Declaration of Human Rights is the first legal document that catalogues human
rights, and it describes that all humans are born equal and with dignity within the first article.166
Its further states within the second article that it is to be done without distinction of race, sex,
language, or religion. This has been passed on to multiple different legal documents adopted
after the Universal Declaration.167 It goes on to list other rights that are important, but in this
work the second article is the most important.168 In the Declaration it is also established that
people are equal and are to be protected from discrimination, thus demonstrating a prohibition
of discrimination.169
In the International Covenant on Civil and Political Rights it is established in article 2 that
every state that has committed to the covenant is to ensure the rights established without
distinction to any kind.170 Article 26 of the Covenant establishes that all persons are to be treated
equally, which further explains that there should be a prohibition of discrimination derived and
159 N. Rodley, “International Human Rights Law,” in International Law, eds. Malcolm D. Evans, fifth edition,
(Glasgow: Oxford University Press, 2018), p. 792
160 Ibid. p. 792
161 Charter of the United Nations, San Francisco, 24 October 1945, United Nations. Article 1:3
162 Charter of the United Nations, Article 55 (c)
163 Charter of the United Nations, Article 56
164 Charter of the United Nations, and Shaw (n 10), p. 254–256
165 Shaw (n 10), p. 255-257
166 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III)) (UDHR) Article
1
167 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III)) (UDHR) Article
2
168 Universal Declaration of Human Rights 1948 (n 166) Article 2
169 Universal Declaration of Human Rights 1948 (n 166) Article 7
170 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March
1976) 999 UNTS 171 (ICCPR) Article 2(1)
23
protected within the law. This also explains that people are to be guaranteed protection against
discrimination.171
In the International Covenant on Economic, Social and Cultural Rights it can be found in
the second article, where it is described that the rights are to be guaranteed without
discrimination.172 It is also expressed that the rights within the Covenant are to be enjoyed
equally between men and women.173
The international Convention on the Elimination of All Forms of Racial Discrimination
(hereinafter CERD) is a convention that through signing and ratifying it prohibits
discrimination based on race. The definition of racial discrimination is mentioned in article one
of the Convention, which can be summarized as any differentiation in treatment based on race,
color, descent or national or ethnic origin is to be considered discrimination.174 It is to guarantee
equality and not feel that people are unprotected when it comes to their rights.175 The final
convention mentioned above is the CEDAW, which aims to prohibit all discrimination against
women. It is described as any distinction that is made based on gender is to be considered
discrimination against women.176
The conventions and declaration described above is the international sources that prohibits
discrimination, however, there are other ones as well. There are regional legislations that also
prohibit discrimination. The European Convention on Human Rights (hereinafter ECHR)177
establishes the prohibition in article 14, which explains a freedom from discrimination. It does
differ from the other articles about the prohibition of discrimination in the sense that it cannot
be used on its own. Article 14 of the ECHR needs to be used in combination with another article
of a substantive right from the convention.178
The ECHR is not the only convention in Europe that protects rights, there is also the Charter
of the Fundamental rights of the European Union (hereinafter EU Charter)179 that also
explains the freedom from discrimination. The EU Charter begins with establishing the right to
human dignity and to be respected in the first article.180 Further, it explains other rights and
171 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March
1976) 999 UNTS 171 (ICCPR) Article 26
172 International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into
force 3 January 1976) 993 UNTS 3 (ICESCR) Article 2(2)
173 International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into
force 3 January 1976) 993 UNTS 3 (ICESCR) Article 3
174 Convention of Elimination of All Forms of Racial Discrimination, (adopted 7 March 1966, entered into force
4 January 1969) 660 UNTS 195 (CERD) Article 1(1)
175 Shaw (n 10), p. 256
176 Convention of Elimination of All Forms of Discrimination Against Women (adopted 18 December 1979,
entered into force 3 September 1981) 1249 UNTS 13 (CEDAW) Article 1.
177 European Convention for the Protection of Human Rights and fundamental freedoms (European Convention
on Human Rights, as amended) (ECHR)
178 I. Cameron, “An Introduction to the European Convention on Human Rights”, 8th Edition, (Uppsala: Iustus
Förlag AB, 2018), p. 168–169
179 Charter of the Fundamental rights of the European Union, 7 December 2000, OJ 2000/C 364/01
180 Charter of the Fundamental rights of the European Union (n 179) Article 1
24
prohibitions, for example torture.181 The article that protects against discrimination is ensured
in article 21, which comes after an article explaining that everyone is equal before the law.182
Article 21 explains it as “any discrimination based on sex, race, ethnic or social origin […] shall
be prohibited.”183 Although, the EU Charter was established in 2000 it did not gain legal
standing until 2009, with the help of the Lisbon Treaty which explained that it was to be seen
as a binding treaty.184
Another difference can be seen in accordance with the European view on discrimination there
are two kinds of discrimination, those are direct discrimination and indirect discrimination. The
first one is applied when one person is treated differently than another person based on
comparable situations. The second, is when a provision or policy puts a person that have a
protected characteristic in a less favorable position in comparison to other persons.185
There are slight differences in how the articles are presented in accordance with discrimination.
In the UN Charter it is mentioned twice that human rights are to be respected without
distinction.186 The Universal Declaration describes that human rights are to be afforded without
distinction as well as establishing equality before the law and prohibition of discrimination.187
This is the same for the establishing in the International Covenant of Civil and Political
Rights.188 The International Covenant of Economic, Social and Cultural Rights establishes no
discrimination.189 As for CERD and CEDAW these conventions also uses the distinction as
prohibition of discrimination.190 The ECHR as described above entails the protection from
discrimination in relation to the other rights.191 The EU Charter directly prohibits
discrimination.192 This shows that the prohibition of discrimination is recognized as such. The
principle of non-discrimination works in relation to equality, as it is needed both in fact and as
a formal aspect within law.193
181 Charter of the Fundamental rights of the European Union (n 179), Article 4
182 Ibid. Article 20
183 Ibid. Article 21(1)
184 R. Schütze, “European Union Law,” Third Edition, Oxford: Oxford University Press, 2021, p. 463
185 Eurofond, Indirect Discrimination, (Eurofond, 3 December 2019), accessed 25 January 2025
186 Charter of the United Nations, San Francisco, 24 October 1945, United Nations. Article 55 (c) and 56
187 Universal Declaration of Human Rights 1948 (n 166) Article 2 and 7
188 International Covenant on Civil and Political Rights, New York, 23 March 1976, United Nations General
Assembly. Article 2(1) and 26
189 International Covenant on Economic, Social and Cultural Rights, New York, 3 January 1976, United Nations
General Assembly. Article 2(2)
190 Convention of Elimination of All Forms of Racial Discrimination, New York, 4 January 1969, United Nations
General Assembly. Article 1(1), and Convention of Elimination of All Forms of Discrimination Against Women
(adopted 18 December 1979, entered into force 3 September 1981) 1249 UNTS 13 (CEDAW) Article 1.
191 Convention for the Protection of Human Rights and fundamental freedoms (European Convention on Human
Rights, as amended) (ECHR) Article 14, and Cameron (n 178), p.168–169
192 Charter of the Fundamental rights of the European Union (n 179) Article 21
193 Shaw (n 10), p. 257
25
2.2.2 Discrimination in case-law and resolutions
Aspects of discrimination can be seen in both international and regional cases such as the
Application of the International Convention of the Elimination of All Forms of Racial
Discrimination (Georgia v. Russian Federation)194, Armed Activities on the Territory of the
Congo (DRC v. Rwanda)195, Marschall196 and G4S Secure Solutions197.
A case that shows difficulties in applying the CERD is Application of the International
Convention of the Elimination of All Forms of Racial Discrimination (Georgia v. Russian
Federation)198 where it is discussed if the parties have as in line with CERD negotiated the
aspects of racial discrimination. It is established in article 22 of CERD, that before the case can
be brought before the court negotiations needs to be extensive. The court finds in the case
between Georgia and Russia that the former has not attempted to negotiate in a genuine or
specific manner. This leads to Georgia not fulfilling the requirements in article 22 of CERD.199
Another case mentioning the aspects of racial discrimination is Armed Activities on the
Territory of the Congo where Congo asks the court to assess the aspects of how Rwanda has
made reservations in relation to the CERD. It is explained that Congo argues that the
reservations go against the prohibition of racial discrimination explaining that it is a peremptory
norm and thus is not legal. The court states that non-compliance of a peremptory norm does not
entail jurisdiction.200
Treating people differently is not always considered discrimination, sometimes it is applicable
because of equality within law. For the differentiation to be non-discrimination it needs to be
based upon what is just, reasonable or objectively and reasonably justified.201 In a Dissenting
Opinion of Judge Tanaka in South West Africa he explains that it is in some cases important to
treat individuals differently, this applies both to equality and non-discrimination. It is described
as of importance when it is in accordance with the nature of the difference. Further Judge
Tanaka explains that it is when there is reasonableness or in the idea of justice there is a cause
to treat individuals differently. This also applies to the principle of non-discrimination as it is
in relation to the principle of equality. Tanaka explains the differences with the example of a
minority group still having their rights to for example, practice their religion and therefore
receiving a difference in treatment. This is explained as reasonably justified.202
194 Application of the International Convention of the Elimination of All Forms of Racial Discrimination
(Georgia v. Russian Federation), Preliminary Objections, Judgement, I.C.J. Reports 2011, p. 70.
195 Armed Activities on the Territory of the Congo, (n 119)
196 Case C-409/95 Marschall v Land Nordrhein-Westfalen, judgement of 11 November 1997, ECR I-6383
197 Case C-175/15 Achbita v G4S Secure Solutions, judgement of 14 March 2017, ECLI:EU:2017:203
198 Application of the International Convention of the Elimination of All Forms of Racial Discrimination
(Georgia v. Russian Federation), Preliminary Objections, Judgement, I.C.J. Reports 2011, p. 70.
199 Application of the International Convention of the Elimination of All Forms of Racial Discrimination
(Georgia v. Russian Federation), Preliminary Objections, Judgement, I.C.J. Reports 2011, p. 70. P. 139–140,
para. 180–183.
