Expanding the Application of the CEDAW Optional Protocol to Further Advance the Working Conditions of Women Around the World

Abigail Hack December, 2024

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Under the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), States are obligated to consistently advocate for women’s employment rights.[1] However, as the issue of sweatshops hampers efforts to protect these rights for women, it is time to allow for an expansion of the reading of the Optional Protocol to allow victims more opportunities to hold parties responsible for their action/inaction in regards to this issue. Looking at a tag on a piece of clothing, you will likely read words such as “made in China,” “made in Bangladesh,” and “made in India.” These countries represent are often used for production because they are able to keep costs low while rapidly producing large volumes of clothing.[2] Driven by companies’ desire for fast and cheap production, poor working conditions have become the norm in these factories, often referred to as “sweatshops” due to their disregard for worker’s rights and safety.[3]

Countries with weaker enforcement of women’s employment rights tend to be the same countries where women are unable to work in other industries because of a lack of training or access to education or they are already restricted to a narrow range of job opportunities.[4] Additionally, these women are more susceptible to exploitation and can find it more difficult to stand up against unsafe practices because they often lack political capital to be able to unionize.[5] Furthermore, for many women, employment is their only chance of economic freedom and so they are unable to leave a job even after learning it is unsafe.[6] Accordingly, States must take a gendered approach when addressing sweatshops.

States that have been found by the United Nations to have a history of sweatshops have already committed to shutting them down and improving working practices when they can; however this issue is still very pervasive in many parts of the world.[7] Furthermore, sweatshops are not a wholly domestic issue because factories with poor labor practices export the vast majority of these goods to other countries. Receiving countries are then able to turn a blind eye and overlook these violations since they occurred outside their own jurisdiction.[8] Thus, enforcement against sweatshops should expand to target not just those who are allowing sweatshops to continue in their own countries, but also countries who knowingly import goods produced in these sweatshops.[9]

The Convention on the Elimination of Discrimination Against Women (CEDAW) is the treaty that created explicit obligations on States to promote the status of women, specifically requiring that States protect “the right to protection of health and to safety in working conditions.”[10] The presence of these factories within ratifying countries clearly place women in a disadvantaged or discriminatory position, which violates their obligations under CEDAW, and all States must take specific actions to eliminate these sweatshops.[11] Despite this clear restriction, the use of sweatshops and unsafe working practices for women is still a prominent issue.[12] Thus, it is time to look to expanding ways CEDAW can be used to continue to advance the working conditions of women.

In 2000, an Optional Protocol to CEDAW was passed that allowed individuals to file complaints against countries for violations of CEDAW.[13] Currently, the Optional Protocol is the main mechanism that victims can use to contest specific state actions as being contrary to their obligations under CEDAW.[14] The Committee determines the State’s violations and provides future recommendations to ensure the rights of women are protected and has emerged as one of the main ways that CEDAW can be enforced against parties to the Convention.[15] Though many have seen the Optional Protocol as being a major step forward in the overall enforcement of CEDAW, to date, only 10 cases have been decided, with half dismissed due to procedural issues.[16]

Thus far, the Committee has not dealt with the question of territorial jurisdiction in regard to the Optional Protocol. The only restriction in the Optional Protocol specifies that the individuals filing a claim must be “under the jurisdiction of a State Party.” CEDAW itself fails to define what might be considered as “under the jurisdiction” of a state, but general recommendations of the committee to CEDAW itself, have extended responsibility to actors of a state that commit violations abroad.[17] Looking at the applicability of CEDAW itself, currently, States are required to protect “citizens and non-citizens within their territory or effective control, even if not situated within the territory of the State party.”[18] This restriction may seem to limit CEDAW application to only incidents occurring within a State’s de jure or de facto territory. However, “the Convention also requires States Parties to regulate the activities of domestic non-State actors, within their effective control, who operate extraterritorially.”[19] Individuals who are harmed by actions taken by actors from another state should have the right to seek relief, even if the harm occurred outside of their own country.[20] By failing to investigate and penalize companies based in developed countries for importing goods produced in factories with unsafe labor practices, a state is complicit. If States do not regulate their companies’ behaviors, they are contributing by omission to the kinds of discrimination against women restricted in CEDAW.[21]

This idea of commitment to eliminating sweatshops outside of one’s own territory is not new, and many cities, even those in countries not belonging to CEDAW such as cities in the United States, have taken steps to not purchase sweatshop goods to be in compliance with CEDAW.[22] For example, in San Francisco, the city government has made a resolution to not purchase goods that were produced in sweatshops, noting this as a specific measure to eliminate discrimination against women as emphasized in CEDAW.[23] With this reading of CEDAW, it is clear that the applicability of the Convention itself is meant to include some responsibility on States for actions done extraterritorially by companies operating in their territory.

Given the expansive nature of the application of CEDAW that has been advanced, there is no reason why the Committee should restrict themselves further in application of the Optional Protocol so long as the State in question has signed on to this additional part of CEDAW. No cases have been decided by the Optional Protocol yet on the topic of extraterritorial jurisdiction of domestic actors, nor have any cases even dealt with the issue of sweatshops generally.[24] However, the small number of recommendations that the Committee has released under the Optional Protocol only indicates there are many issues still out there waiting to be decided. Currently, only 115 States have signed and ratified the Optional Protocol to CEDAW.[25] As such, this new strategy of enforcement can only be used against the reduced number of States that have allowed these complaints under the Optional Protocol. More States should make an effort to sign on to the Optional Protocol so victims have opportunity to bring these cases in as many complicit States as possible.

