PUBLIC LAW AND LEGAL THEORY RESEARCH PAPER SERIES

PAPER NO. 539 MARCH 5, 2017

CEDAW IN NATIONAL COURTS: A CASE STUDY IN

OPERATIONALIZING COMPARATIVE INTERNATIONAL
LAW ANALYSIS IN A HUMAN RIGHTS CONTEXT
CHRISTOPHER MCCRUDDEN

ANTHEA ROBERTS, PAUL STEPHAN, PIERRE-HUGUES VERDIER, AND MILA VERSTEEG

(EDS), COMPARATIVE INTERNATIONAL LAW (OXFORD UNIVERSITY PRESS,
OXFORD, FORTHCOMING)
&
QUEEN’S UNIVERSITY BELFAST LAW RESEARCH PAPER, FORTHCOMING

THE SOCIAL SCIENCE RESEARCH NETWORK ELECTRONIC PAPER COLLECTION:

HTTP://SSRN.COM/ABSTRACT=2927707

Electronic copy available at: https://ssrn.com/abstract=2927707

 [Forthcoming in Anthea Roberts, Paul Stephan, Pierre-Hugues Verdier, and Mila Versteeg (eds ),
COMPARATIVE INTERNATIONAL LAW (Oxford University Press, Oxford, In Press)]

CEDAW in National Courts: A Case Study in Operationalizing Comparative

International Law Analysis in a Human Rights Context

Christopher McCrudden*

I. INTRODUCTION

This article is the second of a trilogy of articles and chapters discussing various aspects
of a comparative international law study I undertook of national judicial use of the Convention on
the Elimination of All Forms of Discrimination Against Women, 1 one of the key human rights
covenants that go to make up what has been called the international Bill of Rights.
In the first part of my CEDAW trilogy,2 I presented an analytical and conceptual
examination of the value to legal scholarship that might be added by a comparative international
human rights law analysis, compared to previous international and comparative constitutional law
approaches. It concludes that the emerging field of international comparative law does, indeed,
have a (limited) role to play as sketched out previously, one that is both unique and (strangely)
somewhat neglected until recently in the human rights field. I suggest that the worked example of
CEDAW has raised interesting lines for empirical analysis, 3 and additional perspectives, 4 which
are sufficient to justify comparative international human rights law being regarded as likely to give

* F.B.A. Professor of Human Rights Law, Queen’s University Belfast; William W. Cook Global
Professor of Law, University of Michigan Law School. This chapter was written whilst I was a
Fellow of the Wissenschaftskolleg zu Berlin (2014-15). I would like to thank Veronika Fikak,
Benedict Kingsbury, Christoph Möllers, Brendan O’Leary, Daniel Peat, Steve Ratner, Anthea
Roberts, Mila Versteeg, participants of the Sokol Colloquium on Comparative International Law,
participants at a seminar at Humboldt University, and several anonymous referees, for helpful
comments and suggestions on earlier drafts.
1
Dec. 18, 1979, 1249 U.N.T.S. 13 [hereinafter CEDAW or the Convention].
2 Christopher McCrudden, Comparative International Law and Human Rights: A Value-Added

Approach (this volume).

3
For example, I have not sought here to relate my findings to the extensive international relations
literature on the implementation of international law. See, e.g., INTERDISCIPLINARY PERSPECTIVES
ON INTERNATIONAL LAW AND INTERNATIONAL RELATIONS: THE STATE OF THE ART (Jeffrey L. Dunoff
& Mark A. Pollack eds., 2013).
4
Olga Frishman & Eyal Benvenisti, National Courts and Interpretative Approaches to International
Law, in THE INTERPRETATION OF INTERNATIONAL LAW BY DOMESTIC COURTS: UNIFORMITY,
DIVERSITY, CONVERGENCE 317 (Helmut Philipp Aust & Georg Nolte eds., 2016).

Electronic copy available at: https://ssrn.com/abstract=2927707

 2

rise to insights that might not otherwise have emerged, and therefore to be considered as an
approach worth pursuing in the future.
In the third article of my CEDAW trilogy, already published in the American Journal of
International Law (AJIL), I tackled the difficult question of how to explain the pattern of domestic
judicial use that I had identified, and I suggested explanations for this pattern. 5 My tentative
conclusion was that what similarities and differences were observable resulted, at least in part,
from the functions that international human rights law fulfills in domestic jurisdictions, and that
these functions may differ from the role that international human rights law plays at the
international level. It was suggested that the observable pattern of references to CEDAW in
national level courts results, to a significant degree, from the combination of the four elements
involved in comparative international human rights law: that it is international law; and that it
concerns human rights; and that it is law; and that it is being applied domestically. In this article,
I referred to both the methodology I used, and the findings of the study on which this analysis was
based, in summary form, promising a fuller account in this book.
This chapter is the bridge between the first and the third parts of the CEDAW trilogy,
fulfilling the promise in my AJIL article to explain my methodology and my basic findings in more
detail. The chapter is structured as follows. Part II presents a brief outline of CEDAW in order to
locate what follows. Part III provides a detailed analysis of the methodology I adopted in
undertaking the study, including a discussion of the sources I used in compiling a detailed dataset
of judicial opinions and how I formulated the questions used to analyze this dataset. Part IV
presents the basic findings that resulted from this analysis. Part V concludes. There are, in
addition, two appendices. Appendix A sets out the electronic and other databases and datasets
from which my dataset of domestic cases citing CEDAW was drawn. Appendix B provides
citations for each of the cases in the dataset, by jurisdiction. 6

II. OUTLINE OF CEDAW

The Convention (which goes under the acronym of CEDAW —confusingly because the
Committee that oversees its implementation also goes under this name 7) was agreed in New York

5
See Christopher McCrudden, Why Do National Court Judges Refer to Human Rights Treaties?
A Comparative International Law Analysis of CEDAW, 109 AM. J. INT’L L. 534 (2015).
6
In order to shorten the footnotes and avoid repetition, cases are cited using their number in
Appendix B rather than the full citation.
7
For an overview of the Committee’s work, see Andrew Byrnes, The Convention and the
Committee: Reflections on Their Role in the Development of International Human Rights Law and
as a Catalyst for National Legislative and Policy Reform, 1-12 (March 2010) (Presented at the

Electronic copy available at: https://ssrn.com/abstract=2927707

 3

on the 18 December 1979. The Convention was opened for signature at United Nations
Headquarters on 1 March 1980, and came into force on 3 September 1981. There are currently
188 parties to the Convention and 99 signatories, making it one of the most widely ratified
international human rights conventions.
The Convention consists of a preamble and thirty articles, defining what constitutes
discrimination against women, and the circumstances in which it is prohibited under the
Convention. Discrimination against women is defined as “… any distinction, exclusion or
restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the
recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of
equality of men and women, of human rights and fundamental freedoms in the political, economic,
social, cultural, civil or any other field.” 8
States that are parties to the Convention commit themselves to undertake a series of
measures to end this discrimination against women in all its forms. This includes a duty to
incorporate the principle of equality of men and women into their legal system, abolish all
discriminatory laws, and adopt appropriate ones prohibiting discrimination against women. States
also commit to establish tribunals and other public institutions to ensure the effective protection
of women against discrimination, and to ensure the elimination of all acts of discrimination against
women by persons, organizations or enterprises. The Convention seeks to ensure equality
between women and men through ensuring women’s equal access to, and equal opportunities in,
political and public life—including the right to vote and to stand for election—as well as in the
areas of education, health and employment. States parties agree to take all appropriate
measures, including legislation and temporary special measures, so that women can enjoy all
their human rights and fundamental freedoms. The Convention affirms the reproductive rights of
women, and identifies family relations as a key area in which women’s equality must be secured.
It provides women with rights to acquire, change or retain their nationality and the nationality of
their children. States parties also agree to take appropriate measures against all forms of
trafficking in women and exploitation of women.
Countries that have ratified or acceded to the Convention are committed to submit national
reports to the CEDAW Committee, at least every four years, on measures they have taken to
comply with their treaty obligations. This originally provided the principal means of attempting to
ensure compliance. Since it initially came into force, however, an Optional Protocol was adopted

Commission on the Status of Women, 54th session),

http://www.un.org/womenwatch/daw/beijing15/interactive_panel_III/Byrnes%20paper.pdf.
8
CEDAW, art. 1.

Electronic copy available at: https://ssrn.com/abstract=2927707

 4

on 6 October 1999, 9 and opened for signature by any State that has signed, ratified or acceded
to the Convention at United Nations Headquarters in New York from 10 December 1999. States
that ratify or accede to the Optional Protocol (currently 105 States) agree to individual or group
“communications” against that State Party being made to the CEDAW Committee. In addition,
States have agreed to permit the CEDAW Committee to initiate inquiries into compliance with the
Convention by that State.

III. METHODOLOGY

In this part, I discuss the methodology I adopted, explaining several choices that were
made, including my focus on the higher judiciary, the compilation of a dataset of domestic
judgments citing CEDAW and the limits of this dataset for my subsequent analysis, and how I
used existing CEDAW scholarship, and literature concerning the domestic incorporation of
international law in Europe in order to help define the issues that would form the basis for drawing
up the findings that are presented in Part IV.

Focus on the Higher Judiciary

Building on anthropological work on human rights, 10 I sought, initially, to develop an

analytical framework for studying domestic judicial interpretations of CEDAW. Judges have
frequently been thought to serve as one set of the critical “translators” 11 of international human
rights in the domestic context. Such judicial decisions are, at least in theory, examples of the
domestic appropriation of international human rights, and one potentially important process by
which such rights are remade in the vernacular. In doing so, judges act as one of the sets of actors
“in the middle” who translate the discourses and practices from the arena of international law and
legal institutions to specific situations. Sally Merry regards these translators as a key dimension
of the process of how international human rights law is incorporated into domestic law. I restricted

9
Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against
Women, Dec. 22, 2000, 2131 U.N.T.S. 83.
10
See Sally Engel Merry, Transnational Human Rights and Local Activism: Mapping the Middle,
108 AM. ANTHROPOLOGIST 38 (2006).
11
See Susanne Zwingel, How Do Norms Travel? Theorizing International Women’s Rights in
Transnational Perspective, 56 INT’L STUD. Q. 115, 124 (2012). There is an extensive literature in
which judges have been seen as translators, at least since the pathbreaking work of JAMES BOYD
W HITE, JUSTICE AS TRANSLATION: AN ESSAY IN CULTURAL AND LEGAL CRITICISM (1990). Judges are
not the only translators of international human rights norms, of course. See Steven R. Ratner,
Does International Law Matter in Preventing Ethnic Conflict?, 32 N.Y.U. J. INT’L L. & POL. 591,
623 (2000).
 5

my analysis to the interpretative functions of the higher judiciary, as opposed to other domestic
actors, given that information concerning their activities is somewhat easier to obtain, because
the decisions of the higher courts are usually presented in the form of accessible written decisions.
Higher-level courts were the target also because it is they which produce written decisions that
find their way onto searchable databases. 12
Compiling Domestic Jurisprudence Relating to CEDAW
Given this decision to focus on the higher judiciary, one of the key tasks in embarking on
this case study was to compile a list of domestic jurisprudence referencing CEDAW. This did not
prove to be an easy task. There is no one repository of such jurisprudence. Instead, several
sources, mostly electronic databases, were scoured for such references (Appendix A lists these
sources). The resulting list consists of 32613 national judicial decisions across 55 jurisdictions in
which CEDAW was referred to in the reported decision (Appendix B contains a complete list of
the cases.) For the purposes of analysis, all the cases mentioned below are drawn from this
dataset; no case has been considered that is not included in this list. The purpose of the list is,
within certain constraints, to illustrate when CEDAW is referred to in higher-level domestic courts,
in order to provide a basis for considering such questions as why CEDAW is referred to, and
whether there are significant differences between states in such usage. I read the judgments of
most of the cases listed, in which judgments were available on-line. A few were unavailable, and
I relied instead on secondary accounts, but this was in a small minority of cases. The discussion
of the cases is, therefore, primarily based on my own, rather than on others’ reading of these
cases.
The method for selecting cases can be described as “convenience sampling.” 14 As
Katerina Linos suggests, this has the disadvantage of being the “least rigorous of sampling
methods”, and the results reported below need to be read in light of this caveat. 15 Nevertheless,
whilst acknowledging limitations, my approach is broader that is often used comparative legal
analysis, since I go beyond the analysis of a handful of well-known cases arising from a select

12
A preliminary assessment of a selection of national CEDAW reports was conducted in order to
test whether a systematic analysis of all national CEDAW reports should be conducted. My
assessment was that a full analysis would not be likely to add significantly to the identification of
cases, using these other sources.
13
In my AJIL article, I mistakenly specified that there were 325 cases, which did not take into
account an additional Japanese case that was drawn to my attention whilst the article was in
proof. See McCrudden, supra note 5.
14
Katerina Linos, How to Select and Develop International Law Case Studies: Lessons from
Comparative Law and Comparative Politics, at [___] (this volume).
15
Id. at [___].
 6

few countries. One of the common problems in convenience sampling (a focus on high-profile
examples of disagreement) is minimized, even if not eliminated. My more thorough comparative
approach is liable to yield examples of less dramatic agreement and disagreement.
Cases were drawn from 55 states. States from each of the major legal families were
included (such as common law, civil law, Islamic). States were included which are traditionally
considered as monist as well as dualist countries, and many that straddle the divide. There are
states that are clearly “developed” countries, and countries that are equally clearly “developing”
countries. There are states that are federal states, as well as states with a strong central
government and no federal distribution of powers, and states that are members of the EU and
NAFTA. There are states that are parties to well-developed regional human rights conventions
(such as the European Convention on Human Rights), and states that are not.
All in all, it is suggested that the list of states included could fairly be said to cover a range
of very different countries (when considered against criteria often used in comparative legal
analysis). There is, however, a significant bias towards those domestic courts whose judgments
are included in digital databases. There is also a bias towards English-language sources, but I
have sought to counter this by searching some non-English language sources myself, using
appropriate search terms. In the case of Russia, China, and Japan, I relied on searches carried
out for me by legal scholars from these jurisdictions. 16
The list I compiled does not include all cases that are known to me referencing CEDAW
in judicial tribunals. Several criteria were used to limit inclusion on the list. As mentioned above,
the cases are overwhelmingly drawn from what might be called the superior courts in the judicial
hierarchy of the State concerned, and not from lower courts or other adjudicatory bodies. 17 There
are, for example, many cases in Australia in which various lower tribunals dealing with refugee
claims have referred to CEDAW, but these have not been included as there is sufficient evidence
available in the Australian superior appellate courts to illustrate this practice. Another criterion
used to limit inclusion in the list is that where a tribunal has referred to CEDAW in a particular
type of case (say, employment disputes) for a particular reason (say, because the preamble of
the legislation in issue refers to CEDAW), only a selection of such cases is included to illustrate
this use, rather than including all such cases. In other respects, the types of tribunals included in
the list are diverse, including Conseil d’Etat-type bodies, constitutional courts, supreme courts,

16
Several colleagues also assisted in attempting to locate relevant case law in Japan, the
People’s Republic of China, and Russia. I am exceptionally grateful to Gleb Bogush, Akiko Ejima,
Nico Howson, Benedict Kingsbury, Mark West, and Alex X. Zang.
17
Sometimes that required a judgment call, and the default position was to include rather than
exclude. See, e.g., App. B No. 11, App. B No. 202.
 7

and labor courts. My focus on the higher courts is not unproblematic. Concentrating on the
superior courts makes sense in systems with centralized judicial review, but where there is
decentralized judicial review in place, it is probably less useful.
The dataset contains cases in which CEDAW is cited in the reported judgments of the
superior courts. This is a significant limitation in several respects. First, although I consider that
the data set is likely to contain a good part of the universe where CEDAW was cited, by definition
it does not include cases in which CEDAW could have been considered but was not. The fact that
some courts, as we shall see, include summaries of the arguments of lawyers before the court,
which sometimes show that CEDAW was argued but not cited by the court, is useful but does not
fill this gap. Second, it means that those jurisdictions in which the practice is not to cite such
sources in the written opinion are not considered. 18 It is likely, as a result, to underestimate the
extent to which arguments based on CEDAW were considered by judges. There are, as a result,
some jurisdictions, notably China, where no judgments citing CEDAW were identified. This is not
to say that CEDAW had no effect on the judiciary in these jurisdictions, of course, only that there
was no public acknowledgement of CEDAW by these courts. Third, the effect of using citation of
CEDAW as the key variable means that those states that conform more to the practice of citing
such sources (such as common law courts) will be over-represented, even among the universe
of jurisdictions in which CEDAW is cited at all. Fourth, cases involving CEDAW directly or
indirectly that are dealt with in tribunals or by agencies outside the ordinary courts will be under-
represented, as is the case, for example, with regard to Norway. 19
The dataset comprises cases that involve a wide variety of different subject areas. There
are, for example, cases dealing with affirmative action, electoral law and political party activity,
women’s health and bodily integrity (including issues such as female genital cutting), civil
procedure, ability to enter and remain in a state other than one’s own (including issues such as
refugee status, immigration, and deportation), rape and other forms of criminal sexual assault,
children’s rights and child custody issues, sexual harassment, marriage and family relationships,
employment, social security, land ownership and inheritance, abortion and contraception,
pregnancy and maternity, violence against women, and customary law and religious practices.

