Traversing the Terrain of Women's Property Rights Under the CEDAW

This volume starts from two central observations. The first is that the CEDAW's property framework is expansive, including a wide range of economic assets ranging from agricultural credit to intellectual property, all of which are protected without discrimination on the basis of sex under Article 2 of the CEDAW.

The second is the recognition that the CEDAW Committee, the body of independent experts that monitors implementation of the Convention, applies formal, substantive, and intersectional equality perspectives in its analysis of property rights. Of these, the most innovative is the intersectional perspective, which both underscores the transformative potential of property rights and acknowledges that in protecting the rights of certain collectives, “individual rights to property may need to give way to protecting the rights of groups of women, such as Indigenous or rural women” (p. 9). In utilizing all of these approaches, the “Committee adheres to a holistic approach to human rights . . .” that has produced a series of important doctrinal innovations (id.).

Chapter One introduces the book's overall layout along with its aims and purposes in evaluating CEDAW jurisprudence. It begins with the recognition of the struggles that women face in accessing property rights otherwise guaranteed to men, emphasizing Catherine MacKinnon's now famous quotation, “Women are more likely to be property than to own any” (p. 1). The chapter outlines the current framework of international property protections, focused on the CEDAW, Universal Declaration of Human Rights, ICCPR, ICESCR, Convention on Racial Discrimination (CERD), and regional treaties, including the American Convention on Human Rights, European Convention for the Protection of Human Rights, and African Charter on Human and Peoples’ Rights. The authors also note jurisprudence stemming from courts that interpret these treaties and, additionally, NGOs and civil society coalitions with a focus on property rights. They then conclude this section with a discussion of property theorists and philosophers in the West, ranging from Hersch Lauterpacht, to Mary Wollstonecraft, to Joseph Raz.

Helpfully, the authors also provide a detailed account of the history surrounding CEDAW's drafting, followed by an overview of relevant CEDAW provisions, notably Articles 11, 13, 14, 15, and 16, which cover not only immovable property but also social benefits, bank loans, and credit.

International law has long been preoccupied with questions about property; quoting Martti Koskenniemi, the authors note that “the most important rights struggles from the Magna Carta to American and French revolutions and beyond have been about the recognition of rights to own property” (p. 11). One of the book's valuable features is the authors’ contextualization of the CEDAW's property commentary, analysis, and jurisprudence as a departure from traditional Lockean notions of property, which hold that the rule of law necessarily includes protections for property, by deeming individual property rights to be non-absolute in relation to the social security guarantees enumerated in Article 14 of the CEDAW.Footnote ⁶ The authors analyze the CEDAW Committee's overarching concept of property rights as one being a deviation from Blackstone's concept of “despotic dominion” over private property to prioritize a theory of change that protects women's lives and well-being (p. 6). Overall, the approach encourages comparison of the CEDAW Committee's approach with that of the theories of the political philosopher, Jeremy Waldron, who “readily accepts the contention that the equal application of property rights satisfies the rule of law requirements that the law be intelligible, clear, and predictable” (p. 18). This nudge toward clarity is a helpful direction.

The second chapter, which was written by Bauder, is a tour d'horizon of the CEDAW Committee's property jurisprudence, covering a variety of substantive areas. The section begins with a helpful mapping of the Committee's structure and its mandate, highlighting four main work products: general recommendations (GRs); communications; Inquiry Reports; and concluding observations (COs). These four primary sources are subsequently woven together with analysis of the Convention itself to provide a thematic overview of CEDAW property jurisprudence, split into eight major categories.

Turning first to property rights in marriage and family relations, the authors identify CEDAW Articles 15, which provides that states shall “accord to women equality with men before the law,” and 16(1)(h), which requires “the same rights for both spouses” with respect to property rights, as “the core provisions that govern women's property rights under CEDAW” (p. 47). The analysis of two communications (Cecilia Kell v. Canada, focused on the right to administer property, and E.S. and S.C. v. United Republic of Tanzania, on widows’ rights in inheritance) add insights into the Committee's property jurisprudence. In the latter case, the Committee asserted that women's equal rights to own, administer, and enjoy property is a right that glues together a tapestry of rights and is “central to their financial independence and may be critical to their ability to earn a livelihood and to provide adequate housing and nutrition for themselves and for their children . . . .” Footnote ⁷

The authors’ discussion of housing rights in L.A. et al. v. North Macedonia and E.R. v. North Macedonia, both of which found CEDAW violations upon the eviction of pregnant Roma women from informal settlements, reflects the CEDAW Committee's emphasis on substantive and intersectional equality and an understanding of the ways in which property allocation and distribution form a critical part of the structural discrimination that disadvantages women of minority status under Article 14 of the CEDAW.

