OP CEDAW Toolkit

Optional Protocol to CEDAW and how it can be used to advance women’s human rights

 

1. CEDAW Convention – basic information:

1.1 Discrimination against women – definition

1.2 Measures to eliminate discrimination

1.3 Areas covered by CEDAW

1.4 General recommendations

1.5 CEDAW Committee

1.6 Reporting process

1.7 Role of NGOs: Providing Alternative Information to the Committee 

1.8 State Parties

 

2. Optional Protocol to CEDAW:

2.1 Basic information

2.2 The obligations of the States Parties under the Optional Protocol

2.3 The impact of reservations to CEDAW under the OP CEDAW

2.4 The Communications procedure:

2.4.1 What is the communications procedure?

2.4.2 Who can submit the communication?

2.4.3 When can the communications procedure be used?

2.4.4 How to use the communications procedure and prepare the communication

2.4.5 When will the CEDAW Committee refuse to accept the communication?

2.4.6 What are the inadmissibility criteria under art. 4.2 of the OP CEDAW?

»The communication is incompatible with the provisions of the CEDAW Convention

»The communication is “manifestly ill-funded”

»The communication is “not sufficiently substantiated”

»It is an abuse of the right to submit the communication

»The facts that are subject to the communication  occurred before the OP CEDAW came into force for the State concerned

 

2.4.7 What are ‘the interim measures’?

2.4.8 What happens after submitting the communication?

»What happens if the communication is inadmissible?

»What happens if the communication is admissible?

 

2.4.9 Confidentiality and Safety of women that use the Communications Procedure

 

The cases submitted to CEDAW Committee under the communications procedure

 

2.5 The inquiry procedure:

2.5.1What is the inquiry procedure?

2.5.2 How to use the inquiry procedure

2.5.3 What happens after the Committee receives reliable information on ‘grave or systematic’ violation(s) of rights set forth in CEDAW Convention?

2.5.4 Confidentiality and safety of women that use the Inquiry procedure

The inquiry comented by the CEDAW Committee

 

3. Pros and Cons of Different Human Rights Mechanisms

 

4. Useful links

 

1. CEDAW Convention – basic information:

 The CEDAW Convention was adopted by the UN General Assembly in 1979 and entered into force in September 1981, 30 days after being ratified by 20th State Party. As of May 2009, 186 states out of 192 UN members are party to CEDAW. This makes the Convention one of the most highly ratified international human rights treaties. The Convention was prepared and adopted with an aim to better protect and promote women’s human rights.

The Convention is the first international document that defined the term “discrimination against women”.

1.1. Discrimination against women – definition:

 

According to article 1 of the CEDAW Convention:

 

the term “discrimination against women” shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of the marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.

 

The definition is broad and covers not only the direct types of discrimination which are often easy to identify, but also such forms of it, no matter whether intended or not, which result from the laws, policies or practices that are formally gender neutral but that, in practice, have a negative impact on the situation of women. The discriminatory acts may include any distinction, exclusion or restriction that leads to the unequal opportunity of men and women to enjoy or exercise their human rights and fundamental freedoms in all areas of life. According to the Convention the rights of all women should be protected on an equal basis. Article 1 read together with article 3 obliges the States Parties to take all appropriate measures to ensure development and advancement of women. This includes also steps aimed at eliminating barriers faced by women that are rooted in the culture and customs.

1.2 Measures to eliminate discrimination:

 

The States Parties to CEDAW Convention committed  themselves to condemn and eliminate all forms of discrimination against women. As stated in articles 2-5, the States Parties shall take all appropriate measures in all areas of life (political, social, economic, cultural, etc.) to ensure the advancement of women in order to guarantee them full enjoyment of human rights and fundamental freedoms on the basis of gender equality. The means that shall be used to achieve these goals and to eliminate discrimination against women include the following measures:

  • introducing new laws,
  • establishing tribunals and other public institutions to protect women against discrimination,
  • modifying or abolishing existing laws, customs and practices that are discriminating against women;
  • introducing sanctions where appropriate to provide women with effective protection against discrimination by any person, organization and enterprise.
  • introducing temporary special measures that shall not be considered discrimination if adopted in order to accelerate “de facto equality between men and women”. These special measures shall in no way lead to maintaining “unequal or separate standards” and “shall be discontinued when the objectives of equality of opportunity and treatment have been achieved.”

