By Donna Sullivan, WHRnet
ISSUE
Background
Key features of the Optional Protocol
How the procedures work
Assessing the OP
Looking ahead...
Sources
Additional Resources
Background
The OP was adopted by the UN in response to campaigning by women's human rights activists who were well aware of the strengths and weaknesses of international remedies. The demand for procedures that would allow women to seek redress for violations of CEDAW when no remedy is available at the national level was launched at the 1993 World Conference on Human Rights. Activists pointed out that national laws frequently fail to guarantee women's human rights and courts just as frequently fail to uphold the constitutional or legislative protections that are available. International remedies offer women the possibilities of obtaining justice in individual cases and achieving a broader impact by encouraging governments to take the necessary action at the national level in order to avoid international criticism.
Activists also emphasized that a procedure allowing CEDAW to interpret the meaning of the articles in CEDAW in a specific factual context was needed in order to expand international law on women's human rights. Caselaw created under such a procedure can be used to influence the development of national law and human rights law under other treaties. Existing international procedures for promoting implementation of CEDAW, consisting of reporting by States Parties and the adoption of "general recommendations" by the Committee interpreting CEDAW's provisions, were inadequate for this purpose and for spelling out the legal accountability of states in specific factual circumstances.
In response to NGO campaigning, the 1993 World Conference on Human Rights in Vienna acknowledged the need for new procedures to strengthen implementation of women's human rights and called on Commission on the Status of Women (CSW) and the Committee to "quickly" examine the possibility of introducing the right of petition through the preparation of an Optional Protocol to CEDAW. The CSW failed to act at its next session, however, and a group of scholars and activists moved to fill the gap. In 1994, the International Human Rights Law Group and the Maastricht Centre for Human Rights convened an independent expert group which prepared a draft Optional Protocol. Although this text was not officially accepted as a basis for government negotiations in the CSW, it served as the reference point for many of the drafting proposals put forward in negotiations.
Women's human's advocates participated actively throughout the drafting process in the CSW and the final text responds to many of their key demands. Seen in the context of other UN initiatives to develop new human rights mechanisms, the entire process from drafting to the point at which the OP acquired legally binding status (entry into force) moved quickly. Drafting began in 1996 in a working group of all UN Member States meeting in parallel with the CSW and final adoption by the General Assembly followed three years later. The OP entered into force within the next year, in December 2000. As of January 2004, 59 of the 175 States Parties to CEDAW have ratified the OP.
In 2003 individual cases and situations of widespread violations have been filed under the OP and activists have begun to grapple with how to incorporate the OP into their advocacy strategies. The Committee has initiated an inquiry into the murders of nearly 300 women in Ciudad Juarez, Mexico since 1993 and it has received an individual communication concerning employment discrimination. Among the challenges activists face in using the OP are how to ensure that the interests of individual women whose rights have been violated are given priority and how to approach collaboration among local, national and international groups and individual lawyers.
Key features of the Optional Protocol
An understanding of the following key features of the OP provides a starting point for assessing its strengths and weaknesses:
How the procedures work
The communications procedure
The communication must relate to rights "set forth in the Convention." Many violations women suffer relate to rights that are not explicitly spelled out in CEDAW but are an aspect of one of its generally worded provisions, such as access to information about reproductive health, or are preconditions for enjoying a right that is explicitly set forth, such as the underlying right to participatory processes for development within which women have the right to equal participation. In filing cases of this type, the chances of success will be increased by including an clear explanation of how the right is within the scope of CEDAW, referring if possible to the Committee's comments during review of States Parties reports, the provisions of the Beijing Platform for Action, the ICPD Programme of Action or similar high level policy documents, and other human rights instruments.
An individual or a group intending to file "on behalf of" others must present evidence of the victim's consent to the communication, or give reasons that "justify" submitting the communication without her consent. The individual family member, lawyer or organization who obtains consent becomes the legal representative of the victim in the communication process. Examples of reasons that the Committee may find "justify" the absence of consent include that: the victim will face retaliation if she is known to have consented; she is unable to consent due to serious illness or lack of legal capacity; or the number of victims is so large that it is impractical to obtain consent from all of them.