18
Scholarly literature on this is thin, but for a recent attempt to explain why courts may not cite
CEDAW in the Egyptian context, see JASMINE MOUSSA, COMPETING FUNDAMENTALISMS AND
EGYPTIAN W OMEN’S FAMILY RIGHTS: INTERNATIONAL LAW AND THE REFORM OF SHARĪ’A-DERIVED
LEGISLATION 242 (2011) [hereinafter COMPETING FUNDAMENTALISMS].
19
Anne Hellum, Making Space and Giving Voice: the CEDAW in Norwegian Law, in W OMEN’S
HUMAN RIGHTS: CEDAW IN INTERNATIONAL, REGIONAL AND NATIONAL LAW 588, 618-9 (Anne
Hellum & Henriette Sinding Aasen eds., 2013) [hereinafter W OMEN’S HUMAN RIGHTS].
 8

Analyzing CEDAW’s Domestic Jurisprudence: Drawing on CEDAW Scholarship to Help

Define the Issues

To my knowledge, no previous attempt has been made to develop a comparative analysis

of CEDAW’s domestic judicial interpretation across this broad swath of jurisdictions. A few global
surveys of selected domestic CEDAW jurisprudence have been conducted, 20 sometimes as part
of a larger exercise concerning the domestic judicial use of international human rights
instruments, but none have so far engaged with the range of domestic judicial materials identified
for this Article.21 My analysis was aided, however, by the burgeoning academic literature on the
use of CEDAW at the national level that falls short of the type of more comprehensive comparative
approach attempted here. This literature is of four main types.
There is, first, analysis of national judicial implementation of CEDAW in particular states,
which may be a generalized analysis of judicial approaches to CEDAW in that state, or
concentrated on a particular issue in which CEDAW has been significantly involved at the judicial
level. Discussion of one or other type was found on a significant number of states (twenty-two)
that have ratified CEDAW: Malaysia, 22 Austria,23 Sri Lanka,24 Switzerland,25 Indonesia,26

20
See, e.g., Andrew C. Byrnes & Marsha Freeman, The Impact of the CEDAW Convention: Paths
to Equality (U. N. S. Wales Law Research Paper No. 2012-7),
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2011655; Andrew Byrnes, The Convention
and the Committee: Reflections on Their Role in the Development of International Human Rights
Law and as a Catalyst for National Legislative and Policy Reform (2010),
http://www.un.org/womenwatch/daw/beijing15/interactive_panel_III/Byrnes%20paper.pdf.
21
See, e.g., Antonios Tzanakopoulos, Int’l L. Ass’n Study Group on Principles on the
Engagement of Domestic Courts with International Law: Preliminary Report (2014); Int’l L.
Ass’n, Comm. on Int’l Hum. Rts. L. & Prac., Interim Report on the Impact of the Work of the
United Nations Human Rights Treaty Bodies on National Courts and Tribunals (2002); Int’l L.
Ass’n , Comm. on Int’l Hum. Rts. L. & Prac., Final Report on the Impact of Findings of the
United Nations Human Rights Treaty Bodies (2004).
22
See Jaclyn Ling-Chien Neo, Calibrating Interpretive Incorporation: Constitutional Interpretation
and Pregnancy Discrimination Under CEDAW, 35 HUM. RTS. Q. 910 (2013).
23
See Rosa Logar, Die UNO-Frauenrechtskonvention CEDAW als Instrument zur Bekämpfung
der Gewalt an Frauen: zwei Beispiele aus Österreich, 1 FRAUENFRAGEN 22 (2009).
24
See Savitri Goonesekere, Gender-based Violence: The Response of the Sri Lanka Legal
System, in STRUGGLE FOR GENDER JUSTICE: JUSTICE SUNANDA BHANDARE MEMORIAL LECTURES
71, 72 (Murlidhar C. Bhandare ed., 2010).
25
See Regula Kägi-Diener, Die Bedeutung internationaler Diskriminierungsverbote,
insbesondere von CEDAW, für die schweizerische Rechtsprechung, 1 FRAUNENFRAGEN 42
(2009).
26
See Sharon Bessell, Increasing the Proportion of Women in the National Parliament:
Opportunities, Barriers and Challenges, in PROBLEMS OF DEMOCRATISATION IN INDONESIA:
ELECTIONS, INSTITUTIONS AND SOCIETY 219, 232-35 (Edward Aspinall & Marcus Mietzner eds.,
 9

2010) (on Constitutional Court decisions regarding quotas for women in elections); ZIBA M IR-
HOSSEINI & VANJA HAMZIĆ, CONTROL AND SEXUALITY: THE REVIVAL OF ZINA LAWS IN MUSLIM
CONTEXTS 62-63 (2010); DONALD L. HOROWITZ, CONSTITUTIONAL CHANGE AND DEMOCRACY IN
INDONESIA 253-54 (2013).
 10

Australia,27 Norway,28 France,29 Zimbabwe,30 Netherlands,31 United Kingdom,32 Pakistan,33

Egypt,34 India,35 Nepal,36 Nigeria,37 South Africa,38 Colombia,39 Costa Rica,40 Guatemala,41

27
See Andrew Byrnes, The Implementation of the CEDAW in Australia: Success, Trials,
Tribulations and Continuing Struggle, in W OMEN’S HUMAN RIGHTS, supra note 19, at 323; Isabel
Karpin & Karin O’Connell, Speaking into a Silence: Embedded Constitutionalism, the Australian
Constitution, and the Rights of Women, in THE GENDER OF CONSTITUTIONAL JURISPRUDENCE 22
(Beverley Baines & Ruth Rubio-Marin eds., 2005) [hereinafter CONSTITUTIONAL JURISPRUDENCE].
28
See Hellum, supra note 19, at 588.
29
See Hélène Ruiz Fabri & Andrea Hamann, Domestication of the CEDAW in France: From
Paradoxes to Ambivalences and Back Again, in W OMEN’S HUMAN RIGHTS, supra note 19, at 531.
30
See Choice Damiso & Julie Stewart, Zimbabwe and CEDAW Compliance: Pursuing Women’s
Equality in Fits and Starts, in W OMEN’S HUMAN RIGHTS, supra note 19, at 454.
31
See Jaco van den Brink & Hans-Martien ten Napel, The Dutch Political Reformed Party (SPG)
and Passive Female Suffrage: A Comparison of Three High Court Judgments from the Viewpoint
of Democratic Theory, 29 UTRECHT J. INT’L & EUR. L. 29 (2013); Marjolein van den Brink, The
CEDAW After All These Years: Firmly Rooted in Dutch Clay?, in W OMEN’S HUMAN RIGHTS, supra
note 19, at 482; Barbara M. Oomen, Joost Guijt, & Matthias Ploeg, CEDAW, the Bible and the
State of the Netherlands: the Struggle over Orthodox Women’s Political Participation and their
Responses, 6 UTRECHT L. REV. 158 (2010); Margreet de Boer, Articles 7 and 8: the Added Value
of the Women’s Convention and the Dutch Case of the Christian Party, in THE W OMEN’S
CONVENTION TURNED 30: ACHIEVEMENTS, SETBACKS, AND PROSPECTS 163 (Ingrid Westendorp ed.,
2012) [hereinafter THE W OMEN’S CONVENTION]; Ineke Boerefijn, Women's Right to Political
Participation. The Case of the Reformed Political Party in The Netherlands, in W OMEN’S HUMAN
RIGHTS AND CULTURE/RELIGION/TRADITION: INTERNATIONAL STANDARDS AS GUIDELINES FOR THE
DISCUSSION? 121 (Rikki Holtmaat & Ineke Boerefijn eds., 2009).
32
See Sandra Fredman, The CEDAW in the UK, in W OMEN’S HUMAN RIGHTS, supra note 19, at
511.
33
See Shaheen Sardar Ali, From Ratification to Implementation: ‘Domesticating’ the CEDAW in
State, Government and Society. A Case Study of Pakistan, in W OMEN’S HUMAN RIGHTS, supra
note 19, at 430 [hereinafter From Ratification to Implementation]; Shaheen Sardar Ali, Navigating
Religion, Politics and Cultural Norms: the Arduous Journey towards Domestication of CEDAW in
Pakistan, 19 J. PEACE, CONFLICT & DEV. 43 (2012) [hereinafter Navigating Religion].
34
See COMPETING FUNDAMENTALISMS, supra note 18, at 150-152, 242-245.
35
See Nihal Jayawickrama, India, in THE ROLE OF DOMESTIC COURTS IN TREATY ENFORCEMENT:
A COMPARATIVE STUDY 243, 256-64 (David Sloss ed., 2009); Madhu Mehra, India’s CEDAW
Story, in W OMEN’S HUMAN RIGHTS, supra note 19, at 385.
36
See Kabita Pandey, Judicial Education on the Convention on Elimination of Discrimination
Against Women in Nepal, in W OMEN’S HUMAN RIGHTS, supra note 19, at 410.
37
See C.C. Nweze, Domestication of CEDAW: Points to Consider for Customary Laws and
Practices, in W ITHOUT PREJUDICE: CEDAW AND THE DETERMINATION OF W OMEN’S RIGHTS IN A
LEGAL AND CULTURAL CONTEXT 49 (Meena Shivdas & Sarah eds., 2010) [hereinafter W ITHOUT
PREJUDICE].
38
See Mokgadi Lucy Mailula, Gender, Culture and the Law: the South African Experience, in
W ITHOUT PREJUDICE, supra note 37, at 75.
39
See Verónica Undurraga & Rebecca J. Cook, Constitutional Incorporation of International and
Comparative Human Rights Law: The Colombian Constitutional Court Decision C-355/2006, in
CONSTITUTING EQUALITY: GENDER EQUALITY AND COMPARATIVE CONSTITUTIONAL LAW 215 (Susan
H. Williams ed., 2009) [hereinafter CONSTITUTING EQUALITY] (on Decision of C-355 of May 10,
2006, declaring a statute criminalizing abortion under all circumstances unconstitutional, i n part
 11

Canada,42 Turkey,43 and Bangladesh.44 This type of country-level analysis is by far the most
prevalent; it is of considerable assistance in providing a thick account of the particular national
contexts in which CEDAW has come to be used, often going well beyond doctrinal legal issues
and considering the social, political, economic, and cultural context.
The second type of literature is that which is also primarily geographically oriented and
seeks to analyze the judicial use of CEDAW by comparing two countries, 45 or by analyzing how
courts in particular regions have engaged with CEDAW.46 This literature is potentially of
considerable importance in identifying whether particular regions or jurisdictions may be taking
significantly different approaches to the interpretation of CEDAW more generally.
The third type of literature departs from the geographical, state-centered focus and
analyses domestic level judicial engagement across several jurisdictions according to a particular
issue or theme, such as how CEDAW has been engaged in dealing with issues of religion and

of the basis of CEDAW); Martha I. Morgan, Emancipatory Equality: Gender Jurisprudence under
the Colombian Constitution, in CONSTITUTIONAL JURISPRUDENCE, supra note 27, at 75.
40
See Alda Facio, Rodrigo Jiménez Sandova & Martha I. Morgan, Gender Equality and
International Human Rights in Costa Rican Constitutional Jurisprudence, in CONSTITUTIONAL
JURISPRUDENCE, supra note 27, at 99; Naomi Seiler, Note, Sterilization, Gender, and the Law in
Costa Rica, 4 YALE HUM. RTS. & DEV. L. J. 109 (2001).
41
See Christiana Ochoa, Guatemalan Transnational Feminists: How Their Search for
Constitutional Equality Interplays with International Law, in CONSTITUTING EQUALITY, supra note
39, at 248.
42
See Beverley Baines, Using the Canadian Charter of Rights and Freedoms to Constitute
Women, in CONSTITUTIONAL JURISPRUDENCE, supra note 27, at 48; Lucie Lamarche, The
Canadian Experience with the CEDAW: All Women’s Rights are Human Rights – A Case of
Treaties Synergy, in W OMEN’S HUMAN RIGHTS, supra note 19, at 358.
43
See Hilal Elver, Gender Equality from a Constitutional Perspective: The Case of Turkey, in
CONSTITUTIONAL JURISPRUDENCE, supra note 27, at 278.
44
See Afra Afsharipour, Note, Empowering Ourselves: The Role of Women’s NGOs in the
Enforcement of the Women’s Convention, 99 COLUM. L. REV. 129 (1999).
45
See, e.g., Eileen Kaufman, Women and Law: A Comparative Analysis of the United States and
Indian Supreme Courts’ Equality Jurisprudence, 34 GA. J. INT’L & COMP. L. 557 (2006).
46
See, e.g., Sibongile Ndashe & Solomon Sacco, Watch the Courts Dance: Litigating the Right
to Non-Discrimination on the Ground of Sex, 4 EQUAL RTS. REV. 26 (2009) (Sub-Saharan Africa);
Mere Pulea, Women’s Dignity and Rights: Situating Pacific Experiences, in W ITHOUT PREJUDICE,
supra note 37, at 107.
 12

culture,47 trafficking and prostitution, 48 the definition and prosecution of rape, 49 challenges to
discrimination in nationality requirements, 50 female circumcision,51 divorce,52 and violence against
women.53 This literature is of potential importance in identifying differences between jurisdictions
in how CEDAW is interpreted in dealing with these particular issues.
Finally, there is the scholarly literature that primarily seeks to explain rather than describe
(that is not to say, of course, that the other three sets of literature do not attempt to do this, but
usually in the context of rich descriptions). This fourth set of literature seeks to step back from the
detail and attempts to advance various theories as to why the patterns to be found in the previous
sets of literature are as they are. It is often implicitly or explicitly 54 using the tools of comparative

