4 - Human Rights Treaty Bodies as Standard-Setting Mechanisms

Summary

This chapter introduces the evolution of a new field in family law – international human rights family law (IHRFL) – and traces the major role of one of the human rights treaty-monitoring bodies, the Committee on the Elimination of All Forms of Discrimination against Women (CEDAW Committee), in forming this field. In this new field, issues that have traditionally been thought of as solely part of the domestic legal order (i.e., under the jurisdiction and authority of each state) are now perceived to be part of international human rights law: protection from domestic violence; aspects of child custody; inheritance and property distribution upon dissolution of family relations. This means that family law should be understood as also governed by international human rights standards, whether they are hard law provisions in international treaties, or soft law jurisprudence of treaty bodies. States that have ratified the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) must scrutinise their family laws and bring them in line with the standards set by the CEDAW Committee in such matters as property relations, inheritance, protection from domestic violence and child custody. Through its standard setting function (i.e., the adoption of Concluding Observations, Views in Individual Communications, and General Recommendations), the CEDAW Committee is gradually and consistently contributing to the substantive development of IHRFL.