By accepting the Convention the State Parties also committed themselves to taking all appropriate measures to modify social and cultural patterns of social gender roles in order to eliminate prejudices and all kinds of practices based “on the idea of the inferiority or the superiority of either of the sexes or on the stereotyped roles of men and women.”

The CEDAW Convention permits the States to “enter a reservation” at the time of ratification or accession if the reservation is not incompatible with the object and the purpose of the treaty. This means that States can declare that they will not be bound by certain provisions of the treaty. The information on the reservations entered by the States Parties are available at the website of the Office of the UN High Commissioner for Human Rights.

1.3 Areas covered by CEDAW

 

The Convention covers “all forms of discrimination” in all areas of women’s lives including “political, economic, social, cultural, civil or any other field” (Article 1). This means that the Convention obliges states to take ‘all appropriate measures’ to eliminate discrimination against women in every area of her life including in the family. In addition, the Convention includes a number of articles which relate to specific areas of women lives including:

 

  • Trafficking and exploitation of prostitution (art. 6)
  • Political and public life (art. 7)
  • Representation and participation (art. 8)
  • Nationality (art. 9)
  • Education (art. 10)
  • Employment (art. 11)
  • Health (art. 12)
  • Economic and Social Benefits (art. 13)
  • Rural women (art. 14)
  • Equality before the law (art. 15)
  • Marriage and family life (art. 16)

1.4 General recommendations

 

The convention is interpreted by the Committee on Elimination of All Forms of Discrimination Against Women (CEDAW Committee) in the official statements – general recommendations – which are issued in order to provide a deeper understanding of the rights and responsibilities contained in the Convention and its application as well as provide the states with guidance on how to implement the Convention. General recommendations reflect the development of women’s human rights standards and progressive interpretation of those rights by the CEDAW Committee.

More detailed information on how the specific rights protected by the Convention shall be understood is available in the following general recommendations:

  • Violence against women – general recommendation No. 19, 1992
  • Equality in marriage and family relations – general recommendation No. 21, 1994
  • Women in political and public life – general recommendation No. 23, 1997
  • Women and health – general recommendation No. 24, 1999

Another noteworthy recommendation – general recommendation No. 25 – provides important information on ‘temporary special measures’ that shall be taken by States Parties to accelerate the de facto equality between men and women.

To date there are 25 general recommendations. All general recommendations are available at the UN website: http://www.un.org/womenwatch/daw/cedaw/recommendations/recomm.htm#top

1.5 CEDAW Committee

 

The Committee on the Elimination of Discrimination against Women (CEDAW) is the UN body established in 1982 and provided with the mandate to monitor the implementation of the CEDAW Convention by the States Parties and to draw their attention to the issues that affect women by making the adequate recommendations.

The Committee consists of 23 members – independent experts in women’s rights issues covered by the Convention – elected in line with the principle of equitable geographical distribution in membership and the representation of “the different forms of civilization as well as the principal legal systems”.

The Committee meets 3 times a year (from 2010 onwards) to review the state parties performance in implementing its obligations under the Convention through an assessment of national reports submitted by the States Parties and NGO shadow report. The Committee also discusses other areas of work including General Recommendations and cases under the Optional Protocol to CEDAW. Up to date the Committee formulated 25 general recommendations with the aim of providing the States Parties with guidelines on how to interpret the Convention and on what they shall include in their reports.

The Committee plays a crucial role in the interpretation of the provisions of the Convention. The Optional Protocol to CEDAW Convention provided the Committee with the mandate to receive the complaints by women or on their behalf (communications procedure) as well as to initiate an inquiry into grave and systematic violations of women’s human rights (inquiry procedure). 

1.6 Reporting process

 

The States Parties to the CEDAW Convention are obliged to submit the national reports to the CEDAW Committee, which monitors the implementation of the Convention. According to article 18 of the Convention, the States are obliged to submit the following reports:

  • initial report within one year after the CEDAW Convention enters into force in the State concerned;
  • periodic reports at least every four years and whenever the Committee so requests.