200 Armed Activities on the Territory of the Congo (n 119), para. 78
201 Shaw (n 10), p. 257–258
202 Dissenting Opinion of Judge Tanaka in South West Africa (Second Phase), ICJ Reports, 1966, p. 250. P. 305–
307
26
In the case C-409/95 Marschall the question is whether a national law to protect the opportunity
of women is applicable in the case or not. The case is about Marschall who has applied for a
promotion, where a female applied for the same promotion. In this case the female gets the
promotion, since the two have the same qualifications. It is described in the national law that a
female shall get the promotion if certain criteria are not fulfilled that balances a tilt in the male’s
favor. The court explains in the preliminary ruling that the national court is to decide whether
the criteria are fulfilled to tilt the balance in Marschalls favor. It is further described that the
rule was put in place to promote the opportunity of women to get promoted, which they seldom
were. 203
Another case that shows potential discrimination is C-157/15 G4S Secure Solutions in which a
policy has been put in place in a company that prohibits employees from wearing visible signs
of their political, philosophical or religious beliefs at the work cite. The applicant in the case
Ms. Achbita was wearing an Islamic headscarf and refused to take it off, which lead to the
company G4S Secure Solutions to terminate her contract. This was brought before the court
and then submitted to the European Court of Justice for a preliminary ruling with the question
if it is to be interpreted as discrimination to prohibit an employee from wearing an Islamic
headscarf.204 It is based on articles from Directive 2000/78205 where article one establishes that
employees are to be treated equally and to combat discrimination based on religion amongst
other.206 Article two is also explained in which it is described that the equal treatment is
ensuring no direct or indirect discrimination. Direct discrimination is described as one person
being less favorably treated than one would in a comparable situation.207 The aspect of direct
discrimination is discussed first, and it is established that since it does not apply to or create a
difference in treatment based on religion per se the policy is not considered direct
discrimination.208 The Court does however, explain that the policy might entail indirect
discrimination which is described as an apparently neutral obligation that disadvantages a
person adhering to a particular religion or belief.209 It might entail indirect discrimination unless
it can be objectively justified by a legitimate aim and it is necessary for achieving said aim.210
The court discusses the aspects of what is the necessary aim and that the policy was established
to keep the company neutral. In this case the court points to if it applies to only certain
employees and that might entail the prohibition to be necessary for the aim. The court does
203 Case C-409/95 Marschall v Land Nordrhein-Westfalen, judgement of 11 November 1997, ECR I-6383. Para.
24–35
204 Case C-175/15 Achbita v G4S Secure Solutions, judgement of 14 March 2017, ECLI:EU:2017:203. para. 10–
21
205 Council Directive (EC) 2000/78 of 27 November 2000 establishing a general framework for equal treatment
in employment and occupation [2000] OJ L 303/43
206 C-175/15 G4S Secure Solutions (n 197), para. 23 and Council Directive (EC) 2000/78 of 27 November 2000
establishing a general framework for equal treatment in employment and occupation [2000] OJ L 303/43, article
1
207 Ibid. Para. 24
208 C-175/15 G4S Secure Solutions (n 197), para. 25–32
209 C-175/15 G4S Secure Solutions, para. 34 and Directive 2000/78 (n 206), article 2 (2) (b)
210 C-175/15 G4S Secure Solutions, para. 35 and Directive 2000/78 (n 206), article 2 (2) (b)(i)
27
further explain that it might not be necessary to dismiss her, instead G4S Secure Solutions could
have limited her exposure to customers.211
In 2000 a resolution 1325 was passed by the Security Council about women’s rights, with
specific focus on women in armed conflicts. The resolution reaffirms the important role of
women in peacekeeping and the importance of equal participation. It also states the importance
of understanding the impact of conflicts on women.212 This is not the only resolution that the
Security Council has passed but through Resolution 1325 the previous ones were recalled.
Other commitments that were recalled through this resolution were to The Beijing Declaration
and Platform for Action as well as others concerning women and as stated in the resolution
especially those “concerning women and armed conflicts”.213
Human Rights Council has passed multiple Resolutions in the General Assembly that are
concerning women’s rights. One example is Resolution “26/5 Elimination of discrimination
against women” from 2014 that explains the importance of the international human rights
treaties and how these ensure equality for women and men. It is also explained that the “full,
equal and effective participation of women” is essential in achieving solutions regarding gender
equality and empowerment of women.214 It also brings forth the fact that all countries are
struggling to overcome inequality, which further leads to an encouragement to intensify the
efforts.215
Another example of a Resolution passed by the Human Rights Council is “56/22 Elimination
of all forms of discrimination against women and girls” from 2024 that underscores that
international human rights law is prohibiting discrimination based on gender.216 It explains that
“1 in every 10 women in the world lives in extreme poverty”217 which in turn is creating gender
discrimination. The Resolution continues explaining that the fact that women are exponentially
more affected of poverty, both in food aspects as well as hygiene aspects. This leads to less
opportunities for women and girls, thus creating inequalities.218 The Human Rights Council
also expresses concern that women do not have the same opportunities to learn about society
as men and therefore are discouraged from inclusion of decision regarding society.219
Regional levels have also adopted resolutions regarding women’s rights, for example European
Council have done this. One example of a resolution from the European Council is the
Resolution 2101 from 2016 “Systematic collection of data on violence against women” put
together by the Parliamentary Assembly. This highlights the importance of data collection to
211 C-175/15 G4S Secure Solutions (n 197), para. 36–43
212 UNSC Resolution 1325, ‘Resolution 1325’, UN Doc. S/RES/1325, 31 October 2000.
213 Resolution 1325, Preamble para. 1–2.
214 UNGA, Human Rights Council, 26/5 ‘Elimination of discrimination against women’, UN Doc.
A/HRC/RES/26/5, 14 July 2014, Preamble para. 5–6.
215 Ibid. Preamble, para. 9.
216 UNGA, Human Rights Council, 56/22 ‘Elimination of all forms of discrimination against women and girls’,
UN Doc. A/HRC/RES/56/22, 16 July 2024. Preamble 1–9
21756/22 ‘Elimination of all forms of discrimination against women and girls’, (n 216), Preamble 12
218 56/22 ‘Elimination of all forms of discrimination against women and girls’, (n 216), Preamble 28–29
219 56/22 ‘Elimination of all forms of discrimination against women and girls’, (n 216), preamble para. 33
28
be able to effectively achieve tackling violence against women, which is based on the aspects
of no precise information hides the effect it has on society. Further, it references to the Istanbul
Convention and that the Assembly acknowledges the commitment that the Convention
entails.220
2.2.3 Discrimination and Religion
It is important to note the relationship between human rights and cultural traditions since there
is tension in the universalism. This is because certain aspects of human rights are considered in
a context of cultural and religious characteristics, which in turn creates a difficulty of human
rights as being the same universally.221 This is of importance because it is sometimes used as a
justification to how the rights are violated. It is described as tradition or culture and is thus not
to constitute as a violation. Discrimination might have different definitions in accordance with
the conventions but not culturally or religiously.222
In some countries certain philosophies or religious beliefs have a primacy that it is legally
indisputable. This can in circumstances lead to conflict between the international obligation and
how it is expressed within said belief, where the latter is the one to persist. A result of this is
the conflict of human rights and the religious or philosophical beliefs. In certain cases, this has
been resolved with reservations, which might contradict the object of the convention.223 An
example of this are countries adopting the norms of Islam, which have faced complexities in
adopting human rights to Shari’ah. It is expressed that the international human rights have been
formulated with a western perspective, but that does not entail that the rights within Shari’ah is
of less importance. Despite the rights in Shari’ah being important these have been classified as
an alternative source of rights whereas the international human rights have been seen as the
legitimate ones. This has led to states ratifying human rights conventions with reservations to
ensure Shari’ah, which can conflict with the objects or the purpose. Examples of this are in
relation to CEDAW as well as the freedom of religion which both are protected in articles
considering discrimination.224
An example of this is explained in AlBader’s article “Cultural oppression disguised as Religious
Obligation: A Fatal Misrepresentation to the Advancement of Muslim Women’s Rights in the
context of so-called Honor Killings” where the rights of women are being oppressed in
accordance with religion. AlBader explains that there are parts of Islam that discusses the
equality of men and women, but that it is a way to restrict the freedoms of women’s rights.225
AlBader explains how it is cultural factors that oppresses women and that it is not based on
220 Council of Europe, parliamentary Assembly, Resolution 2101, ‘Systematic collection of data on violence
against women’, 4 March 2016.
221 Shaw (n 10), p. 244
222 Shaw (n 10), p. 244
223 Thirlway (n 63), p. 31–33
224 Thirlway (n 63), p. 204–207
225 F. AlBader, ‘Cultural oppression disguised as Religious Obligation: A Fatal Misrepresentation to the
Advancement of Muslim Women’s Rights in the context of so-called Honor Killings’ (2020) Asian Pacific Law
Journal, 24 Asian Pac. AM. L.J. 1, P. 3
29
religion. It is the relation between culture and religion that keeps the traditions alive since it is
justified as a part of religion.226 This shows a distinction based on gender which is the definition
of discrimination as shown within the conventions above.