The authors’ examination of intellectual property and seed rightsFootnote ⁸ opens up a renewed vision for the CEDAW Committee under both General Recommendation 34 on rural women and General Recommendation 39 on Indigenous women. In General Recommendation 39, the CEDAW Committee's most recently adopted General Recommendation, the Committee recognizes the importance of protecting “Indigenous women's intellectual property; cultural heritage; scientific and medical knowledge; forms of literary, artistic, musical and dance expressions; and natural resources . . .” and calls upon states parties to prevent the “unauthorized use of their intellectual property, cultural heritage, scientific and medical knowledge, forms of literary, artistic, musical and dance expressions; and natural resources by third parties.”Footnote ⁹ By discussing intellectual property, a hitherto underexamined aspect of the Committee's analysis of state party reports, the authors highlight a lacuna that must be filled by the Committee. The analysis reveals a path that is yet in its incipient stage. However, recently at the 89th Session of the CEDAW, the author in the constructive dialogue asked questions on Indigenous data sovereignty and suggested introducing Indigenous epistemology into data governance, in line with the developments on the Intergovernmental Committee of the World Intellectual Property Organization (WIPO).

Readers new to the CEDAW jurisprudence will learn much from the discussion of the Optional Protocol cases dealing with compensation and reparations for the loss of maternity and pension benefits.Footnote ¹⁰ The Committee's view in Elisabeth de Blok et al v. Netherlands, was that the Convention's “clear and unambiguous provision that all women who perform paid work are entitled to a period of paid leave” applied to “self-employed women . . . .” Finding that the state had removed an existing maternity leave scheme for self-employed women without offering a substitute, the Committee determined that the “State party must therefore compensate them for the loss of income that they suffered.”

Chapter Two's final theme, on the nexus between property and gender-based violence, is an important part of the book, and highlights that structural impediments to property ownership are often a cause and consequence of gender-based violence. In Ms. A.T. v. Hungary—a fundamental case discussed in this section—not only did Ms. A.T. have to leave her property due to spousal abuse, but she was also left unable to access shelters because they were not accessible to her child with severe disabilities. Additionally, neither protection orders nor restraining orders were available under Hungarian law. The Committee concluded Hungary had failed to properly protect Ms. A.T., as Hungarian law did not allow battered individuals “exclusive use of the . . . apartments on grounds of domestic violence” and Hungary had allowed women's safety to be “superseded by other rights, including the right to property” (p. 147). Ms. A.T. v. Hungary, together with Şahide Goekce v. Austria, Yildirim v. Austria, V.K. v. Bulgaria, J.I. v. Finland, and S.T. v. Russian Federation, eventually concluded that “[t]he perpetrator's private property rights had to be limited to protect women's well-being and safety” after instances of domestic violence (pp. 146–53).

Chapter Three explores critiques of the CEDAW within the international human rights law framework. Drawing heavily from Hilary Charlesworth, Christine Chinkin, and Shelley Wright, the authors explain how early critiques claimed that the CEDAW overly relied on individual, more Western-oriented rights over collective rights and worried that the CEDAW would marginalize women's rights. More recent critiques center on the need for a greater emphasis on intersectionality, and claim that the CEDAW system, by seeking a form of equality within a male-dominated world, is insufficiently transformational. This chapter also contains an analysis of an interesting rewrite of one of the cases discussed in Chapter Two, Cecilia Kell v. Canada, which reorients the communication toward intersectionality and transformational equality.