The reports shall include the information on the legislative, judicial, administrative and other measures that have been adopted by the States and on the progress made.

The reports submitted to date by States Parties as of August 2008 are available at: http://www2.ohchr.org/english/bodies/cedaw/sessions.htm  

1.7 Role of NGOs: Providing Alternative Information to the Committee

 

The CEDAW Committee welcomes the country-specific NGOs shadow/alternative reports providing additional information on the implementation of the Convention in the country concerned.

Many Shadow reports submitted to CEDAW Committee since July 2004 can be found at the website of IWRAW Asia Pacific: http://www.iwraw-ap.org/cedaw/cedaw-sessions/documents-from-cedaw-review-sessions/ 

In addition, NGOs can attend the review of their governments and make oral interventions as well as meet with Committee members to inform them about the most critical issues relating to women’s rights in your country.

1.8 State Parties

 

The full list of States Parties to CEDAW is available at https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-8&chapter=4&lang=en

 

 

2. The Optional Protocol to CEDAW Convention

 

2.1 Basic information

 

The Optional Protocol to the Convention on Elimination of All Forms of Discrimination against Women (OP-CEDAW) was adopted by UN General Assembly in October 1999 and was opened for signatures in December 1999. It came into force in December 2000 after being ratified by 10 countries. As of February 2008, there are 96 State Parties to the Optional Protocol to CEDAW (the states that acceded to/ratified the Optional Protocol).

 

The Optional Protocol is a separate treaty that supplements the CEDAW Convention. To become party to the Optional Protocol, the state has to be a party to the Convention and then it must also ratify the Optional Protocol. The Protocol does not permit any reservations by State Parties. However, it allows a State Party to declare that it does not recognize the competence of the CEDAW Committee to apply one of the procedures provided by the OP – the inquiry procedure.

The Optional Protocol does not introduce any new rights but strengthens the Convention by establishing two procedures that can be used to address the violations of women’s human rights protected by it:

 

  • the communications procedure – the procedure which allows the individuals or groups of individuals who claim to be victims of violations of  women’s rights to lodge complaints with the CEDAW Committee, the UN body monitoring the implementation of the Convention. The complaints can be also submitted on behalf of the alleged victims but in such case their consent is required unless acting without such consent can be justified.

The communications procedure allows the complainants to seek redress for the breaches of women’s human rights protected by the Convention.

All States Parties to OP-CEDAW recognize the competence of the Committee to receive and consider the communications submitted under this procedure.

The interim measures

The Optional Protocol provides the CEDAW Committee with the mandate to transmit to the State Party concerned for its urgent consideration a request to take the necessary interim measures aimed at protecting the victim/victims of the alleged violations from the possible irreparable damage. The Committee may use this mechanism if it believes that the victim is exposed to physical or mental harm of irreparable consequences. Interim measures may be ordered by the Committee at any time after receiving the communication.  more 

 

  • the inquiry procedure – the mechanism under which the CEDAW Committee may conduct the investigation, preferably in cooperation with the State Party concerned,  into “grave and systematic violations” of the women’s human rights protected by CEDAW that occur within the jurisdiction of the State Party.

The State Party may, at the time of signing, ratifying or acceding to the OP-CEDAW, declare that it does not recognize the competence of the CEDAW Committee to apply the inquiry procedure (the so-called ‘opting-out’ clause). Therefore, individuals or groups that consider appealing to the Committee for initiating the investigation under this procedure should check whether the State party concerned has not ‘opted-out’ of it.

 

More about: communication procedure and inquiry procedure

 

The Optional Protocol provides the CEDAW Committee with an instrument to contribute to improving the State’s understanding of the rights protected by the Convention. It can stimulate positive changes in laws and practices that are discriminatory against women. The communications procedure enables the Committee to explore the individual cases of women’s rights abuse and to request that the States take appropriate measures to improve the observance of these rights. The possibility of filing the complaint might also motivate the States Parties to improve access to remedies at the national level for victims of alleged women’s rights violations.