Another example is Chakraborty’s article “The Myth and Reality of ‘Universality’ in the
Universal Human Rights” which describes that the ‘universality’ of human rights is not as
universal as one might think. It is that rights are not available to all, despite it being the
definition of human rights. The author writes that rights are seldom available to people without
aspects of “race, class, caste, religion and gender” 227 as well as the last one not being discussed
to a reasonable extent. Chakraborty states that rights might not be established on values that are
common to all persons. 228 It is explained that views on rights differ in the west and other
countries. The author gives the example of India, which signed and ratified CEDAW but not
without reservation. These reservations were against the state to interfere with the religious,
personal, cultural and familial matters of CEDAW. This results in multiple aspects of which
discrimination against women are based upon.229 Another aspect that Chakraborty expresses is
the difference in hierarchy between rights which is important due to the community perspective
used in non-western countries. Prioritizing individual rights instead of the collective ones
creates a difficulty in aligning the rights. It is explained that the aspect of a public or private
sphere is a western view of how rights are seen, in non-western countries issues are first solved
within family and as a last resort through the public sphere. Chakraborty also describes how it
can include different aspects depending on what is included.230 Highlighting the importance of
changing attitudes and perspectives to make rights universal.231
To protect the girl child and in extension women Askari suggests gender equality as a jus cogens
norm, it is explained as the most efficient method in eliminating discrimination based on
gender.232 There are a few main arguments that Askari explains that are of importance; firstly,
the differences between CEDAW and the Convention on the Rights of the Child233. Secondly
that girls are not included within human rights law which creates a language that is not inclusive
of girls. This in turn leads to a gender bias as Askari argues.234 Thirdly the difference in spheres
that the discrimination of women in public and private, which includes different matters as well
as who is to deal with the violations. It is further described that this relates to what is considered
private versus public within countries.235 Fourth, Askari explains the different generations of
rights and how this leads to a difference in hierarchy between genders and the priority of the
226 AlBader (n 225), p. 5–8
227 G. Chakraborty, ’The Myth and Reality of ‘Universality’ in Universal Human Rights’ (2008) 1 GNLU L Rev
42. P. 42
228 Chakraborty (n 227), p. 42.
229 Chakraborty (n 227), p. 45–46
230 Chakraborty (n 227), p. 51–53
231 Chakraborty (n 227), p. 53–54
232 L. Askari, ‘Girl’s Rights under International Law: An Argument for Establishing Gender Equality as a Jus
Cogens,’ (1998) Southern California Review of Law and Women’s Studies, vol. 8, no. 1, pp. 3–42. P. 3–4
233 Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990)
1577 UNTS 3
234 Askari (n 232), p. 11–16
235 Askari (n 232), p. 20–24
30
rights.236 Fifth aspect that is explained is that countries might choose not to ratify treaties that
ensure women’s rights thus creating a non-obligatory treaty.237 Lastly the aspect of reservations
to treaties is explained as an aspect that allows for a state to avoid the obligations within a
treaty.238 This in turn leads to as explained by Askari that compliance with a treaty can be
escaped.239 Askari goes on to describe that the norms that are jus cogens entail a gender bias
and protects the male perspective of what is important. Furthermore, to explain that gender
equality should be a norm of jus cogens which is to ensure that women and girls are protected
despite how states act in accordance with treaties.240 Askari concludes that gender equality
achieving a status as jus cogens will not spontaneously abolish discrimination despite it being
a goal of the international community. It will gain a tool for ensuring that women and girls
experiences are seen as values that are of importance for the international society. It is expressed
that law might not be the model for change, but it introduces critique that highlights issues.241
2.2.4 Summary
The definition of the prohibition of discrimination is clear, there is to be no divergence in the
treatment of a human based on race, sex, ethnicity, language or religion. Furthermore, it is
described with slight differences in every legal text, but the consensus is the same humans are
to be treated without distinction from each other. This can be seen within multiple conventions.
It is also seen in the cases that has been brought forth especially Marschall242 and G4S Secure
Solutions243. These cases show that discrimination can be seen in different perspectives. As is
explained through the resolutions above, women despite the prohibition of discrimination based
on sex are still victims of discrimination. It expressed how rights are seen differently in relation
to religion and how that affects discrimination. Despite articles prohibiting discrimination, as it
is seen in the texts by AlBader and Chakraborty, how some aspects are defined as not being
discrimination based on religion and culture. Through the articles by Chakraborty and Askari
it is described that change is necessary, one explaining how rights are viewed and the other how
law is not the only solution for change.
236 Askari (n 232), p. 26–28
237 Ibid. p. 29–30
238 Askari (n 232), p. 31
239 Ibid. p. 32–34
240 Askari (n 232), p. 36–42
241 Ibid. p. 41–42
242 C-409/95, Marschall (n 196)
243 C-175/15 G4S Secure Solutions (n 197)
31
3. Legal sources of Women’s Rights
3.1 General information
Discussions about the different levels of rights are important even within women’s rights. There
are different legal documents concerning international planes, regional and national. multiple
conventions entailing rights exist on the international plane starting with the Universal
Declaration on Human Rights244, the International Covenant on Civil and political rights245, the
International Covenant on Economic, Social and Cultural Rights246, these are general
conventions that include multiple different rights.247 However, these are not as important as the
International Convention is CEDAW within this thesis because it is the only convention
regarding discrimination against women. It is mentioning women specifically which other
conventions fails to do. When it comes to the regional plane the Istanbul Convention is of
importance here as well as the European Convention on Human Rights, because the Istanbul
Convention applies to violence against women as well as changing the stereotypical view of
women. The Beijing Declaration and Platform for Action is also of importance here since it
gives specific objections as to combating the inequality for women. The Platform for Action
contains areas that are significantly in need of change for equality and empowerment of women
to happen.
3.2 Convention of Elimination of All Forms of Discrimination Against
Women (CEDAW)
3.2.1 CEDAW and Interpretation
The CEDAW came to be in 1979, but did not enter into force until 1981. This is because of
article 27 within the convention giving direct instructions of when it is to enter into force. The
main goal of the convention is to secure equality and rights for women, as well as “affirming
the principle of the inadmissibility of discrimination”248. It is also describing the importance
of recognizing the work of women both in the home and society. It is described in the preamble
that a change in the roles of men and women is necessary to achieve equality.249 A convention
such as this is binding upon the states that ratify the convention.
Article 1 in CEDAW defines what discrimination against women as “any distinction, exclusion
or restriction made on the basis of sex” that has as result impairing the rights of women.250 It is
established that states are to works towards non-discrimination within legislative fora, as well
244 Universal Declaration of Human Rights (n 166)
245 International Covenant of Political and Civil Rights (n 170)
246 International Covenant on Economic, Social and Cultural Rights (n 159)
247 Henriksen (n 14), p. 165
248 Convention of Elimination of All Forms of Discrimination Against Women (adopted 18 December 1979,
entered into force 3 September 1981) 1249 UNTS 13 (CEDAW) Preamble para. 3
249 Ibid. para. 14-15
250 Convention of Elimination of All Forms of Discrimination Against Women (adopted 18 December 1979,
entered into force 3 September 1981) 1249 UNTS 13 (CEDAW) Article 1.
32
as with equality of genders before the law.251 Article 4 entails that temporary measures that
quickens the process of equality is not to be considered discrimination. Article 5 establishes
that States are to change the patterns and stereotypes of what women are supposed to do, as
well as ensuring equal opportunity to attend to family. The states are to suppress trafficking and
exploitation of women, as derived from article 6. Articles 7 and 8 explain that women are to be
able to vote, participate and can represent their government. They are to have the right to be or
change their nationality, article 9. Women are to have the equal rights within education,
employment, healthcare and every other economic or social aspect of life, articles 10–13. This
does not only apply to women in cities but further women in rural areas, article 14. The last
substantive right that is explained in CEDAW entail women’s right in aspects of marriage and
family situations, article 16.252
Afghanistan ratified CEDAW in 2003253 but has since 2021 started revoking the rights of
women, by restricting and excluding women as well as girls from decision-making positions
and education. It is considered discrimination against women as can be seen in CEDAW.254
In CEDAW it is stated that work needs to be done towards equality, however, it is established
that signatories can make reservations to articles. This entails that certain aspects of the
convention can be reserved against to make them non-violation of the convention. Despite the
possibility there are limits to the reservations and the reservations can be withdrawn. This is
specified within article 28 of the Convention.255 One example of a reservations is India making
a reservation to article 5 of the convention, which entail that states need to make social and
cultural changes to ensure equality and eliminate the aspects that continue discrimination
against women. India made their reservations against the cultural aspect of the article. The parts
of the population that the cultural aspect affect is mainly women, which hinders the work to
eliminate discrimination.256
Another important part of the convention is article 29, where it is established that conflicts
arising are to be settled with arbitration. If that is not possible within a time limit of six months
the dispute is to be brought before the ICJ.257 This is interesting because no cases concerning
the Convention has been brought before the ICJ.258 Despite the lack of cases that address the
convention separately it is included in the case Armed Activities on the Territory of the
Congo259. It does, however, not lead to a conclusion that explains a violation for Rwanda, which
251 CEDAW. Article 2, 3 and 15
252 CEDAW Articles 4–16.
253 UN Treaty Body Database, ‘View the ratification status by country or by treaty’ (United Nations Human
Rights Treaty Body),
accessed 19 February 2025
254 Wigard, (n 55) and CEDAW (n 248), article 1
255 CEDAW, article 28
256 Chakraborty, (n 227), P. 46
257 CEDAW, article 29
258 Wigard, (n 55)
259 Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo
v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2006, p. 6.
33
the complaint was towards. This is because the court finds that it does not have jurisdiction to
rule in the case since the states have not negotiated beforehand, nor has it been brought up in
arbitration, which is another step before the ICJ is to receive the case. Therefore, the ICJ
dismisses the point in the case for it has not fulfilled the cumulative criteria in article 29.260
CEDAW also establishes that a committee that ensures the implementation and work of the
states towards non-discrimination of women is to be created. This committee is called the
Committee on the Elimination of Discrimination against Women. Article 17 within the
convention describes how the committee is to be orchestrated and how the members of the
committee are to be elected.261 The election is done through secret ballot and the nominees are
to be experts of high moral standing and competence. They must also be nationals of a state
party to the Convention, whereas 23 persons are chosen as the members.262 The Committee are
to receive reports from States, these might show why the state cannot fulfill their obligations.