47
See Frances Raday, Culture, Religion and Gender: an Overview, in W ITHOUT PREJUDICE, supra
note 37, at 17.
48
See Marjolein van den Brink & Marjan Wijers, ‘Because to me, a Woman Who Speaks in Public
is a Public Woman’: 30 Years Women’s Convention and the Struggle to Eliminate Discrimination
of Women in the Field of Trafficking and Prostitution, in THE W OMEN’S CONVENTION, supra note
31, at 135.
49
IWRAW Asia Pacific, Addressing Rape as a Human Rights Violation: The Role of International
Human Rights Norms and Instruments (2007) (unpublished manuscript),
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1146984.
50
See Gerard-René de Groot, Equal Treatment of Women and Men in Nationality Law, in THE
W OMEN’S CONVENTION, supra note 31, at 187.
51
See Phyllis Livaha, Eradicating Female Circumcision: Changing a Harmful Social Norm through
the Women’s Convention, in THE W OMEN’S CONVENTION, supra note 31, at 279.
52
See Pauline Kruiniger, Article 16 of the Women’s Convention and the Status of Muslim Women
at Divorce, in THE W OMEN’S CONVENTION, supra note 31, at 363.
53
See Kate Rose-Sender, Emerging from the Shadows: Violence Against Women and the
Women’s Convention, in THE W OMEN’S CONVENTION, supra note 31, at 453.
54
See, e.g., Darren Rosenblum, Internalizing Gender: Why International Law Theory Should
Adopt Comparative Methods, 45 COLUM. J. TRANSNAT’L L. 759 (2007).
 13

law55 or another discipline that encourages cross national comparisons, such as sociology, 56
politics,57 or anthropology.58

Domestic incorporation of international law in Europe

This literature significantly aided in drawing up a set of issues that would be used to
interrogate the dataset. A rather different way of framing the issues, however, is to consider the
implications of a different set of literature, the scholarship on the domestic incorporation of
international law in Europe. On the one hand, we would expect national judges in these two
systems to be especially aware of European Union law and of the European Convention on
Human Rights, because their decisions are subject to what we could call, crudely, supranational
judicial review, and because these laws are thoroughly embedded within national legal orders,
because these two bodies of law have been foundational in legal education within Europe for at
least three decades, and because finding out what European Union Law and European Human
Rights Law means for any issue is relatively easy to do. Europe’s supranational courts have
extensive jurisprudence; there is excellent, widely available, scholarship that digests this
jurisprudence; and Europe is fully wired, making access to these sources easy.
In both European systems, however, scholars of the European Union and the European
Court of Human Rights have shown that domestic invocation of these rules can be spotty. Among
an extensive array of such work, we can point to Karen Alter’s work, which has shown extensive
variation in the invocation of the EU’s gender equality law, 59 and there is a similar pattern shown
by Rachel Cicowski60 in the domestic incorporation of EU gender equality law more recently.

55
See, e.g., Judith Resnik, Comparative (In)equalities: CEDAW, the Jurisdiction of Gender, and
the Heterogeneity of Transnational Law Production, 10 INT’L J. CONST. L. 531 (2012); Anne Hellum
& Henriette Sinding Aasen, Conclusions, in W OMEN’S HUMAN RIGHTS, supra note 19, at 625; Ruth
Rubio-Marín & Martha I. Morgan, Constitutional Domestication of International Gender Norms:
Categorizations, Illustrations, and Reflections from the Nearside of the Bridge, in GENDER AND
HUMAN RIGHTS 113 (Karen Knop ed., 2004); Yvonne Donderas & Vincent Vieugel, Universality,
Diversity and Legal Certainty: Cultural Diversity in the Dialogue Between the CEDAW and States
Parties, in THE RULE OF LAW AT THE NATIONAL AND INTERNATIONAL LEVELS: CONTESTATIONS AND
DEFERENCE 321 (Machiko Kanetake & Andre Nollkaemper eds., 2014).
56
See, e.g., Zwingel, supra note 11, at 115.
57
Neil Englehart & Melissa K. Miller, Women’s Rights in International Law: Legitimacy, Persuasion
and Structuration (APSA 2013 Annual Meeting Paper, unpublished),
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1902066.
58
See, e.g., Sally Engle Merry, Constructing a Global Law - Violence Against Women and the
Human Rights System, 28 L. & SOC. ENQUIRY 941 (2003).
59
KAREN J. ALTER, THE EUROPEAN COURT’S POLITICAL POWER: SELECTED ESSAYS (2009), chapter
8.
60
RACHEL A. CICHOWSKI, THE EUROPEAN COURT AND CIVIL SOCIETY: LITIGATION, MOBILIZATION AND
GOVERNANCE (2007), chapters 3 and 5 (on domestic incorporation of EU equality law).
 14

Marlene Wind has pointed to the Nordic courts’ lack of citations of decisions of the Court of Justice
of the European Union. 61 Laurence R. Helfer and Erik Voeten have analyzed the varying influence
of ECtHR jurisprudence across member states. 62 We already know, therefore, that variation in the
judicial application of international and supranational legal norms exists, and that even the most
informed, rule of law-friendly judges can shy away from directly relying on international and
transnational law that is indisputably a central part of their domestic legal system. We also know
why this might be the case—at least to some extent, at least in Europe—for example, differences
in mobilization of rights across different jurisdictions, particular national sensitivities on particular
issues that make references to international or supranational norms less acceptable, and different
institutional traditions among the national courts. This literature was also drawn on in the attempt
to develop a set of issues for analysis.

Structure of Analysis
Informed by this literature, the written judgments in the cases included in the CEDAW
dataset were analyzed under four broad headings. The first issue was the process of norm
transference: how do judges get acquainted with CEDAW, and how influenced they are by the
citation of CEDAW elsewhere. The second issue was the extent to which courts appear to have
considered the interpretation of CEDAW as an autonomous matter for the domestic court itself,
as opposed to regarding the domestic interpretation of CEDAW as a shared enterprise. For
example, did the court refer to other tribunals or to the CEDAW Committee as persuasive or
binding sources of interpretative authority? The third issue concerned the legal status accorded
by the courts to CEDAW in their own legal systems, and the resulting balance between CEDAW’s
function as a source of legal authority as opposed to a source of norms that should be followed
irrespective of their legal status. The fourth issue was the extent to which the cases reflect different
understandings of the interpretation of CEDAW by courts across different jurisdictions in cases
with similar substantive questions in disputes.

Caveats
At this point, several caveats must be entered regarding the analysis of the data set. Social
science methodology would call what I did the mining of “dirty” data, meaning that it is highly likely
that the data I used as the basis for my analysis includes missing data, wrong data, and non-

61
Marlene Wind, The Nordics, the EU and the Reluctance Towards Supranational Judicial
Review, 48 J. COMMON M ARKET STUD. 1039 (2010).
62
Laurence R. Helfer & Erik Voeten, International Courts as Agents of Legal Change: Evidence
from LGBT Rights in Europe, 68 INT’L ORG. 77 (2014).
 15

standard representations of similar data. It is clear that the “results of analyzing a database/data
warehouse of dirty data can be damaging and at best be unreliable.” 63 What is presented in this
analysis is a way of “doing" comparative international law that is consistent with traditional
comparative law approaches of reading cases and carried out on a larger scale than is usual, but
has significant limitations.
I have resisted the temptation to present the findings of the data mining in ways that would
imply a greater degree of accuracy than I believe to be the case. Instead, I shall use terms that
are intentionally imprecise, in order to convey the sense that the findings are significantly
impressionistic. Rather than saying “in x out of y cases,” or “in x out of y states,” throughout this
part the analysis will often mention “a significant number of states,” “a few,” or “some.” Rather
than being an empirical analysis, it is better thought of as a report of an empirical study, in which
the data are not presented directly but rather revealed through my interpretative framework.

IV. FINDINGS

In this Part, I present the basic findings of the study, under various headings, which will
be recognizable from the analysis of the existing scholarly literature on CEDAW discussed in the
previous Part: norm transference; the autonomy of norm interpretation; the domestic legal status
of CEDAW, and the substantive variation in the interpretation of CEDAW’s norms. In several
respects, the results are of interest: significant variations between courts in their interpretation of
CEDAW occurred relatively infrequently, courts referred relatively seldom to interpretations of
CEDAW by other national courts, and there was little evidence of transnational dialogic
approaches to judging.

Norm Transference
We can usefully distinguish three principal methods by which CEDAW enters the judicial
decision, in so far as this can be gleaned from the written judgment: 64 judicial research; existing
use internal to the legal system; and arguments of lawyers representing those before the court. I

63
Won Kim et al., A Taxonomy of Dirty Data, (2003) 7 DATA MINING & KNOWLEDGE DISCOVERY 81,
81 (2003).
64
This caveat is important, indicating a difficulty in relying on the written judgments and any
summaries of arguments put to the court. A full examination would require access to all written
material filed and access to transcripts of oral argument, where relevant. In very few jurisdictions
is any of this material easily available.
 16

was particularly interested in whether, if at all, a pattern emerged in which one or more method
was used more or less in particular jurisdictions.

Judicial research
First, judges may generate a reference to CEDAW from their own research (or that of their
clerk, or cabinet, or internal research section of the court). In the past, we might have expected a
significant difference between common law and civil law jurisdictions, with the latter being
significantly more used to judges raising legal issues sua sponte. In the common law context,
there was previously a sense that such self-generation of legal authority by judges was suspect,
if not improper, and this is reflected in at least two of the judgments, one from the Supreme Court
of Nigeria,65 and one from the Constitutional Court of Uganda. 66 In the latter case a separate
opinion did refer to CEDAW,67 although it had not been referred to by representatives of any of
the parties before the Court and its use went against the lead opinion, which took a more
restrained approach to judicially-generated authorities.
Such internal debate within courts appears to be relatively rare, and it is now frequently
the case that judges will refer to CEDAW sua sponte. A decision of the Constitutional Court of
South Africa reflects the dominant approach, with the Court considering that there might be
circumstances where a court was obliged to raise the matter on its own and require full argument
from the parties.68 There are examples where CEDAW is referred to by judges sua sponte in both
common law and civil law jurisdictions, with little difference between them being apparent. 69 These
references may or may not arise because of a perceived obligation to refer to international
agreements that have been ratified by the state in which the Court has jurisdiction, an issue we
consider further below. In some cases, notably in Nepal, the increased use of CEDAW by the
judiciary appears to be linked to a judicial training program focusing on CEDAW.70

Existing use internal to legal system

Although there does not appear to be significant divergence between jurisdictions as to
whether judges refer to CEDAW sua sponte, there does appear to be significant difference within

65
App. B No. 222.
66
See App. B No. 284 (Judge Twinomujuni, in the lead judgment, decided not to discuss
international human rights conventions—including CEDAW—because no issue was raised by the
parties to that effect.)
67
The opinion was written by Judge Mpagi Bahegeine.
68
Cf. App. B No. 294.
69
See, e.g., App. B No. 229; App. B No. 176.
70
Pandey, supra note 36, at 410.
 17

the same jurisdictions, with some courts citing CEDAW more than others (for example, the French
Conseil d’Etat cites CEDAW in some cases, but neither the Cour de cassation nor the Conseil
constitutionnel has done so). 71 Some judges also cite CEDAW more frequently in their judgments
than others.72 The degree to which the choice of whether to cite to CEDAW is personal to the
judge rather than jurisdictionally determined is supported further by the fact that, in several cases,
citation to CEDAW appears in dissenting 73 or separate74 opinions, often in cases in which it is the
only citation to CEDAW by judges in that case.
Aside from judges referring to CEDAW sua sponte, a second principal set of sources that
judges referenced for information about CEDAW was “internal” to the domestic legal system. 75
There are three main types of such cited material, each of which referenced CEDAW: previous
jurisprudence within that legal system;76 domestic legislative materials;77 and material emanating
from the executive branch of the government. 78 It is much less usual to find the reference to
CEDAW arising from other sources, either citation to jurisprudence from outside the jurisdiction
concerned, or from legislation from outside the jurisdiction concerned, although there is evidence
of both in a few cases, the bulk of which refer to ECtHR jurisprudence by the court of a State
Party to the Convention, 79 or to EU legislation by court of an EU Member State. 80 In only two

71
Fabri & Hamann, supra note 29, at 553.
72
See, e.g., App. B Nos. 225, 226. See also From Ratification to Implementation, supra note 33,
at 451 (noting how among the Pakistan judiciary, “CEDAW’s champion seems to be Justice
Jilani”); COMPETING FUNDAMENTALISMS, supra note 18, at 152 (noting that the Eqyptian Supreme
Constitutional Court’s “readiness to invoke international law has been sporadic at best, depending
on the inclinations of the Court’s Chief Justice at any given time.”)
73
See, e.g., App. B No. 158 (Maria Farida Indrati dissenting); App. B No. 15 (Kirby J dissenting);
App. B No. 279 (Judges Kantarcıoğlu, Oto, Özgüldür, Kaleli, Perktaş, and Kömürcü, joint dissent);
App. B No. 309 (supporting dissent); App. B No.. 311 (supporting Ginsburg dissent); App. B No.
4 (Kirby J dissenting); App. B No. 12 (Callinan J dissenting).
74
See, e.g., App. B No. 231; App. B No. 250; App. B No. 220 (concurring opinion); App. B No.
132 (Péter Kovács concurrence); App. B No. 312 (concurrence); App. B No. 284 (concurrence).
75
The sources of references to CEDAW in this context usually are the only or the principal source
identified, although in some few cases another principal source is identified as well.
76
See App. B No. 249; App. B No. 322; App. B No. 311 (citing Ginsburg in No. 312); App. B No.
139 (citing No. 146); App. B No. 259 (citing Carmichele); App. B No. 135 (citing lower court
decision); App. B No. 133 (citing No. 140); App. B No. 257 (citing No. 266).
77
From the legislature, referred to in travaux préparatoires or in the text of the statute. See App.
B No. 116; App. B No. 115; App. B No. 119; App. B No. 114; App. B No. 113; App. B No. 8; App.
B No. 142; App. B No. 3.
78
See App. B No. 309 (CEDAW referred to in asylum officers guidance).
79
See App. B No. 161 (Irish Court refers to ECHR).
80
Referred to in Council Directive 2000/78 recitals and CEDAW cited by domestic court in that
context. See App. B No. 296; App. B No. 299; App. B No. 301.
 18

cases was there a reference to CEDAW arising from a court outside the legal hierarchy of the
court citing CEDAW.81

Arguments of counsel
There is evidence in some jurisdictions that where lawyers are unaware of CEDAW, or do
not bring it to the attention of the court, CEDAW is less often cited. 82 Unsurprisingly, therefore,
the third, and final, source of references to CEDAW identified in judicial decisions is counsel
representing a party or an intervener in the case. 83 Within this group of cases, however, there are
some significant differences. (Usually, CEDAW is referenced by only one party, although
sometimes parties on each side of the dispute will cite it. 84)
Although counsel may cite CEDAW, this does not guarantee that the judge in the case will
take up the opportunity to apply CEDAW to the relevant dispute. There are cases in which it is
evident from summaries of arguments accompanying the decision that counsel has cited CEDAW
but the Court simply ignores it without even mentioning in its judgment that the Court had been
referred to the Convention, 85 or ignores it after mentioning in the judgment that an argument had
been made based on it, 86 or dismisses it as not worth taking up because it is insufficiently related
to the issue that the Court must decide,87 or because the issue can be dealt with entirely on the
basis of domestic law,88 without engaging in any substantive discussion. In another group of
cases, however, those representing one or other party or intervener present a judge with an
argument referencing CEDAW, and the judge reacts by seriously engaging with the argument
presented.