Another critique discussed in this chapter claims that true gender equality requires a rejection of neoliberal economics and a reconfiguration of capitalism. The market economy can indeed be understood as a double-edged sword. While the market economy has the potential to economically empower women, its unequivocal supporters often overlook the androcentric structure of the market. Some of the critiques in this framework can be offset by a more thorough discussion of the role of the Sustainable Development Goals (SDGs) as a way to understand development as fairness. After all, to quote Amartya Sen in his groundbreaking book Development as Freedom, “Nothing is as important today in the political economy of development as the leadership of women.”Footnote ¹¹

In Chapter Four, the authors push back on the critiques of the CEDAW discussed in Chapter Three. By highlighting the ways in which the CEDAW Committee's jurisprudence has evolved beyond ensuring formal equality to endorse substantive equality, vindicated the rights of groups of women as well as individuals, and recognized the cumulative effects of intersectional discriminatory practices, the authors make the case that the Committee's jurisprudence advances the CEDAW's mission of improving the status of women. The authors do so largely by identifying the critiques raised in Chapter Three and contrasting them with the jurisprudence laid out in Chapter Two. The authors note, for example, that while there is a distinct focus on formal equality in the CEDAW, there is no less a focus on substantive equality in cases where “states’ failures to take into account structural, cultural, or other barriers faced by women generally or by particular groups of women produce unequal results” (p. 188).

Drawing on these comparisons between the critiques and the CEDAW's jurisprudence, the authors identify five lessons: (1) the Committee's interpretation of CEDAW provisions is not static but instead evolves over time; (2) the CEDAW's property jurisprudence does not reflect a “neoliberal” agenda; (3) the CEDAW does not focus solely on universal concepts and binary arguments; (4) other criticisms of the CEDAW need nuance—noting, for example, that the CEDAW does encourage enforcement of women's rights in the private sphere; and (5) there is a need for the CEDAW's supranational scrutiny of domestic actions, as male-dominated states cannot be trusted to provide justice for women.Footnote ¹² Taken together, these lessons paint the CEDAW as a consistently growing system that, while imperfect, occupies an important role in the protection of women's property rights and does so in a sometimes unconventional, intersectional, and transformative manner.

As a recent member of the CEDAW Committee, I can attest to the primacy that the Committee accords to intersectional analysis in every article of the CEDAW, including as a foundational approach to the interpretation of Article 14. Yet, I agree that there is always more to be done to address the ways in which gender, race, ethnicity, religion, caste, national origin, age, disability, sexual identity, age, and evolving categories of difference interact to impact the CEDAW's fundamental guarantees.Footnote ¹³

The authors highlight legal anthropologist Sally Merry's concept of the need for “vernaculization” of rights to respond to local contexts and the need for the CEDAW Committee to be sensitive to the context of the community.Footnote ¹⁴ While Merry's arguments are a critical reminder to translate the CEDAW's recommendations and jurisprudence into the local idiom, it is also important to realize that the CEDAW's role in interpreting Article 5 is to address harmful cultural practices, including cultural practices that are at odds with gender equality.Footnote ¹⁵ And in response to the important and useful critiques of other scholars and practitioners, one idea to consider is that the Protocol to the African Charter on Human and People's Rights on the Rights of Women in Africa (also known as the Maputo Protocol)—which bolsters the CEDAW—calls on states to combat harmful cultural practices.Footnote ¹⁶ In fact, it calls upon states parties to take all measures to support women's participation in the “formulation of cultural policies at all levels.”Footnote ¹⁷ At the same time, the CEDAW Committee's stand is against harmful Footnote ¹⁸ cultural traditions, such as unequal inheritance laws that are at odds with gender equality. In augmenting this norm, I would like to share a popular idiom in the Democratic Republic of Congo, “women inherit wrapper clothing, [and] men inherit fields.”Footnote ¹⁹

In their analysis, the authors respond to the critique that the CEDAW Committee shies away from challenging “social/economic class or existing hierarchies of power and wealth” and challenges broader critiques that these treaty bodies were not designed to “confront and challenge the discomforting structural realities imposed by the pursuit of capitalism and its reliance on protecting property” (p. 176). Significantly referencing the work of feminist legal scholars Hilary Charlesworth, Christine Chinkin, and Shelley Wright, Alvarez and Bauder offer a provocative argument by demonstrating how for those who “draw a close tie between international law's defense of capitalism and the latter's defense of patriarchy, international law disempowers women as much or more than it empowers them” (p. 25). Through this, the authors effectively examine international law through the prisms of the CEDAW and feminist analysis and outline the ways in which it suffers from defects that mirror those of domestic legal systems that are more in line with the market economy.