It is up to the committee to establish how procedures are to be handled. It is to make suggestions
and recommendations on how states are to fulfill their obligations of the convention, through
considering the reports that are submitted to them.263
3.2.2 Committee on the Elimination of Discrimination against Women
The Committee on the Elimination of All Forms of Discrimination against Women is a
committee where state parties of CEDAW report. The committee can then make suggestions or
general recommendations of changes that can be done. A protocol was adopted in 1999 that
allows individuals to report to the committee as well as giving the committee opportunity to
start proceedings where grave violations against the Convention has occurred.264 The protocol
was adopted through a resolution265 from the General Assembly and is a call to states to ratify
the Convention.266 Furthermore, it is reaffirming the human rights and the dignity that is
bestowed upon humans, within the UN Charter.267 The main article within the Optional Protocol
is article 2 which allows individuals to submit communications where violations against the
Convention has been committed.268
An example of where an individual has submitted a communication to the Committee is within
Communication No. 47/2012 which includes a decision of the Committee under the Optional
Protocol.269 The facts, of the Communication, constitutes of a woman being subjected to
260 Armed Activities on the Territory of the Congo (n 259), para. 87–93
261 CEDAW, Article 17
262 CEDAW, Article 17 (1 and 2)
263 CEDAW, Articles 18–21
264 Shaw (n 10), p. 280–282
265 Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women
(adopted 6 October 1999, entered into force 22 December 2000) 2131 UNTS 83
266 Ibid. Para. 3
267 Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women,
Preamble para. 1
268 Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women,
article 2
269 United Nations Committee on the Elimination of Discrimination against Women, Communication No.
47/2012, CEDAW/C/58/D/47/2012, 16 July 2014.
34
domestic violence, both before and after marriage as well as the couple welcomed a child in
1996. The woman left the marriage with her daughter in 1999 which resulted in a trial of
separation and visitations being established with the father. Despite being separated the abuse
continued and the woman filed more than 30 complaints to the court to keep her former husband
from her. In October of 2000 her former husband was convicted on a charge of harassment
resulting in protective orders for her, but these did not include her daughter. The father was
granted supervised visitation, but the mother protested. The daughter expressed that she did not
like being with her father, despite this the visits continued and gradually expanded in
accordance with the decision of the court.270
In 2002 the visits were decided to be unsupervised, despite the woman’s disagreement. She
appealed the decision, but it was rejected. The daughter further expressed reluctance to spend
time with her father, and it was reported that the father had asked the daughter about the
woman’s private information. In 2003, there was a hearing considering the woman’s use of the
family residence, after which the woman took the daughter for the planned visit. When she
came to pick the daughter up the father did not arrive on time, the woman went to the police
which led to them visiting the father. Only to find the daughter and the father dead.271 The
woman filed a complaint with the committee based on mistreatment against her as well as no
measures of protection were effectively ordered by authorities. This because of the negligence
of the administrative and judicial authorities in Spain were the case occurred. It is also presented
that the State has not followed their due diligence to protect victims of domestic abuse.272 The
state explains that the woman has not properly exhausted all the national remedies before filing
a complaint with the Committee. Further, expressing that it has not committed an infringement
of CEDAW, and it did not act negligent. The State also points out that the Optional Protocol
entered into force after the events.273
The woman explains that she has brought the case before the court on the premise of miscarriage
of justice and not judicial error. Her cases were rejected, she explains that the abuse was
ongoing and led to her daughter’s death after the Protocol came into force.274 The state explains
that based on the woman’s admission it could not have foreseen that the child was in danger. It
has further taken multiple actions to eradicate violence against women and raising awareness
of domestic violence in 2004.275 The Committee first assesses the communications to decide if
there is jurisdiction. It is explained that jurisdiction is limited to the events after the entry into
force of the Protocol, in 2001.276 It is described how the courts should have based their decisions
on the facts of failure to pay child support, the pattern of previous abuse and how the mother
was in a vulnerable position having to communicate with her abuser. The Committee also
describes that the state has through their actions neglected the woman’s right to not be a victim
270 Communication 47/2012 (n 269) P. 2–4
271 Communication 47/2012 (n 269), p. 5
272 Communication 47/2012 (n 269), p. 6–7
273 Ibid. p. 8–9
274 Ibid. p. 10, para. 5.1–5.4
275 Ibid. p. 11–12
276 Ibid. p. 13–14
35
of violence. The state has deprived the woman of protection.277 Spain has thus not fulfilled their
obligations in line with CEDAW and has infringed the rights of non-discrimination.278
The predecessor to the committee is the Commission on the Status of Women which was
established in 1946 and reports to the Commissions of Economic and Social Council
(ECOSOC). This commission has done the initial work and set the standard for the
committee.279 How the Commission is to operate and what it is to do was decided in the
Resolution 11 (II) of 21 June 1946.280 The Commission is to prepare reports and
recommendations on the improvement of women’s rights, which is to be done to the Economic
and Social Council. It is explained that the Commission is to be composed of one member from
each of the Fifteen members in the United Nations. The members are to be selected by the
Economic and Social Council. However, when the Commission was established the legislation
of women’s rights were not extensive, therefore it was concluded that studies were to be done
on the legislation.281
3.3 Council of Europe Convention on preventing and combating
violence against women and domestic violence (Istanbul Convention)
3.3.1 Istanbul Convention and Interpretation
The Istanbul Convention is a European convention that was orchestrated by the Council of
Europe. It is a convention that sets out to prevent and combat violence against women, affecting
both the public and private spheres. The Convention also describes other forms of domestic
violence as well. Despite including other forms of domestic abuse, it aims to combat
discrimination and inequality of women. It also sets out to hinder the structural aspects of
violence against women and how this influences equality. The convention is also to work
towards a Europe free from violence.282
In the first article of the Istanbul Convention, it is explained that the purpose is to ensure
protection of women from all forms of violence, eliminate discrimination against women and
promote equality, implement measures that helps in protection, promote international co-
operation of elimination of violence against women, and provide assistance to organizations to
adopt an integrated approach.283 It is further established in the second article that the Istanbul
Convention is to apply to all forms of violence that affects women disproportionately. It points
out that attention should be on victims of gender-based violence and the Istanbul Convention
277 Communication 47/2012 (n 269), p. 15–17
278 Ibid. P.17, para. 9.9
279 Shaw (n 10), p. 280–281
280 UN Women, ‘Commission on the Status of women’ < www.unwomen.org/en/how-we-work/commission-on-
the-status-of-women> accessed 7 February 2025
281 Commission of Economic and Social Council, Resolution 11(II) of 21 June 1946, United Nations, UN Doc.
No. 29, 13 July 1946
282 Council of Europe Convention on preventing and combating violence against women and domestic violence
(2011), Istanbul, Council of Europe Treaty Series – No. 210, preamble para 1-17
283 Istanbul Convention, article 1
36
is to be applicable both in armed conflict and times of peace.284 Article 3 explains the different
definitions of importance, violence against women is a violation of human rights and
discrimination as well as meaning all acts of gender-based violence.285 Domestic violence is
described as violence in the family of domestic unit.286 Gender is defined as “socially
constructed roles, behavior, activities and attributes” that have been bestowed upon women.287
The next definition is gender-based violence against women which is the violence that is
directed against women and affects them disproportionally.288 The last two are victim which is
any natural person that is affected of violence and women which is defined to include girls
under the age of 18.289
In article 4 it is explained that the parties to the Istanbul Convention are to implement necessary
legal means to protect all individuals, in particular women, against violence, discrimination and
gender-based violence. Both in the public and private sphere.290 The parties are to ensure that
the States follow these obligations, and the parties also take upon themselves to guarantee that
non-state actors follow the obligations.291 The parties are to implement a gender perspective as
well as empowering women and working towards equality.292
The Istanbul Convention contains aspects to prevent violence against women, with obligations
to change the social and cultural patterns, raise awareness, education, and more aspects.293
There are multiple articles in the Istanbul Convention that are obligating the parties to offer
protection and support in different ways, and explaining what is criminalized as well as how
that should be handled.294 The Convention establishes a monitoring group that will ensure the
implementation of the Istanbul convention.295 One interesting part of the Istanbul Convention,
it does not allow reservations to articles with certain exceptions.296 The reservation that can be
made have a time limit of five years, which can be allowed to be renewed for another five years.
For a country to renew their reservations it must give their reasons for renewal to the monitoring
mechanism before it is allowed.297
284 Istanbul Convention, article 2
285 Istanbul Convention, article 3(a)
286 Istanbul Convention, article 3(b)
287 Istanbul Convention, article 3(c)
288 Istanbul Convention, article 3(d)
289 Istanbul Convention, article 3 (e) (f)
290 Istanbul Convention, article 4
291 Istanbul Convention, article 5
292 Istanbul Convention, article 6
293 Istanbul Convention, articles 12–17
294 Istanbul Convention, articles 18–48
295 Istanbul Convention, article 66
296 Istanbul Convention, article 78
297 Istanbul Convention, article 79
37
3.3.2 Case-law and GREVIO
There are no cases concerning only the Istanbul Convention, it is considered in combination
with other aspects.298 There are three cases concerning discrimination and the Istanbul
Convention that are explained below.
The first case Jurčić v. Croatia is concerning a woman who was fired from her workplace
because she took a leave of absence due to pregnancy related symptoms following her in vitro
fertilization. The woman was dismissed from her position due to the courts finding that she was
cheating the system. However, the case before the European Court of Human Rights analyzes
the case based on the merits of the company terminating a contract with a woman that is
pregnant, as well as the aspects of discrimination regarding her gender. The Istanbul
Convention among other legal documents are used to assess whether there is discrimination or
not in this case. The case refers to Istanbul Convention article 12299, in which the parties take
on the role to combat stereotypes and to promote change regarding social and cultural aspects
of society.300 The court explains that terminating the contract based on pregnancy is in violation
with stereotyping women and gender discrimination. It is not in line with the relevant gender
equality standards. Therefore, Croatia has violated their obligations of gender equality.301
The other case Carvalho Pinto De Sousa Morias v Portugal about the medical malpractice
regarding a woman also mentions the Istanbul Convention and the connection to the case. It is
mainly regarded with the ECHR and article 14. It is assessed that the state of Portugal has
compared the case with other cases concerning males with similarities in the case, which is
justifiable to a certain degree.302 It is described how certain aspects might be considered
legitimate to restrict within article 14. However, gender equality and discrimination based on
sex is never an aspect that is justifiable to restrict within the European Convention of Human
Rights.303 It is explained that Portugal has ratified the Istanbul convention and thus are to
prevent discrimination against women. Another important aspect is that work should be done
to create a change in cultural patters and the idea of women being inferior. It is stated that
Portugal has reported that their work in this area is limited and that concerns have been
expressed when it comes to sexism.304
A third case that relates to the Istanbul Convention is Case of J.D. and A. v The United
Kingdom305 is concerning two applicants that have lost part of their housing benefit because
their apartments are bigger than necessary. The first applicant has a daughter that is disabled
and thus have an apartment that is adjusted to those needs. The second applicant lives in the
298 Jurčić v Croatia, no. 54711/15, (ECtHR 4 May 2021), P. 17, para. 44, Carvalho Pinto De Sousa Morias v
Portugal, no. 17484/15, (ECtHR 25 October 2017), P. 9, para. 27, and J.D. and A. v The United Kingdom, nos.