Variations across and within jurisdictions

There appears to be little evidence that jurisdictions of particular types are more prone to
any of these types of reactions to CEDAW than others, and there is evidence of engagement and

81
See App. B No. 117 (Fiji court cites Indian court’s reference to CEDAW); App. B No. 303
(ECtHR’s reference to CEDAW).
82
See Goonesekere, supra note 24, at 82.
83
See, e.g., App. B No. 235; App. B No. 169.
84
See, e.g., App. B No. 289 (referred to both by counsel for the applicant and the intervener).
85
See, e.g., App. B No. 131 (CEDAW is not mentioned explicitly in the text, but is listed under
documents referred to.).
86
See, e.g., App. B No. 160; App. B No. 247; App. B No. 292; App. B No. 191; App. B No. 264;
App. B No. 184; App. B No. 21.
87
See, e.g., App. B No. 310.
88
See, e.g., App. B No. 128.
 19

disengagement within the same jurisdictions. 89 Nevertheless, there is a differential uptake of

CEDAW in the courts of different regions of the world, 90 and in the different issues to which
CEDAW is applied in these different jurisdictions. A prominent example is provided in cases
considering the relationship between CEDAW and female genital cutting, in which United States
courts have taken a largely identical line, 91 but where cases from other jurisdictions, particularly
in Africa where the practice is most common, are less common, primarily in sub-Saharan Africa.
So, too, controversial rulings on the incompatibility of polygamy with CEDAW norms 92 are
significantly restricted to a limited set of jurisdictions. So too, in the United Kingdom context, for
example, there is little substantive use of CEDAW other than in the context of refugees.
Within the group of cases in which there is a serious engagement with CEDAW, there is
a relatively high proportion in which non-governmental organizations 93 or government human
rights or equality agencies 94 are involved, but not exclusively so. 95 The bulk of cases in which
NGOs used CEDAW in argument come from Bangladesh, India, Kenya, and Nepal. In other
jurisdictions, such as the United Kingdom, there is evidence that NGOs have relatively little

89
Compare App. B No. 4 (engagement), with Australian Journalists’ Association (1988) EOC 92-
224 (Australian Conciliation and Arbitration Commission) (disengagement).
90
CEDAW is relatively popular in the South East Asian region (India, Pakistan, Bangladesh,
Nepal) and the Pacific region (Vanuatu, Fiji, Samoa, Kiribati, Philippines, Solomon Islands,
Tuvalu), and in the African context.
91
CEDAW interpreted as prohibiting female genital cutting: App. B No. 304; App. B No. 305; App.
B No. 313; App. B No. 314 (interpretation of FGM as persecution in Immigration and Nationality
Act, referencing CEDAW Committee); App. B No. 306.
92
See, e.g., App. B No. 261 (Van Reenen: “although the constitutional validity of polygamy has
not been subjected to judicial scrutiny as yet . . . it is in conflict with certain international human
rights instruments,” citing the Committee on the Elimination of Racial Discrimination (CERD), Art
16.)
93
See e.g., App. B No. 19 (writ petition was filed by Dr. Shipra Chaudhry and Ain O. Salish Kendra,
a Dhaka-based human rights non-governmental organization); App. B No. 144 (writ petition was
filed by a non-governmental organisation, Sakshi, which provided assistance to victims of
violence); App. B No. 182 (application brought by R.M. (a minor through next friend J.K. her
mother) and CRADLE, a Non-Governmental Children Foundation as the 1st Interested Party. The
second and third interested parties were COVAW (Coalition on Violence Against Women), and
FIDA (Federation of Women Lawyers Kenya)); App. B No. 19 (submitted by Bangladesh Legal
Aid and Services Trust); App. B No. 177; App. B No. 265 (amicus argument); App. B No. 117;
App. B No. 203 (Sapana Pradhan Malla, Meera Dhungana, and Prakash Mani Sharma
representing two leading civil society organizations, the FWLD and the Pro-Public, see Ananda
Mohan Bhattarai, The Landmark Decisions of the Supreme Court, Nepal on Gender Justice
(National Judicial Academy, Nepal, 2010)); App. B No. 147 (submitted by several women’s
organizations); App. B No. 205 (submitted by several human rights organizations).
94
See, e.g., App. B No. 129.
95
See, e.g., App. B No. 240; App. B No. 255; App. B No. 184; App. B No. 254; App. B No. 317;
App. B No. 282; App. B No. 108; App. B No. 5; App. B No. 308; App. B No. 295; App. B No. 288;
App. B No. 23.
 20

knowledge of CEDAW, and that this affects adversely the take-up of CEDAW by the courts. 96 In
contrast, in the Netherlands, the most prominent cases citing CEDAW were set in train as the
result of a group of NGOs, headed by the Clara Wichmann Test Case Fund “taking up” the cases
“to obtain clarity on the exact nature of the Dutch State’s obligations under CEDAW.” 97
There is some evidence from previous research that there is a gender effect, with women
judges citing to CEDAW proportionately more than male judges. 98 In my dataset, several male
judges cite to CEDAW much more frequently than their colleagues, in particular Justice Kirby of
the High Court of Australia, 99 and Justice Tassadaq Hussain Jilani of the Lahore High Court (later
appointed to the Pakistan Supreme Court).100 We cannot say, therefore that male judges do not
cite CEDAW. But there is a clear pattern in the cases analyzed for prominent women judges in
the highest tribunals to be likely to cite CEDAW more frequently than their male colleagues. We
can identify, among others, 101 Justice Ginsburg of the United States Supreme Court, 102 Justice
O’Regan of the Constitutional Court of South Africa, 103 Justices McLachlin and L’Heureux-Dubé
of the Supreme Court of Canada, 104 Judge Mpagi-Bahegeine of the Constitutional Court of
Uganda,105 and (particularly) Baroness Hale of the Supreme Court of the United Kingdom
(formerly the House of Lords sitting as the final appellate court). 106

96
See Fredman, supra note 32, at 514. By contrast, in App. B No. 184, the public prosecutor who
cited CEDAW had attended training, which had included CEDAW. See A DIGEST OF CASE LAW ON
THE HUMAN R IGHTS OF W OMEN (ASIA PACIFIC) 58 (Christine Foster et al. eds., 2003).
97
Oomen et al., supra note 31, at 167.
98
Hellum, supra note 19, at 588 (in most cases in which CEDAW was referred to by the Norwegian
Anti-Discrimination Tribunal, it was cited by women Tribunal members).
99
See, e.g., App. B No. 4; App. B No. 13 (Kirby J dissenting).
100
Navigating Religion, supra note 33, at 43 (“[I]n the reported case law of Pakistan’s superior
judiciary (five high courts and the Supreme Court) from accession in 1996 through to 2010, there
are only four judgments where the court specifically alluded to CEDAW. Two delivered by the
same judge. . . . The third is a judgment of the High Court of Azad Jammu & Kashmir citing the
Jilani judgment.”) The cases referred to are: App. B No. 225; App. B No. 228; App. B No. 226;
App. B No. 227.
101
See also App. B No. 25 (Justice Indra Hariprashad-Charles); App. B No. 231 (Justice Flerida
Ruth Romero).
102
See App. B No. 311 (Ginsburg); see also App. B No. 312 (Ginsburg).
103
See App. B No. 263 (O’Regan).
104
See App. B No. 26 (McLachlin, C.J.); See App. B No. 28 (L'Heureux-Dubé).
105
See App. B No. 284 (Judge Mpagi-Bahegeine). She is said to have been “at the forefront in
urging compliance” with CEDAW. Henry Onoria, Uganda, in INTERNATIONAL LAW AND DOMESTIC
LEGAL SYSTEMS: INCORPORATION, TRANSFORMATION, AND PERSUASION 594, 613 (Dinah Shelton
ed., 2011).
106
See App. B No. 289 (Baroness Hale) (“In other words, the world has woken up to the fact that
women as a sex may be persecuted in ways which are different from the ways in which men are
persecuted and that they may be persecuted because of the inferior status accorded to their
 21

Autonomy of Norm Interpretation

Once the court is seized of CEDAW, a major question relates to the relationship that the
domestic court conceives itself as having with other interpreters of CEDAW. There are three
recurring relationships in issue: those with other non-judicial domestic bodies in the same
jurisdiction, including the executive and legislature; those with the CEDAW Committee, which, as
we have seen, oversees the monitoring and interpretation of CEDAW at the international level;
and those with other domestic, regional and international courts. The question is where along a
continuum between autonomous interpretation (where the domestic court considers that it alone
has authority to interpret CEDAW in the domestic legal context) and deference (where the
domestic court considers that another body has the principal interpretative authority, to which it
should defer) the domestic court’s approach lies.
We see in the cases included in the dataset examples of both orientations, with some
reflecting a strongly autonomous approach, 107 and others reflecting a more deferential approach,
with other non-judicial domestic bodies 108 or the CEDAW Committee109 (particularly illustrated by

gender in their home society. States parties to the Refugee Convention, at least if they are also
parties to the International Covenant on Civil and Political Rights and to [CEDAW], are obliged to
interpret and apply the Refugee Convention compatibly with the commitment to gender equality
in those two instruments.”). See also App. B No. 297 (Baroness Hale); App. B No. 302 (Baroness
Hale); App. B No. 303 (Baroness Hale).
107
See App. B No. 209 (Autonomous interpretation or use of CEDAW committee reports;
autonomous interpretation of what is required in order to be able to determine whether the plaintiff
has established discrimination under national law and under CEDAW ; the same approach applies
to both, it would seem). See App. B No. 213 (Ratification/confirmation: Netherlands Supreme
Court applies autonomous view as to whether this provision of CEDAW is directly effective); App.
B No. 213 (refers to CEDAW views but rejects them); App. B No. 110 (referred to CEDAW reports:
development of recommendations to the Government, even in the absence of violation of
CEDAW). But see App. B No. 17 (views and recommendations of the CEDAW Committee on the
position in Austria were not relevant for the examination of the case and did not have to be
considered by the national courts: “The determination of the relevant facts and the legal
assessment is solely for the Austrian courts.”).
108
For a deferential approach toward other domestic bodies and a function of courts in a
democracy, see App. B No. 182 (“At the moment one can only conclude that the exclusion was
deliberate and we do not consider that it is the function of the court to fill the gaps. It must not be
forgotten that modern Constitutions are being negotiated with the people directly or indirectly by
way of Constituent Assemblies and Referendums and it would not be proper for the courts to take
their places by filling in fundamental gaps in the Constitutions. The life of society has other
important actors such as and other organs which must be left to play their role to the full”); App.
B No. 318 (There is no lacuna in the domestic law and therefore CEDAW could not be used to
filling non-existent gaps. The rights and concepts set out in CEDAW need to be given substance
by Parliament in accordance with the separation of powers doctrine).
109
See e.g., App. B No. 18 (although CEDAW did not explicitly refer to the prohibition of torture
and other ill-treatment, the Committee on the Elimination of Discrimination against Women had
held that violence against women impaired or nullified their enjoyment of human rights and
 22

references to specific CEDAW General Recommendations as important and statements of

authoritative interpretation 110), being regarded as prominent authorities. It is particularly striking,
however, that I identified only one out of over 300 cases in which the domestic court sought to
interpret a provision of CEDAW in light of how other states and foreign courts interpreted the
same provision. (And in that case, the sources drawn on involve consideration of a mixture of
legislation and judicial interpretation in a highly selective group of jurisdictions.) 111 Courts did not
tend to refer to the interpretation of CEDAW by other foreign domestic courts, even when this
practice is otherwise relatively frequent in the context of the interpretation of national constitutional
and domestic statutory provisions. Courts appear, therefore, to be more willing to be seen to be
influenced by foreign judicial decisions in the interpretation of national norms than they are in the
interpretation of international norms.112
Considerable care must be exercised in interpreting this finding. 113 In particular, this
finding should not be interpreted as inferring that judges have not been influenced by how foreign

fundamental freedoms under general international law); App. B No. 314 (interpretation of
persecution in Immigration and Nationality Act, referencing CEADW Committee).
110
See App. B No. 9 (General Recommendation No. 25); App. B No. 17 (General
Recommendation No. 23); App. B No. 20 (General recommendation No.19); App. B No. 304
(General Recommendation No. 14); App. B No. 305 (General Recommendation No. 14); App. B
No. 313 (General Recommendation No. 14); App. B No. 302 (General Recommendation No. 19);
App. B No. 28 (General Recommendation No. 19); App. B No. 258 (General Recommendation
No. 19); App. B No. 135 (General Recommendation No. 17); App. B No. 147 (General
Recommendation No. 19).
111
See App. B No. 9 (whether establishing quotas for female representation amounted to a
“special measure” directed at ensuring substantive equality in accordance with the CEDAW. As
“special measures” were referred to in the CEDAW and were part of international human rights
discourse, note could be taken of affirmative action measures that were permitted or considered
elsewhere. For example, the United Kingdom, European Communities, United States, Canadian
Charter of Rights and Freedoms, and New Zealand Human Rights Act 1993 (NZ) discussed, in
order to arrive at conclusion, at 59: “The greatest possible caution is appropriate when
considering jurisprudence from other places. However, this short excursus indicates that ‘special
measures’ are widely recognised in differing legal systems as a method of redressing inequalities
arising from race or sex. While it would be unhelpful and imprudent to treat any of the approaches
to special affirmative action measures referred to above as providing a rigid template for the
correct method of construing and applying s 7D of the SDA, it is worth observing that automatic
or inflexible quotas, even in differing legal systems, seem to run a greater risk of falling foul of
general prohibitions on discriminatory acts and can prove more difficult to justify as ‘special
measures’ than more flexible measures with a similar aim.”)
112
Several of the jurisdictions in which foreign precedents are used by constitutional court judges
in the context of interpreting domestic law, do not appear to have done so when interpreting
CEDAW. See THE USE OF FOREIGN PRECEDENTS BY CONSTITUTIONAL JUDGES (Tania Groppi &
Marie-Claire Ponthoreau eds., 2013).
113
See David S. Law & Wen-Chen Chang, The Limits of Global Judicial Dialogue, 86 W ASH. L.
REV. 523, 524 (2011) (observing that “judicial opinions are a highly misleading source of data
 23