Chapter Five is a fascinating and a never-before-attempted comparison between the international investment arbitration (IIA) law and women's property rights under the CEDAW, which the authors define as “two separate worlds.” The authors note from the outset some complexity in this comparison, including the fact that the CEDAW is a system of jurisprudence stemming from one treaty and one treaty body, while IIA covers numerous agreements and arbitration panels. To overcome this, the chapter draws largely from a few U.S. bilateral investment treaties (BITs) and the U.S. Model BIT of 2012 (p. 237). Perhaps it might be apposite to examine other IIA examples as well, including China's Foreign Investment Law, adopted by the National People's Congress in 2019 to promote the development of the socialist market economy while opening up foreign investment.Footnote ²⁰

An interesting hypothetical analyzed in this chapter reveals how a situation facing one female entrepreneur—Viola—would conclude differently depending on whether she pursued her rights under IIA or under the CEDAW's Optional Protocol. This provides a concrete illustration of how the different approaches to individual rights to private property in the two property regimes might play out in practice, giving rise to important insights that far transcend the specifics of the hypothetical.

At the same time, the authors also argue that the CEDAW Committee's vision is substantially more far-reaching, nuanced, and progressive than the gender approaches followed by international financial institutions like the World Bank or the International Monetary Fund, whose gender equality rhetoric often exceeds its actual on-the-ground development efforts.

In its sixth and penultimate chapter, the authors critically compare the ICCPR and ICESCR jurisprudence relevant to women's property rights with that of the CEDAW Committee. Unlike the prior comparison with IIA, this section identifies many more similarities than differences (p. 281).

The first half of the chapter discusses the ICCPR, addressing in turn its overall equality framework, women's equality, the definition of discrimination (enunciated in General Comment 18), women's property rights, marital status and social security, forced eviction, and its remedial approach, invoking Article 2(3) to recommend states provide redress for violations.

The authors also discuss the ICESCR's jurisprudence on forced evictions and other property rights violations, including the denial of social security, which align with the CEDAW's own concluding observations and jurisprudence. In fact, the progressive nature of the CEDAW's jurisprudence in line with the ICESCR's remedies can be illustrated in the ways in which the CEDAW Committee has responded to several individual complaints under its Optional Protocol by recommending both institutional and symbolic compensation—including in its recent views to the Philippines on reparations for “Comfort Women” in 2023.Footnote ²¹

Chapter Six concludes with a discussion of the normatively interlinked nature of the ICCPR, ICESCR, and CEDAW, particularly as “evolving interpretations generated by their respective treaty bodies are making other distinctions among the three treaties less relevant” (pp. 316–24). The authors also advocate for the rise of a new field of comparative international property rights law, truly a high watermark proposition, and note the valuable role of the CEDAW in this field.

The final chapter in Women's Property Rights Under CEDAW concludes with an acknowledgment of the way in which the CEDAW has advanced dialogue and offered creative interpretations of women's property rights, while the authors nevertheless recognize current shortfalls in the treaty body system. One of the authors’ important critiques is the lack of time and resources assigned to the CEDAW treaty body, a critique that would be well recognized across the treaty body framework. Nevertheless, the authors conclude that the CEDAW's property jurisprudence has important transformational promise, with impact at the national and subnational levels and a key reprioritization of women's equality over the family unit and the global political economy.

Amidst a global crisis in human rights, the rollback of women's rights and the shrinking of the civic space, Women's Property Rights Under CEDAW provides a dynamic understanding of why the CEDAW remains a critical nexus to women's life, liberty, and property.

Critical Approaches and Future Directions

Despite the groundbreaking nature of Women's Property Rights Under CEDAW, the book cannot possibly address every relevant issue under the CEDAW, and it is useful to build off of the book's analyses to identify a future research agenda.

In their examination of the theories that underpin property rights for women, the authors refrain from examining the Capability Theory associated with economics Nobel Laureate Amartya Sen and political and legal philosopher Martha Nussbaum.Footnote ²² While the CEDAW's property rights protections are inextricably interrelated with other international human rights treaties, they nonetheless remain unique in how they address underlying patriarchal structures, stereotypes, and forms of intersectional discrimination that compound discrimination and undermine the fundamental rights of women and girls. Amartya Sen's and Martha Nussbaum's capabilities theory, a rights and dignity-based approach to international development, can be aligned with the CEDAW Committee's theory of change and property jurisprudence. Specifically, Nussbaum suggests that we are mistaken in asking: “How much in the way of resources is [Vasanti] able to command?”Footnote ²³ Instead, we should ask: “What is Vasanti actually able to do and to be?”Footnote ²⁴ The CEDAW Committee uses a similar approach to stretch the transformative power of property rights to empower women and girls in practice. In her work, Nussbaum demonstrates how a capabilities-based approach would require “greater material equality” to exist across societies and argues that “we are unlikely to get all citizens above a minimum threshold of capability for truly human functioning without some redistributive polic[y].”Footnote ²⁵ The CEDAW Committee's work on this “redistributive policy,” too, is anchored in the larger aim of substantive equality, as articulated in, for example, General Recommendation 28.Footnote ²⁶