The requirement that all available national remedies have been pursued has recognized exceptions. For example, the Committee may waive the exhaustion requirement if: no effective remedies exist; the procedures take an unreasonably long time; the victim has been prevented from using the procedure by threats or actual harm; or practical constraints, such as high financial costs, make the remedy inaccessible.
If a communication meets the threshold requirements, it will go to the Committee's Working Group on communications. The Working Group will then forward a copy to the State Party, with the name of the victim(s). The Committee can request the State Party to take "interim measures" to protect the victim from "irreparable damage," such as physical harm or property destruction which is irreversible, while the communication is pending. The OP also creates a general duty of protection for individuals who have contact with the Committee in connection with either the communications procedure or the inquiry procedure: States Parties must take all appropriate steps to ensure that they are not subjected to ill-treatment or intimidation. (Article 11)
The State Party has six months to respond with its arguments about whether the threshold requirements have been satisfied and the merits of the claim. The Working Group will review all the information provided by the author of the communication and the State Party in closed meetings. The Committee's rules of procedure indicate that it may request additional information from the author and/or the State Party and seek information from UN sources or "other bodies." The latter option opens the door for the Committee to seek information from regional and national human rights bodies or even non-governmental sources.
Based on their review of all the information provided by both sides, the Committee will adopt "views and recommendations" deciding whether a violation has occurred and if so, identifying the steps that must be taken to provide a remedy. These "views and recommendations" will be sent to the author of the communication and the State Party, published in the Committee's annual report and posted on the website. Decisions under comparable procedures for the ICCPR, the Convention on the Elimination of Racial Discrimination and the Convention Against Torture are posted on the website of the High Commissioner for Human Rights regularly and the Committee is expected to follow this practice.
Within six months, the State Party must give a written response to the Committee's views, describing any remedial steps it has taken. The Committee can request further information from the State Party in subsequent periodic reports. It can also decide to take a more assertive approach by appointing a working group or rapporteur for follow-up, with authority to initiate contacts with governments and take "such action as may be appropriate" to promote government cooperation.
The inquiry procedure
The Committee will try to secure the cooperation of the State Party but can conduct an inquiry without the consent of the State Party. In order for the Committee to carry out an on-site visit (as provided in Article 8), however, the State must consent. If the State Party does agree, the Committee will designate one or more of its members to carry out a visit, during which the Committee members may interview victims, witnesses, experts, and government officials to determine the facts. They may even hold a hearing to receive testimony, if the State Party gives its consent.
The results of this information-gathering process will be reviewed by the Committee, which will then adopt findings about whether a violation has occurred and comments identifying actions to be taken by the State Party if a violation has occurred. A summary of the Committee's activities and its findings will be published in its annual report and posted on the Website. Follow-up procedures are similar to those for the communications procedure: the State Party must respond with "observations" within six months, the Committee can request further information from the State Party after this six month period, and/or ask for information on any remedial measures that have been taken to be included in subsequent periodic reports.
Confidentiality
The OP provides that the inquiry procedure will be "conducted confidentially." This requirement extends to the Committee's working documents and discussions. In the course of an on-site visit it would cover the content of the information received in its contacts with victims, witnesses, government officials and other sources. The fact that an inquiry or on-site visit is underway can obviously become public knowledge, since NGOs or the State party itself are free to make this information public, but Committee members will not discuss the inquiry with media, other governments or "outside" sources. The State Party will be allowed to review the summary of the Committee's activities under an inquiry before it is published in the Committee's annual report.