courts have interpreted CEDAW, only that there is little or no evidence of this in the written
opinions. We know from other sources, however, that on occasion such foreign influences have
been significant, but that this influence has not been signaled in the judgments, as in Nepal. 114
Domestic Legal Status of CEDAW
The domestic legal status attributed by domestic courts to CEDAW varies considerably
between different states. In practice, we can observe three different types of legal status being
accorded to CEDAW. First, in a few states, CEDAW is used in practice as the basis for direct
litigation claims—it is given “direct effect.” Second, in a significant proportion of states, CEDAW
is given indirect interpretative effect, meaning that it is used primarily as the basis for interpreting
other provisions of domestic or relevant international law, such as the domestic constitution, other
international conventions, applicable customary international law, or legislation that applies in the
state concerned. Third, in a few states, the courts give no significant domestic legal status to
CEDAW in domestic courts, regarding it as suitable only for domestic legislative or executive
action, or viewing it as an obligation that operates only in the international domain.
We can begin with those states that have not ratified CEDAW. We might suppose that
such states would be those in which CEDAW has no effect in the courts of that state, on the basis
that there is not even an international law obligation to implement a Convention that the state has
not ratified. We need to distinguish between treaty-based obligations and obligations based on
customary international law or jus cogens. No domestic court in the dataset appears to consider
CEDAW to have become jus cogens. Some domestic courts do, however, appear to recognize
aspects of CEDAW as representing customary international law, and take it into account where
they are required under domestic law to apply customary international law. United States’ courts,
for example, take CEDAW into account in applying the Alien Tort Claims Act. Quite apart from
this, however, we find in practice that some states that have not ratified CEDAW nevertheless, in
addition, accord it indirect interpretative effect, particularly in the interpretation of constitutional
provisions.115 One prominent example, again, is the United States, where domestic courts have
sometimes taken the position that it is appropriate to take CEDAW into account, despite the fact

about judicial usage of foreign law;” noting, based on interviews with members of the Taiwanese
Constitutional Court, “the existence of a large gap between the frequency with which the court
cites foreign law in its opinions and the extent to which it actually considers foreign law ;” and
concluding that “[a]nalysis of judicial opinions alone may lead scholars to conclude mistakenly
that a court rarely engages in comparative analysis when, in fact, such analysis is highly routine.”)
114
See Pandey, supra note 36, at 426 (importance of contributions to training of Nepalese judges
by the then Chief Justice of India, showing how the Indian judiciary considered CEDAW).
115
See Rubio-Marin & Morgan, supra note 55, at 138.
 24

that the United States has not ratified CEDAW, both in the interpretation of the Constitution, as
well as in the interpretation of ATCA. 116
In ratifying states, the critical question is often whether the state court regards CEDAW as
having direct effect in domestic law. Some courts in ratifying states do accord CEDAW such direct
effect,117 whilst courts in other ratifying states do not accord CEDAW such effect. 118 In some
states, domestic courts do not adopt a blanket approach to determining the issue, treating each
provision of CEDAW as requiring separate analysis of the degree of specificity of obligation to
which the provision gives rise. In yet other ratifying states, courts have taken an inconsistent
approach, 119 with courts in a particular state in some cases appearing to deny direct effect, whilst
courts in the same state in other cases act as if direct effect was assumed. 120 Even where CEDAW
may theoretically form the basis for direct litigation claims, courts in that jurisdiction may, in
practice, accord CEDAW indirect interpretative effect (only or as well), or simply ignore it on
occasion. This is because CEDAW may be directly effective, but may be below the Constitution
and other domestic legislation in the hierarchy of sources. 121
In states where the courts have decided that CEDAW does not have direct effect, or it is
ambiguous, then it is effectively up to the legislature to decide whether further direct effect is to

116
See App. B No. 307 (CEDAW regarded as relevant even though had not been ratified by the
Senate); App. B No. 312 (no distinction in effects drawn between ratified and ungratified
conventions, Ginsburg in concurrence); App. B No. 315 (Referring to CEDAW, the Court held
that: “The United States has agreed to ‘take all appropriate measures, including legislation, to
suppress all forms of traffic in women and exploitation of prostitution of women.’” but the US had
only signed, not ratified CEDAW. A court in Botswana has taken a similar position. See App. B
No. 23 (Amissah P., referring to CEDAW “There is no evidence that Botswana is one of the 100
States that have ratified or acceded to the Convention but I take it that a court in this country is
obliged to look at the Convention of this nature which has created an international regime when
called upon to interpret a provision of the Constitution which is so much in doubt to see whether
that Constitution permits discrimination against women as has been canvassed in this case.”)
Botswana has actually ratified CEDAW.
117
See, e.g., App. B No. 199; App. B No. 229 (CEDAW prevailed in Paraguay over contrary
provision of domestic law, and amended it); App. B No. 159.
118
See, e.g., App. B. No. 233 (lack of specificity of CEDAW provisions limiting the extent to which
they create clear binding norms); App. B No. 212 (CEDAW is not sufficiently specific and therefore
this provision is unsuitable for direct application by national courts).
119
In some states the issue has become a central question in litigation with different courts
adopting diverging approaches, e.g., the Netherlands. Compare App. B No. 213 (CEDAW has
no direct effect in this context) with App. B No. 214 (CEDAW provision has direct effect) and App.
B No. 209 (Court holds particular provision of CEDAW to have direct effect).
120
See Fabri & Hamann, supra note 29, at 549; App. B No. 166; App. B No. 171.
121
See App. B. No. 195 (Mexican Constitution provides that all treaties entered into by President
of the Republic with the approval of the Senate, shall be the supreme law of the Union. Also, the
Plenum of the Supreme Court of Justice has determined that international treaties are below of
the Constitution and above the general, federal and local laws.).
 25

be given to CEDAW in domestic law. Where such legislative action has taken place, then the
court may, or may not, have regard to CEDAW in the interpretation of that legislation. 122 There
are several states, particularly India, 123 Fiji and Australia, in which legislation has prominently
mentioned CEDAW in its provisions, and the courts have regularly engaged with the interpretation
of CEDAW as a result. In these contexts, CEDAW has become part of the everyday legal
discourse in particular areas of the law.
Where no legislative incorporation has taken place, the courts may as a result decide to
accord CEDAW no direct domestic legal status, but more usually CEDAW is accorded indirect
effect in the interpretation of legislation and constitutional provisions. CEDAW has been frequently
referred to in certain contexts in the United Kingdom, where no legislative incorporation has taken
place. This is because the common law has long considered that the courts should interpret
legislation that is ambiguous in such a way that it conforms to the state’s international obligations,
if it is possible to do so. 124
This approach has been adopted in a range of Commonwealth courts, although there are
both stronger and weaker forms of this approach apparent. Several courts go well beyond the
current United Kingdom judicial approach, according CEDAW interpretative weight tout court. This
arises where the court considers that domestic constitutional provisions are the method chosen
for according Convention rights, even where there is no explicit textual evidence of this, 125 or
where there is a Constitutional provision according legal weight to unincorporated international
Conventions.126 CEDAW may be used, for example, to fill in gaps in the domestic legal
coverage,127 provided there is no clear legislative or constitutional provision to the contrary. 128

122
See App. B. No. 167.
123
See App. B. No. 142.
124
See App. B No. 129 (words of the ordinance to be construed, if they were reasonably capable
of bearing such a meaning, as intending to carry out Hong Kong’s obligation under CEDAW rather
than being inconsistent with them).
125
See App. B No. 28 (per L’Heureux-Dubé and Gonthier JJ.).
126
See App. B No. 177 (“This court has regard to international instruments which our country has
subscribed to whether or not they have become part of our domestic law, courtesy of art 2 of the
2010 Constitution.”).
127
One of the better-known examples is where CEDAW provided the basis for drawing up judicial
standards for what constitutes sexual harassment, in the absence of national legislation. See App.
B No. 147; see also App. B No. 117 (drawing on Bangalore Principles; example of court using
international law as gap filling even where international convention not incorporated). For a
discussion of the Bangalore Principle, see Melissa A. Waters, Creeping Monism: The Judicial
Trend Toward Interpretative Incorporation of Human Rights Treaties, 107 COLUM. L. REV. 628
(2007).
128
See App. B No. 134; App. B No. 179.
 26

Other Commonwealth courts limit this approach to where legislation is ambiguous, 129 strictly
interpreted, and resist CEDAW being used to undermine clear legislative provisions.130 Some
Commonwealth state courts resist according ratified, but unincorporated CEDAW, any legal
status.131 Within the same state, different courts may adopt apparently radically different
positions.132 The stronger Commonwealth approach appears to have been significantly influenced
by the adoption of the Bangalore Principles and subsequent equivalent statements of principle, 133
which several judges have used to justify according indirect interpretative effect to CEDAW. 134
Indeed, where CEDAW is taken into account in judicial decisions, this is most frequently
the case in a situation where the primary function of CEDAW is indirect, to assist in the
interpretation of another legal norm which operates in that legal system, which may be a

129
See App. B No. 282.
130
See App. B No. 6 (CEDAW unable to be used to get around clear exception in domestic
legislation); see also App. B No. 321.
131
See, e.g., App. B No. 196; App. B No. 288 (UK has not ratified CEDAW, so point doesn’t arise
for decision).
132
See, e.g., App. B No. 318 (no lacuna in the domestic law and therefore CEDAW could not be
used to filling non-existent gaps).
133
The Zimbabwe Declaration 1994, inter alia, stated: "Judges and lawyers have duty to
familiarise themselves with the growing international jurisprudence of human rights and
particularly with the expanding material on the protection and promotion of the human rights of
women.”
134
See, e.g., App. B No. 117 (draws on Bangalore Principles etc.). See also Meena Shivdas &
Sarah Coleman, Promoting the Human Rights of Women and Girls through Developing Human
Rights Jurisprudence and Advancing the Domestication of International Human Rights Standards,
in W ITHOUT PREJUDICE, supra note 37, at 127.
 27

constitutional provision, 135 a statutory provision, 136 the common law,137 or in exercising discretion
in sentencing a criminal offender. 138 It is also noteworthy that CEDAW has been drawn on
extensively in the interpretation of other international law conventions that the court regards as
relevant, in particular the Refugee Convention. 139 In these contexts, courts sometimes refer to the
desirability of ensuring a “harmonious” interpretation, one in which national and international law
reach results that are compatible with each other. 140
Substantive Variation in the Interpretation of CEDAW’s Norms

135
For interpretations of constitutional provisions, see App. B No. 184; App. B No. 254; App. B
No. 234; App. B No. 231; App. B No. 208; App. B No. 233a; App. B No. 126; App. B No. 158;
App. B No. 192; App. B No. 44; App. B No. 142; App. B No. 138; App. B No. 281; App. B No. 20;
App. B No. 146; App. B No. 141; App. B No. 23.
136
See App. B No. 116 (interpretation of Fiji Family Law Act 2003 which explicitly refers to
CEDAW); App. B No. 115 (same); App. B No. 114 (same); App. B No. 119 (interpretation of Fiji
Domestic Violence Decree); App. B No. 174 (interpretation of Mexican Civil Code). For an
interpretation of Australian domestic anti-discrimination law, see App. B No. 10; App. B No. 8;
App. B No. 3; App. B No. 7. For an interpretation of New Zealand human rights legislation, see
App. B No. 216; App. B No. 218. For an interpretation of the (Indian) Protection of Human Rights
Act, 1993, see App. B No. 142; App. B No. 146; App. B No. 136. For an interpretation of Canadian
Criminal Code, see App. B No. 28. For an interpretation of Hong Kong Sex Discrimination
Ordinance, see App. B. No. 129. For an interpretation of United States Civil Rights Act, 1964,
Title VII, see App. B No. 309 (dissent); App. B No. 313 (interpretation of US Alien Tort Statute);
App. B No. 314 (interpretation of persecution in Immigration and Nationality Act, referencing
CEDAW Committee); App. B No. 302 (interpretation of UK Housing Act 1996).
137
For the disapplication of the marital rape exception in common law, see App. B No. 256; For
queries regarding whether the previous approach to determining ancillary relief on divorce is
satisfactory, see App. B No. 130; App. B No. 258.
138
See App. B No. 240 (sexual assault); App. B No. 118; App. B No. 308 (death penalty); App.
B No. 6 (domestic violence).
139
See App. B No. 294 (discrimination under CEDAW is not enough to ground “persecution” under
the Refugee Convention); App. B No. 12 (Callinan J, dissenting); App. B No. 217 (“being
persecuted” under Article 1A of the Refugee Convention definition could be defined as the
sustained or systemic violation of basic ”human rights” (including CEDAW) demonstrative of a
failure of state protection); App. B No. 297 (Baroness Hale); App. B No. 286; App. B No. 289 (“In
other words, the world has woken up to the fact that women as a sex may be persecuted in ways
which are different from the ways in which men are persecuted and that they may be persecuted
because of the inferior status accorded to their gender in their home society. States parties to
the Refugee Convention, at least if they are also parties to the International Covenant on Civil
and Political Rights and to [CEDAW], are obliged to interpret and apply the Refugee Convention
compatibly with the commitment to gender equality in those two instruments.”)
140
See, e.g., App. B No. 210 (desirability of having harmonious interpretation of CEDAW with
other international instruments prohibiting discrimination); App. B No. 212 (CEDAW
complementing ICCPR and making it more specific); App. B No. 270; App. B No. 248; App. B No.
136 (desirability of ensuring harmonious interpretation of differing national provisions (including
those that refer to CEDAW)).
 28

The number of cases in the data set in which CEDAW is cited, at just over 300, is a tiny
proportion of cases decided by these domestic courts, and of that 300 an even smaller proportion
of cases engage in any extended substantive interpretation of CEDAW. In the main, references
to CEDAW are cursory, often little more than a mere mention of the Convention, and even then
more usually found sandwiched between other international human rights conventions. 141

Relative homogeneity
Where substantive interpretation of CEDAW is to be found, there is relatively little
substantive conflict between domestic courts in the interpretation of CEDAW norms, although
making that judgment is significantly subjective. This relative homogeneity of substantive
interpretation is to be found both in the conception of rights that is considered to be embodied in
CEDAW, and in the substantive result that emerges from the application of CEDAW to particular
areas of dispute. Thus, whether the substantive issue is the common law requirement of
corroboration in rape cases, 142 or the principles which fairness requires for women in divorce
settlements,143 for example, a relatively similar approach and result is adopted in otherwise widely
differing court systems. So, too, whether the conceptual issue is whether CEDAW imposes
positive obligations on states (it does), 144 or whether the meta-principle of equality is substantive
or formal (it is substantive),145 a similar approach is again adopted throughout the cases surveyed.

141
See, e.g., App. B No. 234 (CEDAW grouped with ICESCR, Declaration on the Elimination of
Discrimination Against Women 1967, and ILO Convention 111).
142
See App. B No. 118. For requirement of corroboration issue, see App. B No. 184; App. B No.
285; App. B No. 112 (CEDAW) used to support and justify a Court’s decision to remove
the corroboration warning requirement for evidence of victims of sexual violence on the ground of
gender discrimination). For a court disapplying the marital rape exception in common law, see
App. B No. 256. Where a Court wishes to avoid holding the corroboration rule unlawful, it is more
inclined not to interpret CEDAW at all. See, e.g., App. B No. 184.
143
See App. B No. 194 (CEDAW used to defend provisions in favour of women on divorce); App.
B No. 130 (queries whether previous approach to determining ancillary relief on divorce is
satisfactory); App. B No. 275 (division of property on divorce should recognize contribution of the
woman in terms of home work); App. B No. 277 (terms of divorce award by court); App. B No.
274 (divorce settlement of 95% to man held discriminatory). Where the Court wishes to avoid
interpreting CEDAW as requiring such principles, there is a tendency to hold that CEDAW simply
does not apply. See, e.g., App. B No. 321 (discriminatory aspects of customary law protected by
the Constitution).
144
The right requires positive obligations. See App. B No. 118; App. B No. 215; App. B No. 209;
App. B No. 215; App. B No. 192; App. B No. 226; App. B No. 211; App. B No. 275 (CERD imposes
a positive obligation on States to pursue policies of eliminating discrimination against women by,
amongst other things, adopting legislative and other measures which prohibit such
discrimination); App. B No. 239 (CEDAW requires the State to take action to prevent violence
against women by non-state actors (including domestic violence)).
145
See infra notes 157-161.
 29

This general finding of relative homogeneity of substantive interpretation is not universal,

however, and in three main respects we can identify significant substantive interpretative
variation:146 (i) regarding the implications of the requirement that “special measures” should be
“temporary” for establishing the limits on permissible affirmative action, (ii) regarding the
application of CEDAW to customary inheritance laws, and (iii) as regards whether “equality” or
“dignity” is the appropriate meta-principle which should influence the interpretation of the CEDAW
provisions.

