Optional Protocol to the Women’s Convention
added: June 1998
also available in the  Human Rights Defender

Renée Leon#

Work is proceeding apace on the development of an Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women, to allow complaints of violations of the Convention.  The Protocol has considerable support and appears likely to be adopted in some form in the next few years, which will give women a much-needed boost in access to human rights compliance mechanisms.  Unfortunately, many of the more innovative provisions that could have made the Protocol a ‘best practice’ instrument for human rights complaints appear likely to be removed in the final text.

The story so far [i]

The Convention, unlike the International Covenant on Civil and Political Rights (ICCPR) and other key human rights instruments [ii],  does not include any procedure whereby complaints of violations may be made to the international body that monitors implementation of the Convention, the CEDAW Committee.  Proposals for a protocol to the Convention to allow such complaints began to circulate in the early 1990s and gained momentum in the lobbying undertaken by NGOs for women’s human rights in the context of the 1993 World Conference on Human Rights.  The Vienna Declaration arising from the World Conference called for further work to be done by UN bodies on the development of such a protocol.
 
The proposal was considered in 1994 and 1995 by the CEDAW Committee and the Commission on the Status of Women (CSW) and was the subject of an NGO-convened expert group meeting in 1994, which adopted a draft optional protocol (the Maastricht draft).  The principles of the Maastricht draft were subsequently adopted by the CEDAW Committee and circulated by CSW to States and NGOs in 1995 for their views towards the development of an optional protocol to the Convention.  That year also saw further international support for a protocol in the Beijing Declaration and Platform for Action from the World Conference on Women.

CSW convened an open-ended Working Group at its meeting in March 1996 to consider the principles that had been adopted by the CEDAW Committee.  The text developed in that working group was further considered by the Working Group in March 1997.  The Working Group met again in New York from 2-13 March 1998.  This article summarises the development of the Protocol as at the end of that Working Group meeting.

Key Issues

The purpose of the Protocol is to provide an avenue for complaints to be made to the CEDAW Committee alleging violations of the Convention.  While this process is akin to the procedures provided for under other human rights instruments,  the draft developed to date had provided for a number of improvements on the existing procedures, most notably in the areas of:
 

· standing,

· the effect of views of the Committee, and

· inquiry powers.
 

Standing:  the original Maastricht draft and the principles adopted by the CEDAW Committee, which had so far been reflected in the drafts before the Working Group, had included options for broad standing rights, which would have allowed complaints to be lodged by:
 

· an individual, group or organisation, claiming to be affected by a violation, or

· an individual, group or organisation with a sufficient interest, alleging a violation.
 

This formulation would have enabled women’s and other organisations to lodge complaints alleging systemic discrimination not limited to a particular victim and to lodge complaints of particular violations without putting the victim of a violation through the often lengthy and arduous process of international complaint procedures.  It recognised that victims of Convention violations will often not have the practical or emotional resources to pursue a complaint to the international level, but that organisations, such as women’s groups, trade unions and human rights NGOs, are often well-placed to identify such violations and present them to the Committee.

At the March meeting of the Working Group, Latin, Nordic and some African nations [iii]  supported the broader standing rights, but most others opposed them and they were deleted.  Standing under the draft as adopted by the Working Group is now restricted to the victims of violations, along similar lines to the existing complaints procedures.  However, standing has been retained for groups and organisations who have been victims of a violation or who represent such victims.  These latter issues are not finally resolved as yet but seem likely to remain in the text.

Views of the Committee:  The views of the various human rights monitoring committees on alleged violations are not expressly stated to be binding on States Parties [iv].   The committees forward their views, suggestions or recommendations to the State Party and the State Party may or may not adopt or comply with those views.  Follow-up procedures have been adopted, for example under the ICCPR, to encourage or press States Parties to rectify violations identified by the committee/s.

It is at least arguable that a breach identified by the Committee set up to monitor the implementation of the Convention and specifically tasked, by those States Parties who have agreed to the complaints procedures, to consider complaints of violations, is a breach of the substantive obligations in each Convention, which are binding on States Parties.

Nevertheless, States do not generally accept that the views of the treaty bodies are binding as to States’ obligations.  Australia has recently stated that it does not consider itself bound to accept the views of the Human Rights Committee on complaints under the ICCPR [v].

The Protocol text before the Working Party at the outset of this session included provisions that would have obliged States Parties to remedy violations identified as a result of the complaints procedure.  However, these provisions were deleted, after pressure in particular from the USA and UK, leaving only an obligation on States to respond with observations on Committee findings.