 

2.2 The obligations of the States Parties under the Optional Protocol

 

By ratifying/acceding to the Optional Protocol to CEDAW Convention all States Parties commit themselves to recognize the competence of the CEDAW Committee to receive and consider the individual or group complaints lodged under the communications procedure about the violation of women’s rights guaranteed by the Convention. The States Parties are also committed to implement the recommendations of the Committee transmitted to the State Party together with its views as the result of examination of the complaint submitted under this procedure.

 

States Parties and the inquiry procedure

Although the Optional Protocol, unlike the CEDAW Convention, allows no reservations to any of its articles, the State Party may declare, at the time of signature or ratification/accession, that it does not recognize the competence of the CEDAW Committee to examine under the inquiry procedure the violations of women’s human rights by the State Party (art. 10 of OP CEDAW). In other words the States Parties have the possibility to opt-out of the inquiry procedure. However if the State does not opt-out of the inquiry procedure then the CEDAW Committee can decide to initiate an inquiry and this may include a country visit with the permission of the state concerned.

2.3 The impact of reservations to CEDAW under the OP CEDAW

 

The Committee has stated that Articles 2 and 16 are core provisions of the treaty and as such reservations against them are incompatible with the spirit and purpose of the Convention and thus invalid reservations. As such, the Committee will still consider a states obligations under these articles in the reporting process and in deciding cases under the OP CEDAW. The Committee is currently discussing the impact of reservations to other articles of CEDAW under the OP CEDAW and will likely follow the precedent of the Human Rights Committee which enables the Committee to decide if it will consider a case relating to articles which are subject to reservations.

2.4 The Communications procedure

 

2.4.1 What is the communications procedure?

 

The communications procedure is a mechanism established by the Optional Protocol to the CEDAW Convention that allows the individuals and the group of individuals – victims of the violation of women’s human rights guaranteed by CEDAW Convention – to file the complaint (submit a communication) to the CEDAW Committee provided that the violation occurred under the jurisdiction of the State that has ratified/acceded the Optional Protocol.

It is important to note that the communication can be also submitted on behalf of the victims of alleged violations. However, in such case it is necessary to have the victims consent unless acting without such consent can be justified by the author of the complaint.

2.4.2 Who can submit the communication?

 

The communication can be submitted by:

 

  • Individuals and groups of individuals that claim to be victims of the violation of any right protected by the CEDAW Convention by the State which is a Party to the Optional Protocol to CEDAW (the State that ratified/acceded the Optional Protocol). This includes groups of individuals, named or not identified by name, whose rights have been breached, as well as groups that have suffered the violations as a group (for example the organizations prohibited by the state from protecting women’s rights). The victim/victims of the alleged violations do not have to be citizens or residents of the State Party but should have been under its jurisdiction at the time the facts occurred. It is also not necessary for the victims to stay within the territory of the State Party when the facts occurred if the violation happened under the State’s jurisdiction. For example the violation might affect a woman who is its State’s citizen but lives abroad.
  • Other authors of the communications acting on behalf of a victim/victims of the alleged violations and with their consent unless they can justify acting on their behalf without such consent. The representatives of the victims do not have to be under the jurisdiction of the State Party.

2.4.3 When can the communications procedure be used?

 

The communications procedure can be used after all domestic remedies have been exhausted which means that the victim/victims of the alleged violation of women’s rights protected by the CEDAW Convention should first seek justice at the national level by using all available remedies, unless it can be justified that the process is unreasonably prolonged or unlikely to bring effective relief.

There is no time limit for submitting the communication.

 

2.4.4 How to use the communication procedure and prepare the communication?

 

The communications procedure includes:

-        submitting the complaint;

-        the decision of the CEDAW Committee on the admissibility/inadmissibility of the communication;

-        the steps taken by the Committee as follow-up of its decision on admissibility.