Special measures
The first issue involves the meaning of, and limits on, permitted “special measures” (what
in domestic jurisdictions are sometimes termed “affirmative action” or “positive action”). Article
4(1) of CEDAW provides: “Adoption by States Parties of temporary special measures aimed at
accelerating de facto equality between men and women shall not be considered discrimination as
defined in the present Convention, but shall in no way entail as a consequence the maintenance
of unequal or separate standards; these measures shall be discontinued when the objectives of
equality of opportunity and treatment have been achieved.”
A central issue in the interpretation of this provision is the meaning of “temporary.” In an
important 1998 Swiss case, 147 concerning whether quotas in an electoral context were justified
under the Swiss Constitution and CEDAW, the meaning of Article 4(1) was considered. The Court
held that the requirement that the measures should be temporary does not necessarily require,
as a condition of validity, that a time limit should be put in place at the time of their adoption; it is
sufficient if the measures are repealed as soon as they have reached their goal. This is especially
true when it is not predictable how much time it will take to reduce the underrepresentation of
women. This approach is in marked contrast with later cases in other jurisdictions, in which courts
appear to interpret CEDAW as requiring the temporary limitation to be built into the structure of
the affirmative action system if it is to be compatible with CEDAW.148 Perhaps most famously in

146
Another possible candidate may be emerging, regarding the extent to which CEDAW permits
“protective” restrictions on women working in particular industries or at particular times. Compare
App. B Nos. 234, 238; with App. B. No. 208.
147
App. B No. 270.
148
See, e.g., App. B No. 9; App. B No. 129 (attempt to use affirmative action provision in Hong
Kong Sex Discrimination Ordinance to defend different scoring systems for school transfers
between boys and girls; CEDAW used to limit the interpretation of the section, requiring it to be
read as allowing only temporary exceptions to non-discrimination provision).
 30

Grutter v. Bollinger, Justice Ginsburg, in concurrence, cited CEDAW in support of her argument
that the Constitution set a time limit on the affirmative action in issue. 149

Inheritance and succession

The second substantive issue concerns the contested issue of the application of CEDAW
to inheritance and succession. On the one hand, several courts have used CEDAW to support
challenges to inheritance laws that discriminate against girls and women. For example, in a case
dealing with the property rights of women in Hindu succession law, the Supreme Court of India
held that Hindu women had equal rights, with men under Indian legislation, drawing heavily on
CEDAW.150 In a Kenyan case,151 the court considered a challenge to a customary law rule denying
women inheritance rights due to the expectation that they would eventually get married. The court
rejected this justification for inequality in inheritance, holding that denying women equal rights to
inheritance under Kikuyu customary law violated the Kenyan Constitution and CEDAW.
A different approach to inheritance is adopted in some other jurisdictions. 152 In a challenge
to provisions of a law providing succession to property in favor of men on the basis that the
provisions were discriminatory and unfair against tribal women, the Indian Supreme Court held
that it would not strike down the discriminatory law, although it was suspended in order to
guarantee the woman’s right to livelihood.153 In several Nepalese cases 154 the issue was whether
a particular statutory provision that distinguished between married daughters and married sons
was contrary to CEDAW. The court held that it was not contrary to CEDAW because it was not
discriminatory against women: the status of membership of the daughter with the joint family was
severed upon her marriage and she had no rights and obligations regarding her birth family but
did through her husband’s family. The Court observed that it could not be oblivious to social
practices and values. CEDAW has also been held not to be applicable to discrimination in
inheritance of noble titles in Spain, because these were merely symbolic.155

Dignity and equality

149
App. B No. 312.
150
App. B No. 136.
151
App. B No. 181.
152
E.g., several African jurisdictions, see Ndashe & Sacco, supra note 46, at 26.
153
App. B No. 141. The dissenting judgment of K. Ramaswamy J would have struck down the
discriminatory law, arguing that it was contrary to CEDAW.
154
App. B No. 203; App. B No. 207.
155
See App. B No. 246; App. B No. 247.
 31

As regards the third substantive issue, the question of which meta-principles should
influence the interpretation of CEDAW, we should note initially that this issue arises in only a
limited range of courts. This is because the predominant approach to interpreting CEDAW is
textual, and there is also a significant group of cases in which this textual approach to
interpretation is either supplemented with or replaced by an interpretative approach that has been
termed “originalist” in some jurisdictions. 156 Only when courts adopt a more teleological approach
to interpretation, in which the court attempts to determine the “end” or “teleos” of CEDAW and
interpret its provisions in light of that, do general principles of very considerable generality, which
in this context I term “meta-principles,” come significantly into play.
There are two dominant meta-principles that are frequently identified in cases included in
the dataset: (human) dignity, and equality. Courts sometimes identify both dignity and equality as
the appropriate animating meta-principles,157 but more frequently dignity158 or equality159
dominates the discussion. There is seldom any (or any extensive) discussion of what either of
these meta-principles means, and more usually the court appears to consider their meaning, and
the implications to be drawn from them, to be self-evident. This is perhaps more particularly the
case regarding “dignity” than “equality”. There are two major exceptions to this. The first, in the
case of dignity, is when courts use dignity explicitly as a way of linking women’s rights to human
rights more generally, seeing them as both linked by a common understanding of dignity, thus
ensuring that women’s rights should be seen as giving rise to equally legitimate claims. 160 The
second is in those cases in which a clear distinction is made between formal equality and
substantive equality, with the latter being seen as the basis for CEDAW, giving CEDAW an
asymmetric and social justice-oriented interpretation.161

156
See, e.g., App. B No. 211 (originalist approach mentioned); App. B No. 2 (extensive use of
travaux in order to interpret the meaning of “discrimination” in CEDAW).
157
See, e.g., App. B No. 116; App. B No. 115; App. B No. 269.
158
See, e.g., App. B No. 192; App. B No. 193; App. B No. 205; App. B No. 225; App. B No. 275;
App. B No. 276; App. B No. 5 (sexual harassment of women at their places of work was
incompatible with their dignity and honour and had to be eliminated, and that position was
reflected in the CEDAW); 309 (in dissent).
159
See, e.g., App. B No. 126; App. B No. 158; App. B No. 234; App. B No. 236.
160
See, e.g., App. B No. 146 (Court has held thus: “The human rights for women, including girl
child are, therefore, inalienable, integral and an indivisible part of universal human rights. (….)
[T]he Government of India … ratified … CEDAW and reiterated that discrimination against women
violates the principles of equality of rights and respect for human dignity.”)
161
See, e.g., App. B No. 242 (CEDAW used to justify employer’s childcare payments only to
women to remedy de facto inequalities, Art 4); App. B No. 250 (formal and substantive equality);
App. B No. 190 (Court draws on CEDAW to uphold quotas provision in elections against attack;
CEDAW “required equality which was substantive, not merely formal, and restitutionary in its
reach”); App. B No. 311 (in dissent, CEDAW supporting distinction between prohibiting
 32

V. CONCLUSION
This chapter has a threefold aim, in providing a bridge between the first and third parts of
my CEDAW trilogy: first, to illustrate how the more theoretical issues arising from the use of a
comparative international human rights law analysis discussed earlier in this volume 162 were
brought to bear on, and themselves benefitted from, empirical study of the domestic reception of
a major international human rights convention; second, in the interests of transparency, to provide
a more detailed account of the basic findings of the study that were only briefly sketched out in
the AJIL article, so that readers of that article are able to judge for themselves whether the
analysis presented there stands up; and, third, to set out the methodological and conceptual
difficulties that the empirical study encountered, so that future work in comparative international
human rights law is able to anticipate these challenges and develop strategies to address them,
learning from my mistakes and the shortcomings of the approach I adopted.

distinctions that are oppressive, and those that aim at advancing de facto equality); App. B No. 3
(CEDAW is asymmetric in protecting against discrimination against women and not men); but see
App. B No. 29 (male parents also eligible to receive social security for looking after their children
equivalent to that which adoptive parents receive).
162
McCrudden, supra note 2.
 Appendix A: Sources Used to Compile the List of Cases

The International Law Reports database contains the full text of the printed publication
International Law Reports from Cambridge University Press. The database is updated four times
each year.

International Law Reports is the only publication in the world that is wholly devoted to the regular
and systematic reporting in English of decisions of international courts and arbitrators as well as
judgments of national courts.

International Law Reports covers all significant cases of public international law from 1919 to the
present day, including international boundaries, state and diplomatic immunity, treaties between
states, war, terrorism, and refugee law.

Lexis/Nexis (the following files: LRC (Law Reports of the Commonwealth), BHRC (Butterworths
Human Rights Reports); All Subscribed Indian Cases; All Subscribed Malaysian Cases; All
Subscribed New Zealand Cases.

Westlaw UK: combined UK cases; European Union cases; European Court of Human Rights
cases.

Westlaw International (the following files: WESTLAW ALL STATE AND FEDERAL UNITED
STATES; WESTLAW HONG KONG CASES; WESTLAW ALL CANADIAN CASES Westlaw All
Australian Cases).

World Law Information (the following database: [All WorldII Databases]).

European Gender Equality Review (2008 - 2015) (and previous equivalent publications),
http://ec.europa.eu/social/keyDocuments.jsp?type=0&policyArea=418&subCategory=641&count
ry=0&year=0&advSearchKey=noelr&mode=advancedSubmit&langId=en

Commonwealth Human Rights Law Digest, http://www.interights.org/chr-law-digest/index. html

Interrights Database, http://www.interights.org/chr-law-digest/index.html

International Association of Women Judges, Jurisprudence of Equality Program Decisions,

http://www.iawj.org/JEPcases.html

CEDAW Legal Case Bank - Global Justice Center Asian Pacific Human Rights Information Center,
www.globaljusticecenter.net/casebank

Asia-Pacific Human Rights Information Center, http://www.hurights.or.jp/english/human_

rights_and_jurisprudence/womens-rights/

International Womens' Rights Action Watch Asia Pacific Case Law Database, http://www. iwraw-
ap.org/resources/case-law/gender-equality-laws-around-the-world/

ASIA PACIFIC FORUM ON W OMEN, LAW , & DEVELOPMENT, A DIGEST OF CASE LAW ON THE HUMAN
RIGHTS OF W OMEN (Christine Forster et al. eds., 2003).
 34

Oxford International Law in Domestic Courts, http://opil.ouplaw.com/page/ILDC/oxford-reports-

on-international-law-in-domestic-courts

Equal Rights Trust Legal Cases Bank, http://www.equalrightstrust.org

The following national databases were also searched using the equivalent words and phrases in
the local language:

French Conseil d’Etat; Constitutional Court of Chile; Spanish Constitutional Court; Supreme Court
of Mexico; Colombia Constitutional Court; German Constitutional Court; Italian Constitutional
Court; Israeli Constitutional Court; Russian Constitutional Court

In all cases, searches were conducted of the use of the following words or phrases: “CEDAW”,
“elimination of all forms of discrimination against women”, in English or in the language of the
database.

In addition, I supplemented the database of judicial decision with scholarly literature. Not all
relevant cases made their way into the database. I do not expect any systematic differences
between the literature and court decisions.

THE UN CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST W OMEN: A

COMMENTARY (Marsha A. Freeman et al. eds., 2012).

W ITHOUT PREJUDICE: CEDAW AND THE DETERMINATION OF W OMEN’S RIGHTS IN A LEGAL AND
CULTURAL CONTEXT (Meena Shivadas & Sarah Coleman eds., 2010).

UNITED NATIONS DEVELOPMENT FUND FOR W OMEN, BRINGING EQUALITY HOME: IMPLEMENTING THE
CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST W OMEN (Ilana
Landsberg-Lewis ed., 1998).

W OMEN’S HUMAN RIGHTS: CEDAW IN INTERNATIONAL, REGIONAL AND NATIONAL LAW (Anne
Hellum & Henriette Sinding Aasen eds., 2013).
 Appendix B: CEDAW in Domestic Jurisprudence Case List

Note: countries are listed in alphabetical order, with the exception of Spain, which has been listed
before the Solomon Islands, South Africa and South Korea.

1. Australia [19] Chaudhury v. Bangladesh, Writ Petition

No 7977 of 2008, 29 BLD (HCD) 2009,
[1] Applicant A v Minister for Immigration & ILDC 1515 (BD 2009).
Ethnic Affairs [1997] 190 CLR 225. [20] Dolon v. Gov’t of Bangladesh, Writ
[2] AB v Registrar of Births, Deaths & petition No 4495 of 2009, ILDC 1917 (BD
Marriages [2007] 162 FCR 528. 2011).
[3] Aldridge v Booth [1988] 80 ALR 1. [21] Malkani v. Sec’y of the Ministry of
[4] Attorney-General for the State of WA v Home Affairs, Writ Petition No 3192 of
Marquet [2003] 217 CLR 545. 1992.
[5] Castles v Secretary to the Dep’t of
Justice [2010] VSC 310. 4. Belize
[6] Ferneley v Boxing Authority of NSW &
Minister for Health of Vic. [2001] 115 FCR [22] Roches v. Wade (30 April 2004) Action
306. No 132 (S. Ct) 299.
[7] Gardner v National Netball League Ltd.
[2001] 182 ALR 408. 5. Botswana
[8] Hall, Oliver & Reid v A & A Sheiban Pty.
Ltd. [1989] 20 FCR 217. [23] Attorney General v. Dow [1992] BLR
[9] Jacomb v Australian Municipal Admin. 119 (App. Ct. - Lobatse).
Clerical & Services Union [2004] FCA 1250. [24] Mmusi v. Ramantele [2013] 4 LRC 437
[10] Jordan v North Coast Area Health (High Ct.).
Service (No 3) [2005] NSWADT 296.
[11] McBain v Vic. [2000] 99 FCR 116. 6. British Virgin Islands
[12] Minister for Immigration & Multicultural
Affairs v Khawar [2002] 210 CLR 1. [25] The Queen v. Vernon Anthony Paddy
[13] Qantas Airways Ltd. v Christie [1996] (E. Caribbean Sup. Ct in the H. Ct of J.
138 ALR 19. (Crim.)), [2011] 4 JBVIC 2701, [2011] ECSC
[14] Thomson v. Orica Australia Pty Ltd J0427-
[2002] FCA 939.
[15] U v U [2002] 211 CLR 238. 7. Canada
[16] Victoria v Commonwealth [1996] 187
CLR 416. [26] Canadian Foundation for Children,
Youth & the Law v. Canada, [2004] 1 SCR
2. Austria 76.
[27] Chan v. Canada (Minister of
[17] Oberster Gerichtshof [OGH] [Sup. Ct] Employment and Immigration), [1995] 3
Nov. 29, 2007, 1Ob 234/07d. S.C.R. 593.
[28] R. v. Attorney General, [1999] 1 SCR
3. Bangladesh 330 .
[29] Schachter v. Canada, [1988] 52 DLR
[18] Bangladesh Legal Aid & Servs. Trust v. (4th) 525.
Gov’t of Bangladesh, Writ Petitions No 5863
of 2009, No 754 of 2010, No 4275 of 2010, 8. Chile
ILDC 1916 (BD 2010).
 36

