DRAFT OPTIONAL PROTOCOL
Summary
* CEDAW Standards * Enforcement of CEDAW * CEDAW in Australia * Background to the Optional Protocol *Rationale for an Optional Protocol *Case Studies of a Complaints Procedure * Primary Objectives for Drafting of an Optional Protocol to CEDAW * Existing International Communications Procedures *Justicability * Standing (article 2) * Admissibility (article 4) * Interim Measures (article 5) *Confidentiality (article 6) * Sources of Information for the Committee (article 7) * Inquiry procedure (article 10) * Remedies (articles 8,11) * Publicity of Committee's Findings (article 14) * Reservations (article 20) * Resources * ConclusionsSummary
The Convention Against All Forms of Discrimination Against Women ("CEDAW") is the international human rights treaty for women. Its only functioning enforcement mechanism is a weak reporting requirement.
An Optional Protocol to CEDAW in currently under preparation which provides for:
• a right of complaint to the United Nations CEDAW Committee for individual women whose rights under CEDAW have been violated;
• a right of the CEDAW Committee to conduct investigations at its own initiative in cases of serious or systematic violations of women’s rights under CEDAW.
The drafting of the Optional Protocol is progressed at annual meetings of the Commission on the Status of Women in New York in March.
CEDAW establishes international minimum standards for the protection of women’s human rights.
CEDAW is based on the principle of equality and non discrimination. Rather than stating that women have certain rights, CEDAW refers to the obligations of States, which include:
• to grant and accord women certain rights on the basis of equality with men eg nationality and equality before the law;
• to undertake specific types of action eg embody the principle of equality in legislation;
• to take all appropriate measures to eliminate discrimination or ensure rights in particular fields.
The substantive provisions of CEDAW are as follows:
• discrimination is defined in article 1;
• a general statement of non discrimination is contained in article 2;
• in article 3, States agree to take all appropriate measures to ensure the full development and advancement of women in all fields, especially the political, social, economic and cultural fields;
• article 4 relates to temporary special measures to advance women’s equality;
• article 5 requires States to take all appropriate measures to modify social and cultural patters to eliminate prejudice and customary practices which are based on the notion of inferiority of one sex or on sex-stereotyping;
• articles 6 - 16 cover trafficking and ‘exploitation of prostitution’; political and public life; representation of governments by women at the international level; nationality; education; employment; health; social security, credit and recreational activity; particular problems of rural women; equality before the law; and all matters relating to marriage.
In most cases each article requires the State to take appropriate measures to eliminate discrimination in the particular field and then elaborates certain steps to that end.
CEDAW contains a notoriously weak enforcement mechanism in article 18 which requires States which are parties to submit a report every four years to the CEDAW Committee outlining what legislative, judicial, administrative or other measures they have adopted to give effect to the provisions of CEDAW. The CEDAW Committee is an independent expert group responsible for monitoring compliance with CEDAW which meets for a number of weeks each year to consider reports.
States are usually late with their reports. The reports are rarely self-critical and commonly refer only to positive initiatives of government.
In the late 1980s the CEDAW Committee began the practice of accepting concurrent NGO reports in an attempt to obtain a more balanced picture of a State’s progress towards implementation of CEDAW. In July 1997, Australian women’s organisations submitted an alternative report to the CEDAW Committee in New York which was taken into account by the Committee in preparing its report on Australia’s implementation of CEDAW.
Ratification of CEDAW provided the constitutional power and legal obligation for the Federal Parliament to enact the Sex Discrimination Act in 1984. Some but not all of CEDAW’s provisions have been enacted into Australian law.
Although CEDAW is not a comprehensive charter of women’s rights, it sets out agreed basic principles for women’s equality. For example, all members of the CAPOW! Network agree to subscribe to the CEDAW principles as a set of shared values.
Background to the Optional Protocol
At recent United Nations conferences, States agreed on the need to strengthen the protection of women’s human rights, in particular through new enforcement mechanisms.
A draft Optional Protocol was proposed and work commenced in 1994. States, NGOs and the CEDAW Committee have contributed to the first draft discussed at CSW in 1997.
Rationale for an Optional Protocol
In addition to the broad aim of enhancing women’s human rights, the introduction of an Optional Protocol is supported for the following reasons:
• to place CEDAW on an equal footing with other major human rights treaties, most of which have complaints procedures
• to provide a remedy in individual cases of human rights violations
• to develop the jurisprudence of the CEDAW Committee to influence national and international law • to inspire changes in discriminatory laws and practices
• to publicise CEDAW standards
• to encourage a culture of compliance with women’s human rights
Case Studies of a Complaints Procedure
A individual complaints mechanism is provided by the Optional Protocol to the International Covenant on Civil and Political Rights and a right of petition became available to Australians in 1992. Two cases have been dealt with by the Human Rights Committee in Geneva: in the Toonen case, the Human Rights Committee found that the Tasmanian laws criminalising certain sexual conduct between adult men were unlawful and in a case this year, Australian migration laws which provided for detention of asylum seekers were declared contrary to the Convention.