 

The information provided below refers to the first step of the procedure – to submitting the complaint:  

 

-          If you plan to use the communications procedure make sure that:

 

    • the State that has violated your rights protected by the CEDAW Convention or the rights of the victim/victims that you are acting on behalf of, has ratified or acceded the Optional Protocol to CEDAW;
    • the facts that are subject to the communication occurred after the Optional Protocol entered into force for the State Party concerned. The only exception is where those facts (the discrimination/violation) continued after that date although they had started before it; (more)
    • the victim/victims of the violations of the women’s rights that you plan to represent in the communication to the CEDAW Committee have given you her/their consent, unless you can justify why you are proceeding without it. This might be the case where the victim  is unable to consent because of the lack of legal capacity, serious illness or other important reasons. Also, if the communication is submitted on behalf of a large group of victims it may be unrealistic to get consent from each of them. In some cases the victims may fear giving their consent because of the risk of ill-treatment or other retaliatory acts;
    • all available remedies at the national level have been exhausted. The CEDAW Committee may waive this requirement if it can be justified that the process is unreasonably prolonged or unlikely to bring effective relief;
    • the same matter has not been examined by CEDAW Committee or has not been or is not being examined under another procedure of international investigation or settlement;
    • the communication you submit is not anonymous.

-          While working on the communication be sure to:

 

    • prepare it in writing;
    • link the facts that occurred and are the subject of the communication to the rights protected by the CEDAW Convention;
    • present the information pointing to discrimination based on sex or gender;
    • provide the CEDAW Committee with all necessary information. Although there is no obligatory format for filing a complaint the model form available at the address below might be helpful: http://www.un.org/womenwatch/daw/cedaw/opmodelform.html

Additional information that might be helpful are also available at: http://www2.ohchr.org/english/law/docs/Part_of_FS.No.7.pdf

 

Please note that the secretariat of the CEDAW Committee has been transferred to Geneva and the complaints should be sent to:

Petitions Team
Office of the High Commissioner for Human Rights
United Nations Office at Geneva
1211 Geneva 10, Switzerland

Fax:+ 41 22 917 9022
(particularly for urgent matters)

    • submit the communication in one of the working languages of the Committee (English, Russian, French, Spanish, Chinese or Arabic).
    • if possible, supplement your communication with additional information or supportive evidence to better explain the issues presented in the complaint (e.g. the violation, situation of the victim/victims). In this case other forms than written documents may be used;
    • provide the CEDAW Committee with information on the remedies that you seek. The victims of the women’s rights violation may ask for redress, such as financial compensation, but also for adequate measures to be implemented by the State in order to eliminate the factors that allowed the discrimination to take place.

 

 

2.4.5 When will the CEDAW Committee refuse to accept the communication?

 

The communication will not be received by the CEDAW Committee if it is not consistent with art. 2, 3 and 4 of the Optional Protocol to CEDAW, in particular if:

 

  • the claim refers to a State that is not a party to the Optional Protocol;
  • the communication is anonymous;
  • there is no consent of the victim/victims of the alleged right’s violation on whose behalf the claim has been filed unless acting without such consent has been justified;
  • not all remedies available at the national level have been used. The CEDAW Committee requires the victim/victims of the alleged violations to seek justice within the national legal system and exhaust all available domestic remedies before submitting a communication. The Committee may abandon this requirement if the application of the legal remedies is “unreasonably prolonged” or “unlikely to bring effective relief”;
  • the communication is inadmissible under the art. 4.2 of the Optional Protocol to CEDAW.

2.4.6 What are the inadmissibility criteria under art. 4.2 of the OP CEDAW?

 

The Committee will find the communication inadmissible where:

 

 1. The same matter has already been examined by the CEDAW Committee or has been or is being examined under “another procedure of international  investigation or settlement”. However:

  • In order to decide whether the case is ‘the same matter’ as the one that has already been examined under the ‘international investigation and settlement procedure’ the Committee will examine the facts brought up in the communication and consider the rights that are claimed to be violated. The Committee may decide that the matter is not the same if the facts described in the communication differ significantly from those brought up in the former case and/or the author of the communication claims that other human rights than those brought up before have been violated. In the second situation the Committee may find the communication admissible even if the facts in both cases are the same. 

 

  • Not all procedures of international human rights bodies are of the ‘investigation or settlement’ nature since not all of them provide the opportunities necessary to meet requirements for such a procedure (e.g. the identification of remedies for the victim). Therefore, it is possible to submit the case to CEDAW Committee and other human rights institution if the latter does not examine the cases under the investigation procedure (e.g. the reporting procedures of UN Special Rapporteur on Violence against Women; Special Rapporteur of the Inter-American Commission). 