[30] Tribunal Constitutional [T.C.] [Const. [53] C.C., July 2, 2014, C-419-14. Judgment
Ct], 19 June, 2014, Rol de la causa: 2482- C-419/14
13 [54] C.C., June 4, 2014, C-340-14. Case C-
[31] T.C., 13 Mar., 2014, Rol de la causa: 340/14
2503-13 [55] C.C., May 20, 2014, C-288-14. Case C-
[32] T.C., 14 Aug., 2013, Rol de la causa: 288/14
2320-12 [56] C.C., November 7, 2013, T-772-
[33] T.C., 4 July, 2013, Rol de la causa: 13. Case T-772/13
2357-12 [57] C.C., February 28, 2013, T-639-
[34] T.C., 18 June, 2013, Rol de la causa: 13. Case T-639/13
2250-12 [58] C.C., June 28, 2013, T-386-13. Case T-
[35] T.C., 30 May, 2013, Rol de la causa: 386/13
2306-12 [59] C.C., February 13, 2013, SU071-
[36] T.C., 9 Jan., 2013, Rol de la causa: 13. Judgment SU071/13
2358-12 [60] C.C., February 13, 2013, SU070-
[37] T.C., 27 Sept., 2012, Rol de la causa: 13. Judgment SU070/13
2102-11 [61] C.C., November 20, 2013, C-839-
[38] T.C., 3 Nov., 2011, Rol de la causa: 13. Case C-839/13
1881-10 [62] C.C., August 28, 2013, C-579-13. Case
[39] T.C., 20 July, 2011, Rol de la causa: C-579/13
2025-11 [63] C.C., June 13, 2013, C-335-13. Case
[40] T.C., 4 Jan., 2011, Rol de la causa: C-335/13
1683-10 [64] C.C., November 23, 2012, T-992-
[41] T.C., 6 Aug., 2010, Rol de la causa: 12. Case T-992/12
1710-10 [65] C.C., November 22, 2012, T-982-
[42] T.C., 27 Apr., 2010, Rol de la causa: 12. Case T-982/12
1348-09 [66] C.C., September 11, 2012, T-707-
[43] T.C., 31 Dec., 2009, Rol de la causa: 12. Case T-707/12
1444-09 [67] C.C., August 24, 2012, T-662-12. Case
T-662/12
9. Colombia [68] C.C., August 10, 2012, T-628-12. Case
T-628/12
[44] Corte Constitucional [C.C.] [Const. Ct], [69] C.C., August 10, 2012, T-627-12. Case
May 10, 2006, C-355/2006 T-627/12
[45] C.C., June 6, 2014, A173-14. Auto [70] C.C., March 21, 2012, T-234-12. Case
173/14 T-234/12
[46] C.C., May 21, 2013, A098-13. Auto [71] C.C., February 20, 2012, T-109-
098/13 12. Case T-109/12
[47] C.C., February 28, 2012, A038-12. Auto [72] C.C., September 13, 2012, C-715-
038/12 12. Case C-715/12
[48] C.C., October 21, 2011, A226-11. Auto [73] C.C., November 8, 2011, T-843-
226/11 11. Case T-843/11
[49] C.C., April 21, 2010, A069-10. Auto [74] C.C., November 3, 2011, T-841-
069/10. 11. Case T-841/11
[50] C.C., December 11, 2009, A339- [75] C.C., June 30, 2011, T-502-11. Case T-
09. Auto 339/09. 502/11
[51] C.C., September 19, 2008, A237- [76] C.C., July 26, 2011, C-577-11. Case C-
08. Auto 237/08. 577/11
[52] C.C., December 6, 2006, A360- [77] C.C., June 23, 2011, C-490-11. Case
06. Auto 360/06. C-490/11
 37

[78] C.C., July 22, 2010, T-585-10. Case T- [103] C.C., December 7, 2005, C-1299-
585/10 05. Judgment C-1299-1205
[79] C.C., May 3, 2010, T-311-10. Case T- [104] C.C., September 2, 2004, T-853-
311/10 04. Case T-853/04
[80] C.C., June 23, 2010, T 226-10. Case T- [105] C.C., May 25, 2004, C-507-04. Case
226/10 C-507/04
[81] C.C., December 7, 2010, T-1015- [106] C.C., July 14, 1993, T-273-93. Case
10. Judgment T-1015-10 T-273-93
[82] C.C., February 2, 2010, T-045-10. Case
T-045/10 10. Costa Rica
[83] C.C., September 29, 2010, C-776-
10. Case C-776/10 [107] Calderón v. President of the Republic
[84] C.C., May 5, 2010, C-319-10. Case C- (1998) 6 BHRC 306 (Voto no. 716-98).
319/10 [108] Sentencia nº 02196 de Sala
[85] C.C., October 15, 2009, T-732- Constitucional de 11 de Agosto de 1992.
09. Case T-732/09 [109] Sentencia nº 6472 de Sala
[86] C.C., July 31, 2008, T-760-08. Case T- Constitucional de 18 de Agosto de 1999.
760/08
[87] C.C., July 24, 2008, C-750-08. Case C- 11. Czech Republic
750/08
[88] C.C., May 28, 2008, C-540- [110] Nález Ústavního soudu zed ne
08. Judgment. 540. 08 28.02.2012 (ÚS) [Decision of the Const. Ct
[89] C.C., October 22, 2008, C-1035- of February 28, 2012], sp.zn. ÚS 26/11
08. Judgment C-1035-08
[90] C.C., November 9, 2007, T-946- 12. Egypt
07. Case T-946/07
[91] C.C., August 24, 2007, T-661-07. Case [111] Sup. Const. Ct, case No. 23, session
T-661/07 of Mar. 18, 1995, year 16, Official Gazette,
[92] C.C., August 15, 2007, T-636-07. Case No. 14, April 6, 1995.
T-636/07
[93] C.C., August 3, 2007, T-605-07. Case 13. Fiji
T-605/07
[94] C.C., December 5, 2007, T-1052- [112] Balelala v. State [2004] FJCA 49;
07. Judgment T-1052-07 [2005] 5 LRC 365 (Ct. App.).
[95] C.C., July 25, 2007, C-552-07. Case C- [113] Fijian Teachers Ass’n v. President of
552/07 the Republic of Fiji Islands [2008] FJHC 59
[96] C.C., February 7, 2007, C-075- (High Ct.).
07. Case C-075/07 [114] LK and JVR [2009] FJHC 60 (High
[97] C.C., September 27, 2006, C-804- Ct.).
06. Case C-804/06 [115] NK and ZMR [2009] FJHC 95 (High
[98] C.C., May 10, 2006, C-355-06. Case C- Ct.).
355/06 [116] PP and RP [2009] FJHC 72 (High Ct.).
[99] C.C., April 25, 2006, C-322-06. Case C- [117] Prakash v. Narayan [2000] FJHC 144
322/06 (High Ct.).
[100] C.C., October 18, 2005, T-1037- [118] State v. Bechu [1999] FJMC 3; (1999)
05. Judgment T-1037-05 3 CHRLD 155 (First Class Magis. Ct).
[101] C.C., May 24, 2005, C-534-05. Case [119] State v. SNM [2011] FJHC 26 (High
C-534/05 Ct.).
[102] C.C., December 7, 2005, C-1300-
05. Judgment C-1300-1305 14. Finland
 38

[120] A v. Directorate of Finnish [136] C. Masilamani Mudaliar v. Idol of Sri

Immigration, 5.12.2005/3219, KHO:2005:87, Swaminathaswaminat Haswami Thirukoil,
ILDC 594 (Sup. Admin. Ct. 2005). (1996) 8 S.C.C. 525 (India).
[137] Chairman Ry. Bd. v. Das, A.I.R. 2000
15. France S.C. 988 (India).
[138] Gaddam Ramakrishnareddy v.
[121] Conseil d’Etat [C.E.] [Council of State], Gaddam Rami Reddy, (2010) 9 S.C.C. 602
Apr. 30, 1997, no. 176205. (India).
[122] C.E., Nov. 27, 2000, no. 219375. [139] Gaurav Jain v. Union of India, A.I.R.
[123] C.E., Nov. 7, 2001, no. 230324. 1997 S.C. 3021 (India).
[124] C.E., Oct. 15, 2004, no. 241661. [140] Hariharan v. Reserve Bank of India,
[125] C.E., Apr. 20, 2005, no. 264348. (2000) 2 S.C.C. 228 (India).
[141] Kishwar v. State of Bihar, (1996) 5
S.C.C. 125 (India).
16. Greece [142] Laxmi Mandal v. Deen Dayal
Harinagar Hosp., (2010) D.L.T. 9 (Delhi
[126] Symboulion Epikrateias [S.E.] H.C.)
[Supreme Administrative Court] 2831/2003; [143] Mun. Corp. of Delhi v. Female
S.E. 2832/2003; S.E. 2833/2003; S.E. Workers (Muster Roll), (2000) 2 S.C.R. 171
192/2004; S.E. 2388/2004; S.E. 1667/2009. (India).
[144] Sakshi v. India, (2004) 5 S.C.C. 518
17. Guatemala (India).
[145] Shiva v. Bandhopadhyaya, A.I.R.
[127] Corte Constitucional [C.C.] [Const. Ct], 1999 S.C. 1149 (India).
7 de Marzo de 1996, Sentencia no. 936-95. [146] Valsammapaul v. Cochin Univ., (1996)
1 S.C.R. 128 (India).
18. Hong Kong [147] Vishaka v. State of Rajasthan, (1997)
6 S.C.C. 241 (India).
[128] DD v. LKW, [2008] 2 H.K.L.R.D. 523 [148] Vasantha R. v. Union of India, (2001)
(C.A.) L.L.J. 843 (Madras H.C.)
[129] Equal Opportunities Comm’n v. Dir. of
Educ., [2001] 2 H.K.L.R.D. 690 (C.F.I.)
[130] L v. C, [2007] 3 H.K.L.R.D. 819 (C.A.) 21. Indonesia
[131] Sec’y for Justice v. Chan Wah [2000]
3 H.K.C.F.A.R. 459 (C.F.A.) [149] Const. Ct, 14/PUU-V/2012.
[150] Const. Ct, 29/PUU-V/2007 .
19. Hungary [151] Const. Ct, 12/PUU-VI/2008.
[152] Const. Ct, 74/PUU-XI/2013.
[132] Alkotmánybíróság [AB] [Const. Ct] [153] Const. Ct, 1/PUU-VIII/2010.
Jan. 10, 2011, 1/2011 (I 14), AK 2011: 3. [154] Const. Ct, 20/PUU-XI/2013.
[155] Const. Ct, 10-17-23/PUU-VII/2009.
20. India [156] Const. Ct, 6/PUU-VII/2009.
[157] Const. Ct, 88/PUU-X/2012.
[133] Anuj Garg v. Hotel Ass’n of India, [158] Const. Ct, 22-24 PUU-VI/2008.
A.I.R. 2007 S.C. 663 (India). [159] Nurhatina Hasibuan v Pt. Indonesia
[134] Apparel Exp. Promotion Council v. AK Toray Synthetics, No.
Chopra, (1999) 1 S.C.C. 759 (India). 651/PDT/1988/PT.DKI (Jakarta High Ct.)
[135] Arun Kumar Agrawal v. Nat’l Ins. Co. (Jul. 2, 1988).
Ltd., [2010] I.N.S.C. 516, [2011] 1 L.R.C.
304 (India). 22. Ireland
 39

[160] Equal. Auth. v. Portmarnock Golf [179] Ochieng v. Att’y Gen., Petition No. 409
Club, [2009] IESC 73 (S.C.) (Ir.) of 2009, Apr. 20, 2012, ILDC 1913 (KE
[161] J.J. v. L. Mc. L., [2013] IEHC 549 (H. 2012) (H.C.K.)
Ct.) (Ir.) [180] P.A.O. v Attorney Gen. (2012) eKLR
(H.C.K.).
23. Japan [181] Re Wachokire, Succession Cause No.
192 of 2000, Aug. 19, 2002 (Thika Chief
[162] Hiroshima Kōtō Saibansho [Hiroshima Magist. Ct).
High Ct.] Nov. 28, 1991, 1406 HANREI JIHŌ [182] RM v. Attorney Gen., Civil Case 1351,
3. ILDC 699 (KE 2006) (H.C.K.)
[163] Nagoya Kōtō Saibansho [Nagoya High [183] Rono v. Rono (2005) 1 KLR (G&F)
Ct.] Oct. 30, 1996, 707 RŌDŌ HANREI 37. 803, ILDC 1259 (KE 2005) (H.C.K.)
[164] Nagoya Kōtō Saibansho [Nagoya High
Ct.] Sept. 4, 2013. 25. Kiribati
[165] Osaka Kōtō Saibansho [Osaka High
Ct.] Sept. 25, 1998, 992 HANREI TIMES 103. [184] Republic v. Timiti [1998] KIHC 35;
[166] Osaka Kōtō Saibansho [Osaka High HCCrC 43.97 (17 August 1998) (High Ct).
Ct.] May 16, 2000.
26. Latvia
[167] Osaka Kōtō Saibansho [Osaka High
Ct.] Sept. 26, 1991, 602 RŌDŌ HANREI 72.
[185] Sup. Ct, Aug. 23, 2013, SKA-7/2013.
[168] Saikō Saibansho [Sup. Ct.] No. 250, [186] Sup. Ct, Dec. 3, 2010, SKA –
2000 (Gyohi) No. 249. 527/2010.
[169] Tōkyō Kōtō Saibansho [Tokyo High [187] Sup. Ct, Dec. 8, 2010, SKC-
Ct.] Mar. 29, 1991, No. 819. 11706/2010.
[170] Tōkyō Kōtō Saibansho [Tokyo High [188] Administrative District Court, Dec. 16,
Ct.] May 29, 1996, No. 4034, 694 RŌDŌ 2008, A42619207 A3692-08/3.
HANREI 29.
[171] Tōkyō Kōtō Saibansho [Tokyo High 27. Lesotho
Ct.] Dec. 22, 2000, 796 RŌDŌ HANREI 5.
[172] Tōkyō Kōtō Saibansho [Tokyo High [189] Masupha v. Senior Resident
Ct.] Mar. 24, 2005, 1899 HANREI JIHŌ 101. Magistrate for the Subordinate Court of
[173] Tōkyō Kōtō Saibansho [Tokyo High Berea [2013] LSHC 9, 5 LRC 517 (High Ct.
Ct.] Feb. 27, 2007, (Gyoko) No. 124. (Const. Div.))
[174] Tōkyō Kōtō Saibansho [Tokyo High [190] Ts'epe v. Independent Electoral
Ct.] Dec. 27, 2011, (Gyoko) No. 2946. Commission, Appeal Judgment, C of A (Civ)
[175] Tōkyō Kōtō Saibansho [Tokyo High No 11/05, ILDC 161 (LS 2005).
Ct.] Mar. 28, 2014 (Gyoko) No. 3821.
[175a] Tōkyō Chihō Saibansho [Tokyo Dist. 28. Malaysia
Ct.] May 29, 2013, 2196 HANREI JIHŌ 67.
[191] Fernandez v. Sistem Penerbangan
24. Kenya Malaysia & Kesatuan Sekerja Kakitangan
Sistem Penerbangan Malaysia [2005] 3 MLJ
[176] Kamunzyu v. Kamunzyu, Succession 681, ILDC 1036 (MY 2005).
Cause 303 of 1998, Dec. 15, 2005, ILDC
1342 (KE 2005) (H.C.K.) 29. Mexico
[177] Fed’n of Women Lawyers Kenya v.
Attorney Gen. (2011) 5 LRC 625 (H.C.K.) [192] Amparo Directo 276/2013, Noveno
[178] Estate of Lerionka Ole Ntutu (2008) Tribunal Colegiado en Materia Penal del
KLR 1 (H.C.K.) Primer Circuito, Semanario Judicial de la
 40