Inquiry:  A further positive measure in the draft Protocol was the proposal that the CEDAW committee have the power to examine allegations of systemic violations, without the need for a specific complaint or victim.  Inquiries of this nature are unusual under human rights treaties to date [vi],  but clearly valuable to address patterns of human rights violations that transcend the particular circumstances of any one victim.  Inclusion of such a provision is all the more vital in light of the removal of the broad standing provisions that had been proposed.

While the inquiry power survived the latest meeting of the Working Group, it seems likely that it will be subject to an opt-out provision.  Given that the Convention has the highest number of reservations of any human rights treaty, one cannot be sanguine that the inquiry provisions will be in force for significant numbers of parties and perhaps particularly not for those most likely to exhibit systemic patterns of violations.

Other issues

Other issues of significance at the Working Group meeting included:
 

· the number of parties needed to bring the Protocol into effect  – a couple argued for 20 as the minimum;  however reasonably strong support appears to be emerging for a threshold of 10 reservations;

· coverage of the Convention rights – it seems likely that all the rights under the Convention will be covered by the Protocol;

· whether reservations to the Protocol should be allowed – there appears to be broad support for a ‘no reservations’ clause;  however many delegations will not decide their position on the issue until the substantive issues have been settled; and

· the degree of assistance that should be provided to complainants – efforts were made by some delegations to oblige States to ensure that the complaints procedure was accessible and to facilitate or support access to complainants;  however these proposals were diluted to obligations to cooperate with the Committee and to protect complainants from reprisals.

Conclusion

There was considerable pressure at this meeting of the Working Group to conclude a text for consideration by CSW at its next session, with a view to its adoption by the year 2000.  Under that pressure, many compromises were made that moved the draft away from the strong and innovative text that had been developing.  Fortunately, the impetus to conclude a draft at all costs was resisted by those nations who sought an effective Protocol and the draft will be considered again next year.

However, it seems the battle has already been lost on the key issues of broad standing provisions and the binding effect of the Committee’s views.

While consistency between new and existing human rights treaties is desirable in many respects, it seems that the arguments for consistency have here been used to prevent the evolution of improvements in human rights complaints mechanisms, reducing the procedures to a lowest common denominator of least threat to States.  The drafting of the Protocol in this way, while not surprising, is an opportunity missed.

Nevertheless, continued support is needed for the development and eventual adoption of a Protocol allowing women to take complaints of violations of their rights under the convention to the international arena.  At present, complaints mechanisms are not available, tellingly, under the conventions that accord rights to women and children [vii].   Given the pervasive nature of violations of women’s human rights, access to such a mechanism is vital.  Australian NGOs should maintain pressure on the Australian Government to support a strong and effective Protocol.

Footnotes

# Renée Leon is currently a senior policy adviser in the Commonwealth Attorney-General’s Department. The views in this article are her own and do not necessarily reflect the views of the Department or the Government.  Ms Leon is grateful for the assistance of Ms Deborah Nance, of the Human Rights Branch of the Attorney-General’s Department, for information provided in the preparation of this article;  however the views expressed in the article are the author’s alone.

i. See Connors, J and Byrnes, A, "Enforcing the Human Rights of Women:  A Complaints Procedure for the Women’s Convention?" in [1996] Brooklyn Journal of International Law 679.

ii. Individual complaint mechanisms are provided under the ICCPR – First Optional Protocol; Convention on the Elimination of All Forms of Racial Discrimination (CERD) – Article 14;  and the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment (CAT) – Article 21.

iii. The travaux preparatoires of the Working Group are note yet available.  Indications in this article as to the positions taken by various country delegations reflect informal advice from participants.

iv. ICCPR, First Optional Protocol, Article 5(4);  CERD, Article 14(7);  CAT, Article 22(7)

v. "The Committee is not a court, and does not render binding decisions or judgments.  It provides views and opinions, and it is up to countries to decide whether they agree with those views and how they will respond to them," Attorney-General Daryl Williams, in response to the views of the Human Rights Committee on Communication No. 560/1993, A v Australia, which found Australia in breach of its obligations under the ICCPR (Press release, Williams/ Ruddock, 17 December 1997)

vi. There is a little-used CHR inquiry procedure under GA Resolution 1503 concerning widespread and systematic violations of the ICCPR and provision for inquiry under Article 20 of CAT.
 
vii. There is no individual complaints mechanism under the Convention on the Rights of the Child.

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