Victims should be able to go after as many actors responsible as possible to ensure a more complete justice and deterrence against the continued use of sweatshops. Additionally, given that this is a global issue unlikely to be resolved without international support, States contributing to the problem by allowing their companies to use sweatshop labor in other countries should also be held accountable. Allowing enforcement through the Optional Protocol would increase international pressure on various parties to bring an end to sweatshops once and for all.

  1. Convention on the Elimination of Discrimination against Women, General Recommendation No. 30 on Women in Conflict Prevention, Conflict and Post-conflict Situations, U.N. Doc. CEDAW/C/GC/30 (Oct. 18, 2013), [hereinafter CEDAW].↑

  2. Top 10 Clothing Manufacturing Countries in the World, Textile Value Chain (Sept. 7, 2023), https://textilevaluechain.in/news-insights/apparel-fashion-retail-news/top-10-clothing-manufacturing-countries-in-the-world/; Emma Ross, Fast Fashion Getting Faster: A Look at the Unethical Labor Practices Sustaining a Growing Industry, International Law & Policy Brief (Oct. 28, 2021), available at https://studentbriefs.law.gwu.edu/ilpb/2021/10/28/fast-fashion-getting-faster-a-look-at-the-unethical-labor-practices-sustaining-a-growing-industry/.↑

  3. Id; Andrea Scozzaro, Labour Standards in International Law: All States Should Have an Obligation to Punish Misconducts of Multinational Enterprises under International Customary Law, 19 CUNY L. REV. FOOTNOTE FORUM 59 (2016) (defining sweatshops as places with “”ten to twelve hour work days with forced overtime; work that is performed in unsafe and inhumane conditions (including exposure to poisonous chemicals); punishment for the slightest mistake; locked dormitory work conditions; pay averaging less than a living wage; excessively demanding long hours of work without compensation of overtime pay; systematic abuse and/or sexual harassment of workers by the employers); and/or the inability of workers to organize.” quoting Lena Ayoub, Nike Just Does Il – and Why the United States Shouldn’t: The United States’ International Obligation to Hold MNCs Accountable for Their Labor Rights Violations Abroad, 11 DEPAUL BUS. L.J. 395, 422-23 (1999)).↑

  4. Karen Hansen-Kuhn, Trade Is a Women’s Issue, Foreign Policy in Focus (Oct. 24, 2008), https://fpif.org/trade_is_a_womens_issue/.↑

  5. Id.↑

  6. Id.↑

  7. “UN-backed Programme Found to Improve Working Conditions in Global Garment Factories,” UN News (Sept. 26, 2016), https://news.un.org/en/story/2016/09/541002-un-backed-programme-found-improve-working-conditions-global-garment-factories.↑

  8. European Parliamentary Research Service, Workers’ Conditions in the Textile and Clothing Sector: Just an Asian Affair? (2014), available at https://www.europarl.europa.eu/EPRS/140841REV1-Workers-conditions-in-the-textile-and-clothing-sector-just-an-Asian-affair-FINAL.pdf (“more than 70% of EU imports of textile and clothing come from Asia. Many Asian workers have to work in sweatshop conditions, but the issue appears in global media only when major fatal accidents occur, like that at Rana Plaza in Bangladesh, in 2013.”).↑

  9. See e.g., Alison A. Gormley, The Underground Exposed: The United States Corporations’ Use of Sweatshops Abroad, and the Abuse of Women, 25 Suffolk Transnat’l L. Rev.. 109 (Winter 2001).↑

  10. CEDAW, supra, note 1 at Art. 11.↑

  11. See supra ¶ 2.↑

  12. Ross, supra, note 2.↑

  13. Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women, Dec. 10, 1999, 2131 U.N.T.S. 83, [hereinafter Optional Protocol].↑

  14. Id.↑

  15. Id.↑

  16. Committee on the Elimination of Discrimination against Women, Decisions and Views under the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women, available at https://www.un.org/womenwatch/daw/cedaw/protocol/dec-views.htm, [hereinafter Decisions and Views].↑

  17. Committee on the Elimination of Discrimination against Women, General Recommendation No. 30 on Women in Conflict Prevention, Conflict and Post-conflict Situations, U.N. Doc. CEDAW/C/GC/30 (Oct. 18, 2013).↑

  18. Id.↑

  19. Id.↑

  20. Id.↑

  21. Hansen-Kuhn, supra, note 4.↑

  22. See e.g. Local Implementation of the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) Ordinance, San Francisco, Cal., Ordinance No. 128-98 (Apr. 13, 1998), available at https://sfgov.org/dosw/node/229. (“The City shall take all appropriate measures to eliminate discrimination against women and girls in the City of San Francisco in employment and other economic opportunities, including, but not limited to, ensuring…. [t]he right to the protection of health and safety in working conditions, including supporting efforts not to purchase sweatshop goods.”) [hereinafter Local Implementation]; City of Irvine, Cal., Ordinance No. 18-05 (Mar. 13, 2018), available at https://legacy.cityofirvine.org/civica/filebank/blobdload.asp?BlobID=33140 (using identical language as San Francisco in regards to sweatshops). See also University of Michigan, Actions by the University of Michigan to Combat Sweatshop Conditions in the Manufacture of Licensed Apparel, Public Affairs & Internal Communications, https://publicaffairs.vpcomm.umich.edu/key-issues/actions-by-the-university-of-michigan-to-combat-sweatshop-conditions-in-the-manufacture-of-licensed-apparel/.↑

  23. Local Implementation, supra, note 22.↑

  24. Decisions and Views, supra, note 16.↑

  25. Optional Protocol, supra, note 13.↑