Primary Objectives for Drafting of an Optional Protocol to CEDAW
The primary concerns of women’s human rights organisations are to ensure that:
• all the rights contained in CEDAW are subject to review;
• individuals, groups of women and women’s organisations all have standing to bring complaints to CEDAW;
• any Optional Protocol contains both an inquiry and a complaints procedure; and
• the CEDAW Committee is empowered to make broad ranging recommendations for remedying violations of CEDAW.
The draft Optional Protocol currently includes these provisions. They are discussed in greater detail below. In most cases, alternative text has been proposed deleting these provisions.
Existing International Communications Procedures
Because of the proliferation of international human rights treaties, many of which have complaints mechanisms, some States argue that an Optional Protocol to CEDAW will be unnecessary and duplicate existing remedies. However, none of the other procedures (discussed below) focus specifically on women’s human rights and allow for consideration by an independent gender expert committee in individual cases or in instances of widespread violations with a view to providing redress.
Moreover, the draft Optional Protocol provides that a complaint will be inadmissible where it raises issues substantially the same as those dealt with under another complaints procedure.
In any event, some of the rights in CEDAW go beyond any other treaty.
Other international procedures include:
• 1503 procedure of the Commission on Human Rights: communications may be submitted evidencing a consistent pattern of gross and reliably attested violations of human rights. However, this procedure is confidential and lacks transparency; complaints are considered by government representatives rather than experts; it cannot respond to urgent cases; the Universal Declaration on Human Rights around which it is framed does not contain detailed provisions on gender discrimination.
• CSW inquiry: communications may be submitted to the Commission on the Status of Women revealing a consistent pattern of gross and reliably attested injustice and discriminatory practices against women which occur solely on the grounds of the victims being women. Similar limitations apply as for the 1503 procedure. Additionally, it does not provide for redress in individual cases.
• International Covenant on Civil and Political Rights, Optional Protocol: individual victims of violations of rights under the ICCPR may bring complaints to the Human Rights Committee which makes recommendations to States to remedy the violations. Although a few cases of gender discrimination have been brought under the Optional Protocol to the ICCPR, CEDAW contains rights which are not contained in the ICCPR and addresses gender discrimination in far greater detail. Moreover, the CEDAW Committee has greater expertise in dealing with gender discrimination than does the Human Rights Committee.
• Convention on the Elimination of All Forms of Racial Discrimination: individuals or groups who are victims of violations of rights under the CERD may bring complaints to the Committee for CERD which makes recommendations to States to remedy the violations. This treaty does not contain gender specific rights.
• Convention Against Torture: individual victims of violations may bring complaints to the CAT Committee; the CAT Committee is also empowered to conduct an inquiry where it receives reliable information that contains well-founded indications that torture is being systematically practised in a State. This treaty does not contain gender specific rights.
• The Migrant Workers’ Convention (which has not come into force) contains a complaints procedure;
• a complaints procedure for the International Covenant on Economic, Social and Cultural Rights is under consideration; and
• a communications procedure of limited scope is considered for the Convention on the Rights of the Child.
Because the obligations in CEDAW are broadly articulated and require states to take ‘all appropriate measures’, there is an issue about whether the obligations can be measured or determined by the Committee. It is argued by States that they have a considerable margin of discretion in implementation of CEDAW and that they should not have to explain their policy priorities to the Committee. This argument is most often raised where States are under an obligation to ensure economic, social and cultural rights, such as the rights to work, food, housing and education.
However, there is considerable international precedent that implementation of these rights can be measured; even if the obligations are ones of progressive implementation, that is, full compliance can be phased in over time, it is possible to determine whether States have taken sufficient steps towards fulfilment of those obligations.
Most international communications procedures only allow victims of violations of rights to make a complaint.
The draft Optional Protocol contemplates communications to the CEDAW Committee
• by an individual, group of individuals or organisation suffering detriment from a violation of rights;
• by an individual, group of individuals or organisation claiming to be directly affected by the failure of a state to comply with its obligations; or
• by a person or group having a sufficient interest in the matter.
The extended standing is required to respond to
• women’s low literacy levels, particularly legal literacy;
• women’s resource constraints;
• potential dangers to women’s personal safety.
NGO-initiated complaints are useful where non-compliance with CEDAW impacts adversely on a whole class of women.