32949/17 and 34614/17, (ECtHR 24 February 2020), P. 15, para. 50.
299 Istanbul Convention, article 12
300 Jurčić v Croatia, no. 54711/15, (ECtHR 4 May 2021), p. 17, para. 44
301 Jurčić v Croatia, p. 22–27, para. 83–84 specifically.
302 Carvalho Pinto De Sousa Morias v Portugal, no. 17484/15, (ECtHR 25 October 2017), para. 44–46
303 Carvalho Pinto De Sousa Morias v Portugal, Para. 44–46
304 Ibid. para. 27–29 and para. 54
305 J.D. and A. v The United Kingdom, nos. 32949/17 and 34614/17, (ECtHR 24 February 2020)
38
apartment as part of the Sanctuary Scheme with her son.306 The court describes how different
treatment is protected against if there is no objective or reasonable justification. It is explained
how the aims of the decisions regarding the applicants differ.307 The first applicant has not been
treated differently since there is no need for the applicant to have the extra space if there is an
accommodation that offers the same adjustments to the apartment, as the one they are currently
living in.308 The second applicant has been treated differently because of the aim of her
apartment is to be protected from domestic violence, which despite the apartment being bigger
than necessary has accomplished. Therefore, them moving could endanger their lives and
difference in treatment is permitted.309 In this case the difference in treatment is explained to
be in accordance with justifiable circumstances, the court thus decides that in relation to the
first applicant there is no violation, but there was violation in relation to the second applicant.310
The Istanbul Convention is important in the work to combat violence against women but also
stereotyping of women in cultural and social settings.311 It was intended to be used for the
change in Europe towards non-violence of women.312
In 2019 Resolution 2289 “The Istanbul Convention on violence against women: achievements
and challenges” was adopted by the parliamentary Assembly of the Council of Europe. It
explains that the implementation of the Istanbul Convention has been of utmost importance in
ensuring the standards of legislation. The resolution further acknowledges that the Istanbul
Convention has had an immense positive impact, with awareness of victims regarding violence
against women. In accordance with the need to work against this sort of violence.313 It is
explained that the Istanbul Convention has induced work against gender stereotypes within
member states.314 The European Union should also quicken their accession of the convention
as well as non-Council of Europe member states should consider becoming members to the
Istanbul Convention.315
The positive aspects that the Istanbul Convention has entailed is not without its negative
aspects. There are still women that are victims to violence and discrimination.316 Progress takes
time, and the Istanbul Convention has been in force since 2014.317 It is far shorter than CEDAW
has been in force and there are still countries with laws the discriminate against women.318
306J.D. and A. v The United Kingdom, p. 2–3, para. 8-14
307 J.D. and A. v The United Kingdom (n 305), p. 22–27.
308 J.D. and A. v The United Kingdom, p. 28, para. 101–102
309 J.D. and A. v The United Kingdom, p. 28–29, para. 103-105
310 J.D. and A. v The United Kingdom, p. 29, para. 106–107
311 Jurčić v Croatia (n 300), Carvalho Pinto De Sousa Morias v Portugal, (n 302) and J.D. and A. v The United
Kingdom, (n 305) And Istanbul Convention, article 12.
312 Istanbul Convention, preamble para. 17
313 Council of Europe, parliamentary Assembly, Resolution 2289, ‘The Istanbul Convention on violence against
women: achievements and challenges’, 25 June 2019. Para. 1–9
314 Ibid. Para. 10
315 Ibid. Para. 12–13
316 Ibid. Para. 8–9
317 Ibid. Para. 8
318 Oxfam International, ‘Gender justice and women’s rights’ (n 2)
39
In the Istanbul Convention there is an article that explains a monitoring mechanism, which is
to be called Group of experts on action against violence against women and domestic violence
in short GREVIO. The Group is to oversee the implementation of the convention.319 The
members of GREVIO are to be appointed by a Committee of the Parties, which in turn is
representatives from the state parties to the Istanbul Convention.320 A few principles are
important in the selection of the members of GREVIO, the selection is to be transparent and of
persons that have a high moral standard as well as being known for their contribution to the
field. It is also important that there is only one member from a state party, no two members can
be nationals of the same state. Another aspect of importance is that the member represents legal
systems and relevant actors. The member shall further be independent and objective.321
3.4 Beijing Declaration and Platform for Action
3.4.1 Beijing Declaration
During 1995 the fourth global meeting was held for empowerment and work for women’s
rights. The Conference led to the Beijing Declaration and Platform for Action, which was
created with the aim to remove the aspects that hinder women from participating in the public
and private sphere. 322 The Declaration includes the commitment, and the Platform for Action
includes actions for change to ensure. The Beijing Declaration and Platform for Action is a non-
binding agreement within international law; however, it highlights and places women’s rights
on the agenda for work. This by taking a human rights approach for the work to empower
women.323 The first part of the Beijing Declaration is explaining what the states intend it to
become. It explains that it is a document that recognizes the status of women and how equality
is needed as well as a work in progress. The states reaffirm their commitment to enshrine equal
human rights and dignity upon women and further build on the consensus and progress that was
contended during previous global meetings.324 It is described to be believed that women rights
are human rights as well as their participation is key in the work towards a more equal society.325
3.4.2 Platform for Action
The Platform for Action explains the importance of what has been done and what further needs
to be done. It is described that despite the increase in women being employed as well as being
elected to for legislative work, there are many aspects that equality is still not fulfilled. One
example is between the roles within the home and workforce, which is described as more equal
319 Istanbul Convention, article 66 (1)
320 Istanbul Convention, article 66 (2) and 67 (1)
321 Istanbul Convention, article 66 (4)
322 M. Waldron, 'From the Margins to the Mainstream: The Beijing Declaration and Platform for Action' (1995)
33 Can YB Int'l L 123. P. 124
323 Ibid. p. 124 –125
324 United Nations Entity for Gender Equality and the Empowerment of Women (UN Women), ‘Beijing
Declaration and Platform for Action, Beijing +5 Political Declaration and Outcomes” (2015). UN Women
Headquarters Office, 2015. p. 8–9
325 Beijing Declaration (n 324), p. 9–12
40
then when the thought was first presented. However, it is not where it needs to be.326 Another
example is how media could change the narrative and create a more equal view, to not show
the stereotypical aspects of what women and men are within society. It is explained that this
approach would make significant change if it showed the equal parts of human dignity despite
gender.327
The Platform for Action explains that the improvement of women’s rights and equality are a
matter of human rights, which is not just a problem for women but amongst all individuals. It
is further explained that there has been a review of the progress of the previous Conference in
Nairobi, which describes that focus should be on critical areas and the objectives that are put
forth in line with those areas.328 There are 12 critical areas (emphasis added) where action is
necessary, as these areas would ensure empowerment. The critical areas are: burden poverty on
women, lack of education and training, lack of access to healthcare and other similar services,
violence against women, effects on women in armed conflict and occupied areas, inequalities
in economic structures and policies, inequal sharing of power and decision-making, insufficient
mechanisms to promote advancement of women, lack of respect for and inadequate promotion
and protection of women’s rights, stereotyping and lack of women’s access to communication
systems, gender inequalities in managing natural resources and the safeguarding of the
environment, and finally discrimination and violation of the rights of girl children. 329 There are
actions described to create change in the critical areas. The actions are interlinked with the
objectives and are constructed to enhance the situation for women without any distinction.330
The actions are described through the Platform for Action of the critical areas, but the areas are
also explained. The areas are going to be explained shortly as they are in the Beijing Declaration
and Platform for Action.331 The first one is the burden of poverty, is part of the social gender
roles that afford women limited resources and leads to insecurity within families. It is explained
that if women were to contribute that would lead to less poverty as well as empowerment of
women. However, since women take care of families which is described as directly linked to
the lack of economic opportunities as well as autonomy.332 The lack of education and training
of women is explained to be linked to the attitudes toward women within the family, which in
turn leads to them not gaining education. This in turn leads to further discrimination of women
as well as them not being able to learn and thus work.333 Women not having access to healthcare
causes a lesser quality of life, since they do not learn about the reproductive rights and thus
their right to self-determination. Lack of healthcare leads to unsafe abortions, mortality due to
cancers and infertility. Women are also affected due to the research being done on men and
therefore not considering the differences of gender.334 Violence against women which is any
326 Platform for Action (n 324), p. 24–25
327 Platform for Action (n 324), p. 27
328 Ibid. P. 30
329 Ibid. P. 31
330 Ibid. p. 32
331 Ibid. p. 32
332 Ibid. p. 33–43
333 Ibid. p. 44–54
334 Ibid. p. 55–75
41
act of violence that is gender-based. Creating situations where women are threatened based on
the sole reason, they are women, it is explained that the educational systems are to “promote
self-respect, mutual respect, and cooperation between women and men.”335 Violence against
women are not an issue for solely women, it is a violation of women’s human rights.336 In
relation to women in armed conflicts it is described that peace is a factor for equality, and that
women should be able to participate in decision-making. It is also explained that women living
in areas of armed conflicts should be protected.337 To empower women their economic
situations as well as their protection in employment needs to be improved.338 This includes
women gaining power and being included in decision-making areas of society, which would
benefit from their experiences.339 All of these aspects are ones to work towards advancement
of women, which needs to be done within government as well. This through implementing a
gender-perspective as well as the mandates of organizations concerned with the progress.340
The Platform for Action highlights the human rights of women as a critical area, describing
how human rights are a birthright to all human beings. It is described that to protect the rights
of women, reservations that are not in line with the object of conventions should not be allowed.