Evolving challenges of conflict, climate emergencies, and debt restructuring also call for a complex analysis of women's property rights. Although the book has a brief discussion of General Recommendation 37 on climate change and natural disasters, future scholars might further explore these issues.Footnote ²⁷ Further, more research is needed on the role of conflict and displacement on property rights, especially the property rights of women post-conflict. Several post-conflict peace agreements include land rights and the reallocation of land for refugees, including Internally Displaced Persons.Footnote ²⁸ For example, Sierra Leone's Lomé Peace Agreement,Footnote ²⁹ includes the use rights of gold and other minerals for the benefit of the rural community. In the context of conflict minerals, land rights, especially women's land rights, are key to the sustainability of peace. A discussion of the nexus between land and conflict and the cause-and-effect relationship between property and conflict would be uniquely relevant in a time of continuing conflict in many parts of the world. Moreover, in a time of debt restructuring and structural adjustment, multilaterals including the International Monetary Fund have a role to play in ensuring that women's property rights are secured and are not sacrificed at the altar of privatization or transnational development projects. An examination of this topic is much needed, especially given the absence of such research done by the Bretton Woods institutions.

The authors could also have done more to share the narrative arc of some important land rights movements—such as, for example, the Narmada Bachao Andolan movement, an Indian social movement led by native tribes and human rights advocates against a number of large dam projects across the Narmada River.Footnote ³⁰ Women, especially Indigenous women have led grassroots movements for land. In 2014 and 2019, Maori women in New Zealand led rallies to protest sacred land in the Maori community from being sold to private developers. As Pania Newton, one of the women leaders of the protest movement has argued, the fight is “not just a fight for the land itself, but a fight for justice, history, recognition and feminism.”Footnote ³¹ These movements were spurred by national development projects as well as Foreign Direct Investment (FDI) and thus would be pivotal to an in-depth understanding of the linkages of women's land rights and FDI as well as the legal measures to prevent private corporations, investors, transnational corporations, and multinationals from discriminating against women in their rights to access, use, inherit, control, and own land.

It is also important to examine the ways in which global normative structures that were adopted after the CEDAW addressed the complexities of property. For example, the Convention on the Rights of Persons with Disabilities (CRPD) examines the rights of persons with disabilities, including women, to the “universal access” to property.Footnote ³² Moreover, the Protocol to the African Charter on Human and People's Rights on the Rights of Women in Africa complements the CEDAW by addressing both the right to food security and to housing.Footnote ³³

Women's Property Rights Under CEDAW can also have significant impact on the domestication of the CEDAW's property rights in national courts. One illustrative case is a South African case on women's property rights and substantive equality under the CEDAW. In the landmark case of Bhe v. Khayelitsha (2005), the South African Constitutional Court relied on the CEDAW to declare unconstitutional a customary law that denied women the right to inherit property.Footnote ³⁴ In its decision, the Court also contended that excluding women from “succeeding to the family head” was no longer permissible, given the industrial and social transformation that many local and regional communities had witnessed.Footnote ³⁵ The Court relied on international agreements and obligations, including the CEDAW, as possessing an immutable authority in these contexts.Footnote ³⁶ Specifically, the Court ultimately ruled that the “CEDAW requires South Africa to ensure, amongst other things, the practical realization of the principle of equality between men and women and to take all appropriate measures to modify or abolish existing laws, regulations, customs and practices that constitutes discrimination against women.”Footnote ³⁷ Approximately nine years later, Gumede v. The President of the Republic of South Africa (2009) invalidated several antiquated South African statutes deemed discriminatory against women in customary marriages because they afforded husbands exclusive control over family property, thereby depriving women of any marital property in explicit violation of the South African Constitution and the CEDAW.Footnote ³⁸