Reservations
Assessing the OP
Many of the strengths and weaknesses of the OP procedures are readily apparent. On the one hand, the Committee has broad latitude for developing progressive interpretations of CEDAW and outlining specific remedies for violations. On the other hand, its recommendations are non-binding and enforcement depends upon the good faith of the State Party and pressure by civil society, the Committee and the broader international community. The communications procedure offers the possibility of redress for victims who otherwise have none. The inquiry procedure can take into account a wider spectrum of information, making it useful for addressing the structural causes of violations and large-scale abuses, but the opt-out clause may limit its application.
The procedural barriers are relatively easy to surmount but both procedures move slowly. In addition to the timeline set up in the OP (six months before the State Party must respond to a communication and six months before it must respond to the Committee's decisions under either procedure), the Committee is likely to develop a backlog due to resource constraints and limited meeting time. Although the OP can be used effectively as one of a series of strategies for dealing with urgent situations, by adding to international law and/or political consensus condemning the violations in a cumulative process, it is not well-suited to dealing with urgent or massive abuses. The inquiry procedure, which can be triggered at any time the Committee so decides on the basis of information that has come to its attention, allows a more timely response than the communications procedure, which normally entails using domestic remedies before filing under the OP.
The primary strength of the OP lies in CEDAW itself. The advantage of using the OP is that CEDAW provides a conceptual and legal framework capable of encompassing a wide range of the rights indispensable to women's lives and it creates relatively specific obligations for States. Like other international human rights treaties, it calls for substantive equality, not merely legal protections against discrimination, and, unlike those other treaties, it is focused on women. Other key aspects of CEDAW that make it an effective framework are the inclusion of obligations related to economic, social and cultural rights and obligations to elimination discrimination in both private and public life.
Looking ahead...
A number of factors are likely to influence whether the OP procedures yield concrete results for individual victims, and more generally, whether the results contribute to broader-based change in women's lives. The political context at the national and local level is of central importance in deciding whether the OP is an appropriate strategic choice. Optimal benefits are most likely to be achieved when the communication or inquiry is closely related to ongoing advocacy and integrated into a strategy that includes broad-based campaigning and the use of other human rights mechanisms. Although the request for an inquiry into the Ciudad Juarez murders did not come out of a consultative NGO process among the local and national activists already campaigning on the issue, local activists have now become involved in the inquiry. The Committee's Ciudad Juarez inquiry is an example of how the OP can be used together with other international and regional procedures or mechanisms: the UN Special Rapporteur on the independence of judges and lawyers has condemned the lack of an effective judicial response to the killings, former High Commissioner for Human Rights Mary Robinson criticized the persistence of impunity, the Committee itself has already expressed strong concerns during the review of Mexico's periodic report, the Inter-American Commission has published a special report on the killings, and the Special Rapporteur on Violence against Women is reportedly planning to visit Mexico.
Activists interested in using the OP have an ethical obligation to ensure that the best interests of the individual or group whose rights have been violated take priority in deciding whether, and how, to use the OP. NGOs and individual lawyers who offer to represent individual women should observe the same standards that apply in filing cases before national courts by: providing the information necessary for informed consent to file the case; assessing the risk of retaliation and economic or social pressures on the victim, and determining whether systems for protecting them against retaliation exist or can be put in place; and maintaining the confidentiality of all information unless the victim has given informed consent to its disclosure. NGOs and lawyers should consult closely with victims about strategies. In particular, campaigning in connection with a case should only be undertaken if the victim agrees and her needs for support during the process are addressed.
Some organizations, such as Equality Now, a U.S. women's group, are currently looking for "test cases" to bring under the OP. An NGO which believes that it has identified an issue suitable for a test case should contact local and national women's groups, human rights groups, and individual lawyers who work on such cases, and consult with those groups or individuals to determine whether an OP test case is an appropriate strategic choice, taking into account all political, legal and social factors in the local or national context. The availability of the OP procedures highlights once again the need for fair and transparent working relationships among activists, with a particular responsibility on the part of NGOs in the Global North, which have greater access to resources, information and decision-making processes, to establish such relationships.