Federación y su Gaceta, Novena Época, Affairs (Writ No. 1379 of the Year 2048, 11
Tomo IV, Enero de 2014, Página 3189. N.K.P 2048, 749 (S. Ct. 1992)
[193] Amparo en Revisión 300/2012, Tercer [207] Meera Kumari v. His Majesty’s Gov’t
Tribunal Colegiado en Materia Civil del (S. Ct. 1995)
Primer Circuito, Semanario Judicial de la [208] Rina Bajracharya v. HMG Secretariat
Federación y su Gaceta, Décima Época, of the Council of Ministers (Writ No. 2812 of
tomo III, Marzo de 2013, Página 1908. the year 2054) BS (S. Ct., 20xx).
[194] Collegiate Court First Circuit Center
Auxiliary, Eighth Region, Amparo direct 32. Netherlands
135/2012 (auxiliary 301/2012
notebook), May 25, 2012 [209] Rb. Den Haag 7 September 2005, NJ
[195] Amparo Directo 799/2008, Tercer 2005, 473.
Tribunal Colegiado en Materia de Trabajo [210] Rb. Den Haag 30 October 2007, KG
del Cuarto Circuito, Semanario Judicial de 2007, 1099.
la Federación y su Gaceta, Novena Época, [211] ABRvS 5 December 2007, LJN 2007,
Tomo XXIX, Febrero de 2009, Página 2035 BB9493.
[212] Hof Gravenhage 20 December 2007,
30. Namibia LJN 2007, BC0169.
[213] HR 1 April 2011, LJN 2011, BP3044.
[196] Müller v. President of the Republic of [214] HR 9 April 2010, LJN 2010, BK4547.
Namibia, [2000] 1 LRC 654 (S. Ct). [215] HR 9 April 2010, LJN 2010, BK4549.

31. Nepal 33. New Zealand

[197] Dhungana v. Nepal (Writ No. 3392 of [216] Coburn v. Hum. Rts. Comm’n [1994] 3
the Year 2050), 6 N.K.P. 2052, 462 (S. Ct. NZLR 323 (H.C.)
1995). [217] Mansouri-Rad v. Dep’t of Labour
[198] Sapana Pradhan v. Prime Minister [2005] NZAR 60, ILDC 217 (NZ 2004)
(Special Writ No. 64 of the Year 2061) (S. (Refugee Status App. Auth.)
Ct. 2005). [218] N.Z. Van Lines Ltd. v. Proceedings
[199] Meera Dhungana v. Office of the Comm’r [1995] 1 NZLR 100 (H.C.)
Prime Minister (Special Writ No. 64 of the [219] Quilter v. Att’y Gen. [1998] 1 NZLR
Year 2061) (S. Ct. 2005). 523 (C.A.)
[200] Rama Panta Kharel v. Office of Prime
Minister (Writ No. 63-WS-0019 of the Year 34. Nigeria
2060) (S. Ct. 2008).
[201] Jit Kumari Pangeni (Neupane) v. [220] Mojekwo v Ejikeme [2000] 5 NWLR
Prime Minister (Writ No. 64-0035 of the 402 (C.A.)
Year 2063) (S. Ct. 2008). [221] Mojekwu v Mojekwu [1997] 7 NWLR
[202] Achyut Prasad Kharel v. Office of 283 (C.A.)
Prime Minister (Writ No. 3352 of the year [222] Mojekwu v. Iwuchukwu, [2004] 11
2061) BS (S. Ct. 2008). NWLR 196 (S.C.)
[203] Meera Dhungana v. Prime Minister
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[204] Prakash Mani Sharma v. GON (Writ [223] Sup. Ct, HR-2009-2129-U - Rt-2009-
No. 064-WO-0230) (S. Ct. 1999). 1389, 11 November 2009.
[205] Pant v. Nepal Gov’t (Writ No. 917 of [224] Agder Court of Appeal, January. 12,
the Year 2064), 138 I.L.R. 500 (S. Ct. 2009, LA-2008-70679.
2007).
[206] Mina Kumari Tilija v. Ministry of Home 36. Pakistan
 41

[239] Essentuki Mun. Ct., Stavropol Krai,

[225] Humaira Mehmood v. The State, Mar. 24, 2011, Case N 10-7/2011.
(1999) PLD (Lah.) 494.
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[227] Sarwar Jan v. Abdur Rehman, (2004) [240] Police v. Apelu [2010] WSSC 178 (S.
CLC 17. Ct.).
[228] Suo Moto No. 1/K of 2006, Federal
Shariat Court, (2007) PLD (FSC) 1. 42. Spain

37. Paraguay [241] S.T.C., Nov. 7, 2011 (152/2011).

[242] S.T.C., July 16, 1987 (128/1987).
[229] Invalidity of Legal Fact of Simulation, [243] S.T.C., Dec. 14, 1992 (229/1992).
Re Aliendre v Mendoza & Sanabria, Appeal [244] S.T.C., Mar. 25, 1993 (109/1993).
Judgment No 84, Jul. 27, 2006, ILDC 1522 [245] S.T.C., June 14, 1993 (187/1993).
(PY 2006). [246] S.T.C., July 3, 1997 (126/1997).
[247] S.T.C., May 20, 2002 (115/2002).
38. Peru [248] S.T.C., July 4, 2005 (182/2005).
[249] S.T.C., July 3, 2006 (214/2006).
[230] RJSA, widow of R (on behalf of GRS [250] S.T.C., Jan. 29, 2008 (12/2008).
in the capacity of official guardian) v. [251] S.T.C., Jan. 19, 2009 (13/2009).
Peruvian Sup. Ct., No 3081-2007-PA/TC, [252] S.T.C., June 7, 1994 (173/1994).
ILDC 969 (PE 2007) (Const. Ct.) [253] S.T.C., Nov. 28, 1994 (317/1994).

39. Philippines 43. Solomon Islands

[231] Romualdez-Marcos v. Comm’n on [254] Hatilia v. Attorney General [2012]

Elections, G.R. No. 119976, 248 S.C.R.A. SBHC 101.
300 (S.C., 1995). [255] Rajapaksha v. Attorney General
[232] Halagueña, et al. v. Philippine Airlines, [2011] SBHC 189.
Inc., G.R. No. 172013, 602 S.C.R.A. 297 [256] Regina v. Gua [2012] SBHC 118;
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[233] Pharm. & Health Care Assoc. of the
Phil. v. Health Sec’y Francisco T. Duque III, 44. South Africa
PHSC 1162 (Oct. 9, 2007).
[233a] Sec’y of Nat’l Def. et al. v. Manalo, [257] Bhe v. Magistrate Khayelitsha 2005
PHSC 1086 (Oct. 7, 2008). (1) BCLR 1376 (CC) (S. Afr.).
[258] Carmichele v. Minister of Safety &
40. Russia Security 2002 (1) LRC 553 (CC) (S. Afr.).
[259] F v. Minister of Safety & Security 2011
[234] Const. Ct, Judgment of Mar. 22, 2012, (5) LRC 133 (CC) (S. Afr.)
No. 617-O-O. [260] Gumede v. President of the Republic
[235] Sup. Ct, Judgment of Feb. 12, 2004, of S. Afr. 2008 (4) LRC 351 (CC) (S. Afr.).
No. 49-G03-164. [261] Hassam v. Jacobs 2008 (4) All SA350
[236] Alexeevsky Dist. Ct., Belgorod C419 (CC) (S. Afr.).
Region, Case N 2-687/2014. [262] Hoffmann v. S. Afr. Airways 2001 (2)
[237] Leninsky Dist. Ct., Jewish LRC 277 (CC) (S. Afr.).
Autonomous Region, Case N 2-84A/2012. [263] Kaunda v. President of S. Afr. 2005
[238] Samara Dist. Ct., Aug. 20, 2012, Case (4) SA 235 (CC) (S. Afr.).
N 2-2613/2012-2311/2012.
 42

[264] Kylie v. Comm’n for Conciliation,

Mediation & Arbitration, 2011 (1) LRC 336 49. Tuvalu
(A) (S. Afr.).
[265] Mayelane v. Ngwenyama 2012 (1) [282] Tepulolo v. Pou [2005] TVHC 1, 5
LRC 608 (A) (S. Afr.). LRC 701 (High Ct.)
[266] S v. Baloyi 2000 (2) SA 425 (CC) (S.
Afr.). 50. Uganda

45. South Korea [283] Mukasa v. Attorney General, ILDC

1285 (UG 2008) (High Ct., Dec. 22 2008).
[267] Const. Ct., 98Hun-Ma363, Dec. 23, [284] Uganda Ass’n of Women Lawyers v.
1999. Attorney General [2004] UGCC 1, ILDC
[268] Const. Ct., 97Hun-Ka12, Aug. 31, 1137 (UG 2004) (Const. Ct., Mar. 10, 2004).
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[269] Sup. Ct., 2002Da1178, Jul. 21, 2005. Case No 146 of 2001 (High Ct., Oct. 21,
2002).
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51. United Kingdom
[270] Bundesgericht [BGer] [Federal Sup.
Ct] Oct. 7, 1998, 124 ENTSCHEIDUNGEN DES [286] EM (Lebanon) v. Sec’y of State for the
SCHWEIZERISCHEN BUNDESGERICHTS [BGE] Home Dep’t, [2006] EWCA (Civ) 1531.
121. [287] AMM (Somalia) v. Sec’y of State for
the Home Dep’t, [2011] UKUT 445.
47. Tanzania [288] Jomah v. Attar, J (A Child), [2004]
EWCA (Civ) 417.
[271] Chilla v. Chilla, Civil Appeal No. 188 of [289] R. (on the application of HH) v.
2000 (HC) (unreported). Westminster City Magistrates' Ct., [2012]
[272] Ephraim v Pastory, Civil Appeal no 70 UKSC 25.
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[273] Jonathan v. Republic, Criminal Appeal Dep’t, [2006] UKHL 46.
No. 53 of 2001 (HC) (unreported). [291] R (on the application of Aguilar Quila)
[274] Mohamed v. Makamo, Civil Appeal v. Sec’y of State for the Home Dep’t; R (on
No. 45 of 2001 (HC) (unreported). the application of Bibi and another) v. Sec’y
[275] Mtefu v. Mtefu, Civil Appeal No. 214 of of State for the Home Dep’t, [2011] UKSC
2000 (HC) (unreported). 45.
[276] Ndossi v. Ndossi, Civil Appeal No. 13 [292] R v. Sec’y of State for Work &
of 2001 (HC) (unreported). Pensions, [2002] EWHC 191.
[277] Njobeka v. Mkorogoro, P.C. Civil [293] R. (on the application of Mansoor) v.
Appeal No. 6 of 2001 (HC) (unreported). Sec’y of State for the Home Dep’t, [2011]
EWHC (Admin) 832.
48. Turkey [294] R v. Immigration Appeal Tribunal,
[1999] 2 AC 629.
[278] Anayasa Mahkemesi, Esas No. [295] R. (Khan) v Oxfordshire Cnty. Council,
2010/119, Karar No. 2011/165. [2002] EWHC (Admin) 2211.
[279] Anayasa Mahkemesi, Esas No. [296] Regina (Amicus-MSF Section) v.
2009/85, Karar No. 2011/49, ILDC 1910 (TR Sec’y of State for Trade & Industry, [2004]
2011) EWHC (Admin) 860.
[280] Anayasa Mahkemesi, Esas No. [297] Regina (Hoxha) v. Special
1990/30, Karar No. 1990/31. Adjudicator, [2005] UKHL 19.
[281] Anayasa Mahkemesi, Esas No. [298] HJ (Iran) v. Sec’y of State for the
1996/15, Karar No. 1996/34. Home Dep’t, [2010] UKSC 31.
 43

[299] Rolls-Royce v. Unite the Union, [2009] 54. Zambia

EWCA (Civ) 387.
[300] The Queen on the Application of Zakir [320] Longwe v Intercontinental Hotels,
Husan v. The Sec’y of State for the Home (1993) 4 LRC 221 (S.C.)
Dep’t, [2005] EWHC (Admin) 189.
[301] X v. Mid Sussex Citizens Advice 55. Zimbabwe
Bureau, [2010] I.C.R. 423.
[302] Yemshaw v. Hounslow London
[321] Magaya v. Magaya, [1999] 3 LRC 35
Borough Council, [2011] UKSC 3.
(S.C.)
[303] ZH v. Sec’y of State for the Home
[322] Chivise v. Dimbwi [2004] ZWHHC 4
Dep’t, [2011] UKSC 4.
(H.C.)
[323] Frederick Mwenye v. Textile Inv. Co.,
52. United States
J. No. LRT/MT/11/01, Case No.
LRT/MT/34/94 (Lab. Rel. Trib., May 7,
[304] Abankwah v. I.N.S., 185 F.3d 18 (2d
2001).
Cir. 1999).
[324] Mapingure v. Minister of Home Affairs
[305] Abay v. Ashcroft, 368 F.3d 634 (6th
[2014] ZWSC 22 (S.C.)
Cir. 2004).
[306] Bah v. Mukasey, 529 F.3d 99 (2d Cir.
2008).
[307] Boureslan v. Aramco, 857 F.2d 1014
(5th Cir. 1988).
[308] Cauthern v. State, 145 S.W.3d 571
(Tenn. Crim. App. 2004).
[309] Fisher v. I.N.S., 79 F.3d 955 (9th Cir.
1996).
[310] Flores v. S. Peru Copper Corp., 414
F.3d 233 (2d Cir. 2003).
[311] Gratz v. Bollinger, 539 U.S. 244
(2003).
[312] Grutter v. Bollinger, 539 U.S. 306
(2003).
[313] Mohammed v. Gonzales, 400 F.3d
785 (9th Cir. 2005).
[314] Niang v. Gonzales, 492 F.3d 505 (4th
Cir. 2007).
[315] State v. Romano, 155 P.3d 1102
(Haw. 2007).
[316] United States v. Bond, 681 F.3d 149
(3d 2012), rev’d 134 S.Ct. 2077 (2014).

53. Vanuatu

[317] Awop v. Lapenmal, Land Case 10 of

1984, [2007] VUIC 2 (Malekula Island Ct.,
Oct. 15, 2007).
[318] Joli v. Joli, Civil Appeal Case No.11 of
20 (Ct. App., Nov. 17, 2003).
[319] Noel v. Toto, Case No. 18 of 1994 (S.
Ct., Apr. 19, 1995).