Women’s rights and equality will not be secured and will occur until it is no longer an issue of
attitudes, practices or lack of enforcement.341 It is described that violence against women is an
aspect that affects their human rights and dignity.342 Another concern is that media stops the
advancement of women, because it upholds stereotypes that are pictured of women. It is
suggested that media should change the narrative and promote gender perspective.343
Addressing women and the environment highlights the importance of women and decision-
making, because of the woman’s perspective on sustainability and preserving quality of life for
future generations. Both women and men need to be involved, or the changes will not last.344
The last concern mentioned is the rights of the girl child explaining that discrimination start in
childhood. This is visible through not having the same opportunities and not having equal
access to information as boy children.345
The Beijing Declaration and Platform for Action explains that through the actions there should
be a change in society, and it sets a goal for it to be done in 2000. It is important with “clear
objectives and accountability mechanisms”346 to be bestowed upon governments and
organizations, at both global and national level. It is expressed that women are to be overseeing
the implementation. At a national level it is mainly governments bearing the responsibilities to
335 Platform for Action (n 324), p. 78, para. 119
336 Platform for Action (n 324), p. 76–86
337 Ibid. p. 87–100
338 Ibid. p. 102–118
339 Ibid. p. 119–126
340 Ibid. p. 127–133
341 Platform for Action (n 324), p. 136, para. 219
342 Ibid. p. 134–148
343 Ibid. p. 149–154
344 Ibid. p. 155–164
345 Ibid. p. 165–176
346 Platform for Action (n 324), p. 177, para. 288
42
implement change, through promotion of awareness within society.347 There are further
commissions at regional levels that are to assist the national levels with their work. The
Regional level is also supposed to support the private sector in working against gender issues.348
Lastly, the international level is mentioned, where the United Nations, General Assembly, and
different Commissions as well as Committees are to work towards equality. One of these
committees is the Commission on the Status of Women, which in Resolution 1996/6 (p. 20)
gained authority to oversee and monitor the implementation of the Platform of Action. The
Commission were to have a catalytic role in the advancement of gender perspectives and
mainstreaming. To ensure that the platform was implemented by all United Nations bodies by
the year 2000.349
3.4.3 Beijing +5
In 2000 there was a follow up on the Beijing Declaration and Platform for Action, named
Beijing +5, and it begins with reaffirming the Beijing Declaration. The States pledging to create
a society where men and women work towards equality.350 It discusses the progress and the
obstacles that have been met in the work of the 12 critical areas. In all 12 areas there have been
improvements, but these are also tainted with difficulties to progress in the sense that was
intended. One explanation is that since 1995 a globalization has taken place, which has
introduced more differences between countries. This has led to further differences between
citizens in countries and between developing ones and developed ones. Thus, creating less of a
focus on gender perspective.351
The different areas are explained as follows. In the women and poverty there have been progress
in promoting employment and providing social services for women. The main obstacle to the
progress has been income inequality.352 Education and training of women have made progress
in that the awareness of the importance has increased, which has been done with measures to
create opportunities. This has been difficult because of resources and the will to improve the
system, resulting in little progress in the mission to erase illiteracy.353 Health for women have
been improved in the aspect of life expectancy, information on reproductive health, and
methods to protect women from infectious diseases. It is explained that one obstacle is the gap
between rich and poor countries, where the mortality of infants and mothers is significant. It
has been more difficult to improve the health for women in developing countries as well as
spreading information about reproductive health.354 Violence against women has been
recognized as a human rights issue where States have increased their commitment in preventing
and punishing the act. Other efforts to abolish violence against women has taken place, for
347 Platform for Action (n 324), p. 177–179
348 Platform for Action (n 324), p. 180–181
349 ECOSOC Resolutions and Decisions of the Economic and Social Council, (United Nations Publications
Official Records of the Economic and Social Council, 1996, Supplement So. I.), E/1996/6, p. 20. P. 20–21
350 Beijing +5 (n 324), p. 202–203
351 Beijing +5 (n 324), p. 206–208
352 Ibid. p. 208–209, para. 7–8
353 Beijing +5 (n 324), p. 209–210, para. 9–10
354 Ibid. p. 210–213, para. 11–12
43
example traditional practices. Despite the efforts taken, women continue to be exposed to
violence; not handling the root causes hinders the elimination of violence. Furthermore, an
obstacle presented is that countries continue to afford violence against women as a private
matter, which also hinders abolishing it.355
In armed conflicts there have been achievements in seeing the impact it has on women.
Attention to stopping crimes against women have been defined as war crimes and crimes
against humanity within the Rome Statute of the International Court. The main obstacles have
been that peace is an important factor to equality, which is a nonexistent aspect in armed
conflicts. Another difficulty is the increase seen in violence against women within armed
conflicts.356 An achievement with women and the economy has been the gain of economic
autonomy, and aspects concerning family responsibilities. The difficulty seen is the wage gap
and some countries not allowing women to own property.357 Women in power and decision-
making has made progress by seeing women in higher positions and introducing programs for
women to gain knowledge of leadership. This have been weighed down by the traditional roles
of women and household responsibilities. Another issue has been the resources to advocate for
political careers.358 Concerning the Institutional mechanisms for the advancement of women
there have been increases in the visibility and status of the machineries. Another achievement
reported is that gender mainstreaming has been seen as a strategy to impact policies. Although,
achievements have occurred the resources have been an obstacle as well as the gender
stereotyping and the machineries, being stopped by structural and communication issues.359
There has been progress in prohibiting discrimination against women and women’s rights. This
can be seen in the implementation of CEDAW and in the increase in gender mainstreaming.
However, there have been difficulties in the work for human rights of women, which can be
seen in the goal for 2000 of ratification of CEDAW not being fulfilled. There are also
reservations made to the convention. Furthermore, there are still gender biases and failures to
respect rights and the dignity for women.360 There have been improvements of the gender
portrayal of women as well as women using media for empowerment. Despite the
improvements negative and degrading images are being issued through media leading to a
gender bias that limits the benefits for women.361 Achievements in women and the environment
can be seen in the projects that uses the knowledge of women, which promotes biodiversity.
There is a lack of awareness of the benefits of equality that promote environmental protection,
leading to women not being included in decision-making.362 The last area concerning the girl
child has achieved better opportunities for education. A change in the attention to health of girls
has also increased with their reproductive health as well as increasing the penalty for sexual
abuse of girl children. It has met with difficulties in negative stereotyping of girls and
355 Beijing +5 (n 324), p. 213–215, para. 13–14
356 Beijing +5 (n 324), p. 215–218, para. 15–19
357 Ibid. p. 218–219, para. 20–21
358 Ibid. p. 219–220, para. 22–23
359 Ibid. p. 220–221, para. 24–25
360 Ibid. p. 221–223, para. 26–27
361 Ibid. p. 223–224, para. 28–29
362 Ibid. p. 224, para. 30–31
44
insufficient resources to fully combat the issues. There is also despite achieving higher penalties
for abuse of girls there is an increase in the abuse.363
It is expressed in Beijing +5 that one issue that can be pinpointed as affecting the progress is
globalization which has affected the cultural values, lifestyles and communication. It has
brought opportunities for women but has also led to instability. The globalization has been a
culprit for privatization and loss of childcare facilities which creates challenges for women
entering the labor market364. Women are in a greater sense burdened with the responsibilities
to care for the family and there is a need for changing these stereotypical roles in society.365
The Beijing Declaration and Platform for Action is from 1995, but the 12 critical areas of
concern highlighted are still of concern in 2014. The foreword to the Beijing Declaration written
by the Secretary-General for the United Nations in 2014 explains the importance of
empowering women and reaching the Millennium Development Goals.366 In the introduction it
is confirmed that no country has achieved equality despite the Platform for Action being
adopted for 20 years.367 Every five years have included a review of the Beijing Declaration,
there was set to be one in 2020, however, it was suspended because of the Global Pandemic of
COVID-19. There is one set out for 2025 marking the thirtieth year since the adoption.368
3.5 Summary
The legal sources mentioned above are CEDAW and Istanbul Convention. The Beijing
Declaration and Platform for Action despite not being a legal source is important because it
determines the importance of hindering discrimination of women. CEDAW is the original
convention on the topic, and it prohibits discrimination despite this, reservations are constituted
on certain aspects of the convention. Istanbul Convention is a regional convention within
Europe to combat violence against women, working in both the public and private spheres. The
Beijing Declaration and Platform for Action is the result of the Fourth World Conference on
Women and establishes the importance of including women in all areas of society. All three
instruments declare the gravity of changing the stereotypical role of women and how women
are perceived. This will give rise to equality and non-discrimination of women.