There are legal factors to be considered in deciding to use the OP, such as the need to exhaust domestic remedies or show that this requirement should be waived and whether using the OP would foreclose other legal remedies (as is the case for some international and regional procedures.) Activists will need to weigh the advantages of the OP against other human rights procedures which may offer legally binding results or a strong basis in existing caselaw for predicting success. How a thoroughly a case is prepared, including the detail and consistency of the evidence presented and the specificity of the legal arguments, can obviously affect the outcome. Activists who document violations and/or bring cases in national courts have pointed out that the most effective approach would be to file cases which have already been well-documented in the course of ongoing work.
However, one strength of the OP is that individual women can submit claims that have not been previously taken up by NGOs or lawyers. The Committee has made clear in its rules of procedure that the Division for the Advancement of Women (DAW), which is responsible for receiving communications, can request additional information from the author, including about the facts and steps taken to exhaust domestic remedies. A proactive approach by the DAW and the Committee's willingness to ask for additional information (as permitted under the rules of procedure) will be vitally important in helping women who do not have legal assistance to present a strong case.
The impact of OP at the national level will also depend on how creatively and assertively the Committee approaches its responsibilities. This includes the Committee's willingness to seek additional information in order to have a strong factual record for its deliberations, to formulate views and recommendations that are both detailed and aimed at expanding women's rights as widely as possible (including through action to prevent similar violations in the future) and to follow-up its decisions vigorously. The effects of its decisions are likely to be enhanced if the Committee's decisions incorporate full explanations of its reasoning with regard to both the facts and the law, since national courts and other officials will be more likely to take a thoroughly reasoned decision into account. This is true not only for the State Party directly concerned, but other States Parties to CEDAW. The OP will allow the Committee to shift toward greater emphasis on the legal accountability of States Parties, a shift not likely to be popular with governments but one which will enhance its benefits for women.
The practical uses of the OP should expand over time, as the Committee builds its caselaw and activists publicize that caselaw and use it to support initiatives in national courts and legislatures. By strengthening the principle of accountability for violations, the OP has already strengthened the effectiveness of CEDAW as a tool for securing women's human rights. In the immediate term, 116 States Parties to CEDAW still have not ratified the OP, and women in those countries are using demands for ratification to raise awareness of CEDAW. In the long term, the OP may help to fill the gap between the promise of justice and actual justice for women.
Sources
The text of the Optional Protocol is available at:
The list of countries which have signed and/or ratified the OP is available at:
The countries which have opted out of the inquiry procedure are listed at:
An overview of the history of the OP, with links to relevant UN documents, is available at:
A list of the current members of CEDAW is available at:
Additional Resources
The International Women's Rights Action Watch- Asia Pacific has developed materials for campaigning on the OP, titled "Our Rights are Not Optional." IWRAW-AP has extensive experience in training and capacity building on CEDAW. It facilitates the preparation and presentation of shadow reports under CEDAW and has set up networks for monitoring implementation of CEDAW in a number of countries. It is currently in the process of developing an OP section on its website, which explains how the OP works, discusses ratification strategies and outlines guidelines for using the OP. Because the OP is an implementation mechanism for the substantive rights established in CEDAW, the information on IWRAW-AP's website related to CEDAW is an invaluable complement to the information on the OP. See http://www.iwraw-ap.org.
The Division for the Advancement of Women has prepared a model communication form which is available at: http://www.un.org/womenwatch/daw/cedaw/protocol/modelform-E.PDF. Although this form identifies the basic information to be provided, it does not explain key legal terms. This overview clarifies the most important of these points and the information available from IWRAW-AP provides detailed explanations and guidance.
A similar form is available at http://www.bayefsky.com/complain/38_form_cedaw.php; this also does not clarify key legal points.