Before the CEDAW Committee can consider a complaint, the draft provides that certain procedural requirements must be met. A standard requirement for international complaints mechanisms which is included in the draft is that a complainant must have exhausted any domestic remedies before lodging her complaint. The draft creates an exception where this is unreasonable. For example, where a remedy has been unreasonably prolonged, or is effectively unavailable or is denied to the complainant, she will be able to lodge a complaint with the Committee.
The draft allows the Committee to recommend interim measures be taken by the State before the Committee reaches a final determination in certain circumstances. This is important in cases where women fear reprisal or their circumstances require urgent action.
Currently it is proposed that complaints will be confidential until the report of the Committee is published. While it is important that the identity of the complainant is kept confidential from the State and the public in cases where disclosure would put her personal safety at risk, the ability of a complainant to waive confidentiality and publicise the complaint is often very important in obtaining a satisfactory outcome.
Sources of Information for the Committee (article 7)
Currently the draft allows the Committee to take into account in its deliberations information from sources other than the complainant or state. It is important that the work of NGOs, intergovernmental organisations and UN agencies can be referred to in the Committee’s consideration of a complaint.
Inquiry procedure (article 10)
The draft currently provides that where the Committee receives reliable information indicating a serious or systematic violation by a state of rights or failure to give effect to its obligations, the Committee has a right to conduct an inquiry and report urgently, with the cooperation of the State under review. Only a few human rights treaties have such a procedure, including the Convention against Torture and the new Migrant Workers’ Convention (which has not yet entered into force). The inquiry procedure is considered necessary to enable the Committee to address particularly egregious cases or large scale violations on a more timely basis than allowed by the complaints procedure. Such cases might include trafficking, widespread sexual assault in armed conflict or campaigns of gender-based persecution of women political leaders.
Unlike other complaints mechanisms which require only that States take into account the views of the relevant treaty body, the draft Optional Protocol provides that States ‘shall take all steps necessary to remedy any violation’, ‘shall ensure that appropriate remedy, including if need by adequate reparation is provided’, and shall within three or six months ‘submit to the Committee written explanations or statement clarifying the matter and the remedy that has been implemented’. The Committee is empowered to request the State to appear before it to discuss the steps it has taken and to keep the matter under review until it is satisfied that it has been appropriately remedied.
Publicity of Committee’s Findings (article 14)
The draft currently provides that the States must publicise and make widely known the Committee’s views and recommendations in relation to communications and inquiries. Similar considerations apply as for the confidentiality of communications: the identity of the individual complainant’s may need to be protected but publicising the Committee’s findings may be important in obtaining a remedy.
According to principles of international law, a complaint cannot be brought in relation to a violation of a provision to which a State has lodged a reservation. A reservation is a statement by a State that it is not bound by a specific provision.
However, the draft Optional Protocol does not make clear how the Committee is to deal with a complaint about a violation where the provision violated is subject to a reservation which is arguably unlawful, that is, it is contrary to the purpose and object of CEDAW. The Committee has already stated in its general recommendations that it considers reservations to article 2, the broad non discrimination provision, to be contrary to the purpose and object of CEDAW.
The draft provides that reservations shall not be permitted to the Optional Protocol, but an alternative provision allows reservations provided they are not contrary to the objects and purposes of the Optional Protocol and CEDAW. This would allow States to opt out of a communication or inquiry procedure for specified provisions in CEDAW.
Currently, the Committee is badly underresourced and cannot meet its current workload. New and additional resources would be required to receive and consider complaints, to conduct inquiries and to properly support the Committee were an Optional Protocol introduced.
Although some NGOs see the work of CSW as the beginning of a long (but inevitable) process, others do not consider an Optional Protocol (in whatever form) as a foregone conclusion. NGO pressure and input must be maintained, not only to ensure that the content of an Optional Protocol is meaningful but that it happens at all.
Given the Australian Government’s position on multilateral treaties and the enormous division created by the Toonen Communication (referred to above), lobbying the government to take an active role in promoting the Optional Protocol and progressing it at the international level will need to proceed thoughtfully.
Education and information sharing about the Optional Protocol should be part of a long-term strategy, so that a broad range of women have sufficient knowledge about the Optional Protocol to engage in well-informed lobbying. In particular, issues around internationalisation (‘the UN in your backyard’ scare tactic), the proliferation of international human rights treaties, and whether there is a need for a remedy for Australian women are likely to be controversial. Susan Brennan YWCA of Australia National Office Contacts: PO Box 1033 Dickson ACT 2602 Ph: 02 62305150 Fax: 02 62305156 Email: natoffice@ywca.org.au
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National Women's Justice Coalition
email: nwjc@nwjc.org.au