363 Beijing +5 (n 324), p. 224–225, para. 32–33
364 Beijing +5 (n 324), p. 228, para. 39
365 Ibid. p. 226–231
366 Beijing Declaration (n 324), Foreword p.1
367 Beijing Declaration (n 324), p. 3
368 UN Women, CSW64 2020/ Beijing +25, (UN Women, 9 March 2020) accessed 4 February 2025
45
4. Analysis
4.1 Results
Among the sources of international law there are conventions, customary law and general law
principles.369 These are not the only sources of law because there are also peremptory norms of
general international law (jus cogens). The peremptory norms of general law are established
within the Vienna Convention article 53, but it is also recognized as having a hierarchy that is
superior to treaty law.370 In relation to the hierarchy the aspect of opinio juris is important to
consider, which is because this includes norms that have gained a customary law status in
international law. This derives from state practice and the psychological behavior that it is
considered law, which makes it opinio juris.371 The criteria for identifying a norm as jus cogens
are, an aspect of general international law and that it is recognized and accepted by the
community as a norm of jus cogens.372 These are derived from article 53 of the Vienna
Convention but is also established in case-law from the ICJ.373 It can be seen in Obligation to
Prosecute or Extradite, where it is explained that torture has been status as jus cogens based on
recognition and being a norm of general international law.374 In Armed Activities on the
Territory of the Congo (DRC v. Rwanda) this is further pointed out by the court.375 The
International Law Committee has investigated the concept of jus cogens and it is established
that it derives from being a norm of general international law as well as being recognized and
accepted.376
Another aspect that is important in relation to peremptory norms of general international law is
obligations erga omnes which is obligations that are responsibilities that are bestowed on all
states. This can also be derived from a case from the ICJ, in Barcelona Traction it is established
that it is two parts to the concept obligations that are owed between states and ones that are
owed to the international community as a whole.377 Although, obligations erga omnes are a
different concept it is related to jus cogens because of their similarities in that both are concepts
that relate to the international community.378
The prohibition of discrimination is different from the principle of non-discrimination in the
sense that the latter is connected to the principle of equality and the former is a prohibition on
its own.379 However, in all articles that brings up discrimination it is described as individuals
369 Statute of International Court of Justice (n 69), article 38
370 Thirlway (n 63), p. 177
371 Shaw (n 10), p. 63
372 Vienna Convention (n 81), article 53
373 Deng (n 101)
374 Obligation to Prosecute or Extradite (n 110), para. 99
375 Armed Activities on the Territory of the Congo (DRC v. Rwanda) (n 119), p. 32, para. 64–70
376 Second Report (n 129), p. 21, para. 42
377 Barcelona Traction (n 124), p. 32, para. 33–34
378 Thirlway (n 63), p. 166
379 Shaw (n 10), p. 255–258
46
are supposed to have rights without distinction of race, sex, age or religion.380 The standard
non-discrimination is that no human shall be treated differently than another. Unless it is
justified to differ in treatment this is because there are sometimes aspects that justify the
difference.381 It is further explained that the conditions for discrimination differ slightly in
international law and regional one, which can be seen in Europe where there is a distinction
made between direct and indirect discrimination.382 It is explained as direct discrimination
affecting one individual and indirect discrimination creating a situation where a person is
treated less favorably in comparison to another. This is discussed in the case C-157/15 G4S
Secure Solution and it is described that the individual in the case might have been indirectly
discriminated against.383 Discrimination is viewed differently in western countries and non-
western countries where rights also differ as described by AlBader and Chakraborty which both
explain that religion and cultural aspects are of importance in relation to discrimination as well
as rights.384
There are also multiple resolutions and other documents that are prohibiting discrimination
against women. It is described that women in armed conflicts are of importance to
understand.385 Another the importance of conventions to ensure equality and empowerment of
women.386 There are also ones that explains the inequalities and the violence against women
that is present within society.387
The specific convention CEDAW sets out to hinder discrimination against women and establish
equality between the genders. It is defined in the first article what discrimination against women
is, the following articles explains rights that are to be ensured for women.388 Article 28 entails
that reservations can be done in relation to CEDAW, which are not to conflict with the object.
India has for example, made a reservation to CEDAW.389 Another important aspect is article
29 that determines how disputes are to be settled which is through negotiations. This has been
brought before the ICJ once in the case of Armed Activities on the Territory of the Congo, where
it was concluded that it had not fulfilled the obligation to negotiate.390
The convention further establishes a way for monitoring the progress and implementation,
which is the Committee on Elimination of Discrimination against Women.391 This Committee
receives reports from the State Parties and make recommendations as for how the state parties
380 UN Charter (n 16), Universal Declaration of Human Rights (n 166), International Covenant on Civil and
Political Rights (n 170), International Covenant on Economic, Social and Cultural Rights (n 171), CERD (n
174), CEDAW (n 248), ECHR (n 177) and EU Charter (n 179)
381 Judge Tanaka Dissenting Opinion South West Africa (n 202), p. 305–307
382 Eurofond, Indirect Discrimination, (Eurofond, 3 December 2019) accessed 25 January 2025
383 C-175/15 G4S Secure Solutions, (n 197)
384 AlBader (n 225) and Chakraborty (n 227)
385 Resolution 1325 (n 212)
386 Resolution 26/5 (n 214)
387 Resolution 56/22 (n 216) and Resolution 2101 (n 220)
388 CEDAW (n 248), articles 1–15
389 Chakraborty (n 227), p. 46
390 CEDAW (n 248), article 29 and Armed Activities on the Territory of the Congo (n 119), para. 87–93
391 CEDAW (n 248), article 17
47
are to fulfill their obligations.392 Through the Optional Protocol that was adopted the Committee
are able to receive communications about violations made by states. It can be seen in
Communication 47/2012 in which Spain neglected their obligations to protect a woman from
domestic abuse and it resulted in the woman’s child being murdered.393 The Committee
recommended the Spain to fulfill their obligations and to compensate the woman.394
The Council of Europe Convention on preventing and combating violence against women and
domestic violence (Istanbul Convention) determines that it is to create a Europe free from
violence against women as well as domestic violence.395 It establishes that work to combat the
stereotypes and the social structures that entail violence against women is important. The
Istanbul Convention describes violence against women as a violation of human rights and
explains that it is a form of discrimination. The Istanbul Convention have been used in cases
by the European Court of Human Rights, where it has been established that states are not
effectively working to remove the stereotypes of women or ensure equality for women. This
can be seen in the cases Jurčić v. Croatia, Carvalho Pinto De Sousa Morias v. Portugal and
the combined cases of J.D. and A. v. The United Kingdom. 396 In all three of these cases the
Istanbul Convention is brought up and the aspects of stereotypes as well as gender equality.
The first two cases result in violation of article 14 of the ECHR while in the combined cases it
was not concluded as a violation of article 14 of ECHR.397 The Istanbul Convention has had
achievements but also challenges which can be seen in Resolution 2289 of the Parliamentary
Assembly of the Council of Europe. It is described that the Istanbul Convention has had a
positive impact, but the work has not yet been sufficient.398
Beijing declaration and Platform for Action was established through the Fourth World
Conference on Women, and it recognizes the importance of empowering women and working
towards equality.399 It establishes 12 critical areas where improvement is necessary to ensure
that women are empowered. These areas are the focus of the actions that are put forth in how
to work towards improvement. It is established that women need to be included in decision-
making areas of society, ensuring women’s education, inclusive healthcare and research of
women’s health, how women are affected by armed violence, these are amongst a few.400 There
are actions set for how to further empower women within these 12 areas, one is to allow girl
children to go to school, another to work towards changing the stereotypes of women. It is
important as is mentioned multiple times in the Platform for Action that there needs to be a
gender perspective implemented in all 12 areas.401 The Beijing Declaration and Platform for
392 CEDAW (n 248), articles 18–21
393 Communication No. 47/2012 (n 269)
394 Ibid. p. 18
395 Istanbul Convention (n 282), preamble
396 Jurčić v Croatia (n 300), Carvalho Pinto De Sousa Morias v Portugal (n 302), and J.D. and A. v The United
Kingdom (n 305)
397 Jurčić v Croatia (n 300), Carvalho Pinto De Sousa Morias v Portugal (n 302), and J.D. and A. v The United
Kingdom (n 305)
398 Resolution 2289 (n 313)
399 Beijing Declaration and Platform for Action (n 324), p. 8–9
400 Beijing Declaration and Platform for Action (n 324), p. 31
401 Beijing Declaration and Platform for Action (n 324), p. 32–176
48
Action set a goal for being fully implemented in 2000, which did not occur.402 It is explained
in the achievements and challenges brought forth in the report from 2000, Beijing +5 that the
goal was not fulfilled. One major issue was globalization that created further inequalities as
well as bringing difficulties for women to work and handle responsibilities within the family.403
Its actions are still applicable in recent times as well as not fully implemented by countries.
There are conferences every five years to oversee the implementation of the Beijing Declaration
and Platform for Action and the actions that were to be taken.404
4.2 Discussion
It has previously been suggested that gender equality become a jus cogens norm by Askari who
explained that this would lead to less discrimination, it did not happen. Other suggestions were
made of how to change the legal system to lessen discrimination, for example that language
creates discrimination of women and that there is a gender bias. Another aspect that Askari
highlights is the division of private and public spheres which leads to discrimination.405 These
issues are of importance when discussing if gender discrimination can become a peremptory
norm since they highlight the difficulties women face. It is expressed that a gender bias is visible
in what norms have already achieved such a status.406 Askari describes that the generations of
rights create a hierarchy between the genders and the priority of rights, because of the rights
affecting men and women differently.407 It is also explained that this would be a strategy to
ensure that stereotypes and gender-based violence cannot be discarded.408
For a norm to become a peremptory norm it needs to be a norm of general international law, as
well as being recognized and accepted by the international community as a whole. In the case
of discrimination against women it is recognized as a violation of human rights, and it has been
reaffirmed as a goal to work towards eradication. The aspect prohibition of discrimination needs
to be made universal for women to not be discriminated against. It is not demonstrated in the
case-law that discrimination of women is recognized or accepted as a norm that is of the status
of a peremptory norm.409 The prohibition of racial discrimination has been accepted through
the prohibition of apartheid that has achieved status as jus cogens. This is in relation to race not
gender. There is not enough recognition to add the aspect of gender as a peremptory norm.410
For the prohibition of discrimination based on gender to gain status as a jus cogens norm there
needs to be more case law recognizing and accepting its status.411 This seems challenging
considering the state of discrimination of women in Afghanistan, where women’s opportunities
402 Beijing Declaration and Platform for Action (n 324), p. 177
403 Beijing +5 (n 324), p. 226–231
404 Beijing Declaration and Platform for Action (n 324), p. 1–3 and UN Women CSW64 2020/ Beijing +25 (n
349)
405 Askari (n 232), p. 11–24
406 Askari (n 232), p. 11–24
407 Askari (n 232), p. 26–28
408 Askari (n 232), p. 42
409 Forth Report (n 139), p. 55, para.123
410 Forth Report (n 139), p. 60–61, para.135
411 Forth Report (n 139), p. 60–61, para.135
49
are removed.412 Another example of complexities lies in the actions of the Islamic Republic of
Iran where women could not protest peacefully or the aspect of the impartial convictions that
were decided on.413
The fact that CEDAW has only been used once in the ICJ is worrying despite having the
provisions that explain why it is important to abolish discrimination against women. It is further
important in relation to what is happening in the Islamic Republic of Iran where restrictions are
being made based on gender.414 This can also be seen in Afghanistan where distinction,
exclusion and restriction have been orchestrated on the basis of gender thus leading to
discrimination.415 This should be brought before the ICJ, however, there is a necessity for
negotiations which there are no records of.416 Despite ratifying CEDAW discrimination of
women is occurring as can be seen in Afghanistan.417
There is a need to hinder reservations that conflict with CEDAW, which has never been
disputed. India as described made a reservation against the cultural aspects in the Convention,
which goes against the object in the Convention since it sets out to change the traditional role
of women.418 Another aspect that shows this is the effects of the Protests in the Islamic Republic
of Iran where women are being denied their right to choose religion.419 It can further be seen in
Afghanistan where women are no longer allowed to move freely outside without a male
chaperon, or girls being denied education.420 This is despite the extensive recommendations
and conventions that have been established to empower and ensure equality for women.421
Another important aspect is to change the stereotypes and gender perspectives that are present
in society. The importance of this can be found in CEDAW, Istanbul Convention and the
Beijing Declaration where these aspects are highlighted.422 It can be seen in the case law from
Europe and the Communication from the Committee of the Elimination of All Forms of
Discrimination against Women.423 In the cases Jurčić v. Croatia and Carvalho Pinto De Sousa
Morias v. Portugal it is visible how the perspectives of women as well as pregnancy can affect
how the national courts rule. These cases were brought before a European court that established
discrimination having occurred based on Jurčić having been let go due to pregnancy symptoms
412 Wigard (n 55)
413 UNGA Human Rights Council. ‘Report of the independent international fact-finding mission on the Islamic
Republic of Iran*’. UN Doc. A/HRC/55/67, 2 February 2024. p. 3 and 9, para. 15–55
414 UNGA Human Rights Council. ‘Report of the independent international fact-finding mission on the Islamic
Republic of Iran*’. UN Doc. A/HRC/55/67, 2 February 2024. And CEDAW (n 248), article 1
415 Wigard (n 55) and CEDAW (n 248), article 1
416 CEDAW (n 248), article 29
417 UN Treaty Body Database, ‘View the ratification status by country or by treaty,’ <
https://tbinternet.ohchr.org/_layouts/15/TreatyBodyExternal/Treaty.aspx?Treaty=CEDAW&Lang=en> accessed
19 February 2025
418 Chakraborty (n 227), p. 46
419 UNGA Human Rights Council. ‘Report of the independent international fact-finding mission on the Islamic
Republic of Iran*’. UN Doc. A/HRC/55/67, 2 February 2024.