For a general description of OP see: http://www.bayefsky.com/complain/37_cedaw.php
For a general checklist for submitting communications, see:
For information on the Ciudad Juarez killings, see:
- Por Nuestras Hijas (For Our Daughters) Campaign against the murders of women in Ciudad Juarez (in Spanish): http://www.geocities.com/pornuestrashijas
- Amnesty International's report "Intolerable Killings: Ten years of abductions and murders of women in Ciudad Juarez and Chihuahua": http://web.amnesty.org/library/index/engamr410262003
- The Inter-American Commission on Human Rights' Special Report on violence against women in Ciudad Juarez: http://www.cidh.oas.org/annualrep/2002eng/chap.vi.juarez.htm
The communications procedure has several threshold requirements that must be met before the Committee will consider the case. The most important of these concern who may submit the case and whether existing national remedies have been fully utilized. A communication can be submitted directly by the victim or group of victims whose rights under CEDAW have been violated or by other individuals or groups filing "on behalf of" the victims. "Victim" is interpreted in international law to mean someone whose rights under CEDAW have been adversely affected and a "violation" refers not only to a direct act by the state, but also its failure to act where required by CEDAW to do so. Because CEDAW requires states to prevent and remedy violations by private actors, abuses by non-governmental individuals or groups can be addressed under the OP.
The threshold requirements for the inquiry procedure are that the violation be grave or systematic and that the information the Committee considers in deciding to begin an inquiry be "reliable." "Grave" refers to the severity of the violation and is likely to be interpreted by the Committee to mean violations of the right to life and integrity of person. "Systematic" refers to violations that are widespread or are committed as part of a policy or scheme. The Committee need not wait to receive a request for an inquiry but can decide to initiate one whenever reliable information pointing to the existence of grave or systematic violations comes to its attention. "Reliability" refers to common-sense standards of credibility. Sources of reliable information might include press reports, NGO reports, and information from other UN bodies. The Committee can continue to receive information over the course of the inquiry and its rules of procedure stipulate that it may seek information from the State, governmental organizations, NGOs and individuals. Experience with the inquiry it has begun into the Ciudad Juarez killings suggests that the Committee should be encouraged to seek information from NGOs more actively.
Because NGOs may want to incorporate OP cases and inquiries into media campaigns, the rules regarding confidentiality may affect their advocacy strategies. The Committee's discussions of both communications and inquiries will be held in closed sessions and its working documents are confidential. The rules of procedure stipulate that the Committee will not make public any information or submissions relating to a communication prior to issuing its decision. This means information about the progress of the case will be given only to the parties (the author of the communication and the State Party) and the Committee will not publicly refer to pending cases. The Committee can request the parties to keep confidential all or part of their submissions or information related to the proceedings. No sanction is provided for refusing to honor such a request, however. Although the name of the victim will be disclosed to the State Party, there are protections for the public anonymity of the victim: if the Committee decides, the names or identifying details of the victim cannot be made public by the State Party, the author of the communication or the Committee itself. The author or victim can request that names or identifying details not be published in the final decision.
The reservations many States Parties have entered to CEDAW may restrict the availability of the OP procedures. When it considers a claim related to provisions of CEDAW that are the subject of a reservation, the Committee will have to examine the reservation itself, to determine whether the State Party has created a valid exemption from its obligations. A number of existing reservations are considered by experts to be incompatible with the object and purpose of CEDAW and therefore invalid. In its review of periodic reports the Committee has on several occasions indicated that it regards the State Party's reservations as incompatible with the object and purpose of CEDAW. In reviewing communications or considering an inquiry the Committee therefore might decide that it will not recognize a reservation as applying to the rights implicated by the communication or inquiry, and proceed with its examination.
http://www.un.org/womenwatch/daw/cedaw/protocol/op.pdf.
http://www.un.org/womenwatch/daw/cedaw/sigop.htm
http://www.unhchr.ch/html/menu3/b/treaty11_asp.htm
http://www.un.org/womenwatch/daw/cedaw/protocol/history.htm
http://www.un.org/womenwatch/daw/cedaw/members.htm
http://www.bayefsky.com/complain/40_checklist_cedaw.php