420 Wigard (n 55)
421 CEDAW (n 248), Istanbul Convention (n 282) and Beijing Declaration and Platform for Action (n 324)
422 CEDAW (n 233), Istanbul Convention (n 282) and Beijing Declaration (n 324)
423 Shaw (n 10), p. 280–282
50
and Carvalho Pinto De Sousa Morias had undergone a surgery that left her with pain. In both
cases it is explained that Croatia and Portugal have failed to change the stereotypical view of
women.424 In the Communication before the Committee of the Elimination of All Forms of
Discrimination against Women a woman has filed a complaint stating how Spain has neglected
to protect her and her daughter from domestic abuse, which led to her daughter’s murder. It is
expressed how Spain has ignored the woman’s explanations and thus violated her rights. Spain
has neglected to use a gender perspective in the case.425
It is not solely in the international community discrimination occurs it is in regional
communities as well. As Askari described to eliminate discrimination based on gender on all
levels a change is necessary. The sole change that will affect all planes is for the prohibition of
gender discrimination to achieve jus cogens status.426 Prohibition of gender discrimination
achieving status as jus cogens would increase the equality between men and women. It would
as a peremptory norm be recognized as a fundamental value for the international community
which would make violations of women’s rights a right from which non-derogation is
permitted.427 It would increase protection of women in every aspect of human rights and
reservations that are incompatible with the objections of CEDAW would be void.428 Another
effect would be that the actions taken by Afghanistan and the Islamic Republic of Iran regarding
the rights of women would not be allowed.429
Although, norms do obtain status as jus cogens it is often debated beforehand as can be seen
for torture, which was recognized as such after being a customary rule.430 For the norm to be
considered a customary rule it needs to have opinio juris and that includes the psychological
aspect of the behavior being wrong.431 Despite the rule becoming jus cogens it will not expel
violations of the norms, as can be seen with torture. Reports from the Islamic Republic of Iran
were made of torturing women after the protests in 2022, directly showing discrimination of
women.432
Despite the importance of women’s rights and the prohibition of gender discrimination, the
aspect of it becoming a peremptory norm is not achievable right now, because there is not
enough state practice or acceptance in accordance with it gaining that status.433 There is also a
difference in what discrimination includes as can be seen in India’s reservation to CEDAW.434
Religion, cultural and traditions are factors that implicate the empowerment of women’s rights.
424 Jurčić v Croatia (n 300), and Carvalho Pinto De Sousa Morias v Portugal, (n 302)
425 Communication No. 47/2012 (n 269)
426 Askari (n 232), p. 42
427 Forth Report (n 139), p. 60–61, para.135
428 Vienna Convention (n 81), article 53 and CEDAW (n 248), article 28
429 Wigard (n 55) and UNGA Human Rights Council. ‘Report of the independent international fact-finding
mission on the Islamic Republic of Iran*’. UN Doc. A/HRC/55/67, 2 February 2024.
430 Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J. Reports
2012, p. 422. Para. 99
431 Shaw (n 10), p. 73
432 UNGA Human Rights Council. ‘Report of the independent international fact-finding mission on the Islamic
Republic of Iran*’. UN Doc. A/HRC/55/67, 2 February 2024. P. 7
433 Forth Report (n 139), p. 60–61, para.135
434 Chakraborty (n 227), p. 46
51
This is because it is given primacy over other rights.435 An example of religion being given
primacy is the Islamic Republic of Iran, where it is mandatory to follow the aspect of a women
wearing hijab.436
Through the results described religion and cultural aspects affect the empowerment and
achievement of equality. This is hindering the prohibition of gender discrimination as well as
creating a situation where these issues can be recognized as a peremptory norm.437 History
shows that a perspective can change through challenging what is known, as was done with the
natural law perspective of human rights. This led to the evolvement of how it is described and
its definition.438 This can not only be derived from theories of law but can also be seen in the
article by Askari, where it is explained that for change to ensure the issues need to be brought
forth and it cannot be change merely through law.439 There needs to be a change in the
recognition and behavior of states for elimination of discrimination to be possible.
The results of this thesis are limited to what can be said of prohibition of gender discrimination
being recognized as peremptory norms in the global community today. The necessity to
recognize this as having such status requires case-law and the will to create a wider protection
for women.440 This is going to take time considering there being approximately 153 countries
with discriminatory laws and the progress with gender equality is taking longer than
intended.441 This can be seen in the abolishing of protection in Afghanistan and the restrictions
women face in the Islamic Republic of Iran.442
If the prohibition of gender discrimination achieves status as a peremptory norm it will not be
automatically and it will not immediately eliminate gender discrimination. The status would
create an incentive for change as well as emphasize that women’s rights have a fundamental
value.443 It will showcase the raison d’être of CEDAW and how the ideals are common to all
states.444 An obstacle for this to occur is the difference in western and non-western perspectives
on rights. Arguments against recognizing it as a jus cogens norm is how it might force a
perspective of what a right is onto a country with a diverging view, thus creating conflicts.445
For the prohibition of gender discrimination to become a jus cogens norm it is important to
include all women and perspectives, which will need to be done by changing stereotypes.446
435 Thirlway (n 63), p. 204–207
436 UNGA Human Rights Council. ‘Report of the independent international fact-finding mission on the Islamic
Republic of Iran*’. UN Doc. A/HRC/55/67, 2 February 2024. P. 3
437 Chakraborty (n 227), p. 51–53 and AlBader (n 225), p. 3
438 Shaw (n 10), p. 242–244
439 Askari (n 232), p. 42
440 Forth Report (n 139), p. 60–61, para.135
441 UN Sustainable Development Goals (n 3) and Oxfam International, ‘Gender justice and women’s rights’ (n 2)
442 Wigard (n 55) and UNGA Human Rights Council. ‘Report of the independent international fact-finding
mission on the Islamic Republic of Iran*’. UN Doc. A/HRC/55/67, 2 February 2024.
443 Askari (n 232), p. 41–42
444 Reservations to the Convention on Genocide, Advisory Opinion: I.C.J. Reports 1951, p. 15. P. 23
445 Chakraborty (n 227), p. 51–53
446 Chakraborty (n 227), p. 53–54 and Askari (n 232), p. 41–42
52
As the starting quote by Michelle Obama says, “No country can ever truly flourish if it stifles
the potential of its women and deprives itself of the contributions of half its citizens”447. It is
important to create a society where all humans can flourish that is built on equality and where
no gender discrimination is allowed. It is continuing to be of utmost importance to empower
and include women, therefore I believe it would be a step in the right direction to make non-
discrimination of women a peremptory norm of general international law.
4.3 Final Reflections and Further Research
The research has brought insight of how complex the subject of prohibition of gender
discrimination is and how different interests affect change. It is difficult to eliminate
discrimination and adhere to religious as well as cultural aspects at the same time. Difficulties
does not mean impossible but that it is going to take time. There are other topics that would be
interesting to research that does not have room in this thesis that could be for future projects.
One is what effect it would have for children’s rights to become a jus cogens norm. Another
topic is how equality affects the work towards a sustainable environment, which would be
interesting to research both in a historic aspect and how it would lead to a better future. It could
include aspects of environmental sustainability but also economic sustainability.
It would also be intriguing to further investigate the comparative aspects of the discrimination
of women in different countries. It could be done in relation to multiple countries, with
differences in religion and culture, which would create a wider understanding to how
discrimination of women is viewed. There has not been enough space within this thesis, thus
not having been researched to the extent that is possible.
447 Celia Fernandez, ‘34 Michelle Obama Quotes that Will Inspire You to Live Your Best Life’ (Oprah Daily, 8
February 2022) < www.oprahdaily.com/life/relationships-love/g25438427/michelle-obama-quotes/> accessed 21
February 2025
53
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Charter of the United Nations and Statute of the International Court of Justice, San
Francisco, 24 October 1945, United Nations.
Charter of the Fundamental rights of the European Union, 7 December 2000, OJ 2000/C
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Convention of Elimination of All Forms of Discrimination Against Women (adopted 18
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