 

 2. Not all available remedies at the national level has been exhausted.

The CEDAW Committee requires the victim/victims of the alleged violations to seek justice within the national legal system and exhaust all available domestic remedies before submitting a communication. However the Committee may decide that this condition does not have to be fulfilled if the available remedies are “unlikely to bring effective relief” their application is “unreasonably prolonged”.

 

3. The communication is incompatible with the provisions of the CEDAW Convention.

The Committee will find it incompatible if:

  • the rights that are claimed to be violated are not guaranteed by the CEDAW Convention;
  • the State responsible for the alleged violations is not a Party to the Optional Protocol;
  • the violations took place outside the jurisdiction of the State-Party;
  • the remedies sought in the communication would contradict the goals of the Convention.

 

4. The communication is “manifestly ill-funded”.

This will happen if:

  • the communication is based on the incorrect interpretation of the Convention;
  • the facts brought up in the communication do not constitute a violation of the rights protected by the Convention.

 

5. The communication is “not sufficiently substantiated”.’

It might be found not sufficiently substantiated if:

  • the presentation of the facts is too general and not linked to the situation of the victim/victims of the violation and the specific harm she or they suffered;
  • the information on the violation is not backed up with factual information and documents which make the allegation credible.

Therefore, the communication should include the detailed description of the facts supporting the claim: the dates, the identity of actors responsible for the violations as well as the description of the impact the violation has had on the victim’s situation. It should also provide documents illustrating the case and the process of exhausting the domestic remedies (e.g. medical documentation, statements of the witnesses, court documents).     

 

6. It is an abuse of the right to submit the communication.

The Committee might decide submitting the communication an abuse of the right if:

  • the author’s intent is of malicious nature or the communication was submitted for clearly political reasons;
  • the facts presented in the communication are untrue;
  • the communication had been filed earlier and found inaccessible.

 

7. The facts that are subject of the communication occurred before the OP CEDAW came into force for the State Party concerned unless those facts continued after that date.

It might be difficult to determine when the facts that started prior to the ratification of the Optional Protocol will be considered as continuing since decisions of human rights bodies have not provided clear guidance on that. However, such continuation undoubtedly occurs if the violation is reaffirmed by some decision or other act after the Optional Protocol enters into force.

2.4.7 What are ‘the interim measures’?

 

The CEDAW Committee has the mandate to request that the State Party take urgent measures aimed at protecting the victim/victims of the alleged women’s rights violation from the potential ‘irreparable’ harm that she or they are exposed to. The term ‘irreparable damage’ includes, for instance, the threat to life or the risk of torture.  The interim measures can be applied to protect the victims from domestic violence or from deportation, including to countries where the victim’s life would be threatened. The Committee makes the decision about using interim measures on the basis of the information presented by the complainant at any stage of the process between the receipt of the communication and the decision on the merits.

The Committee’s request for the State to apply the interim measures does not imply a decision on admissibility or the merits of the case.

2.4.8 What happens after submitting the communication?

 

After the communication has been received and provided that the victim/victims of the violation consent to the disclosure of their identity to the State concerned the Committee will bring it confidentially to the attention of the State concerned and will request a written reply to the communication. This explanation or statement should be delivered to the Committee within six months and should relate to the admissibility of the communication and its merits, as well as to any remedy that may have been provided in the matter.

The Committee may also request the author/authors of the communication to submit additional explanation concerning the admissibility or the merits of the case.

The Committee will transmit to each party (the State and the author/authors) the explanations/statements of the other party and provide them with the opportunity to comment within the fixed time limits.

Before making the decision on the merits of the complaint, the Committee will decide on its admissibility. This decision can be made before the State submits its written comments.

To determine whether the communication is admissible or the Committee will check if it meets the requirements set up in the articles 2,3 and 4 of the Optional Protocol.

For more information see:

When will the CEDAW Committee refuse to accept the communication?

What are the inadmissibility criteria under art. 4.2 of the OP CEDAW?

At any stage of the process between the receipt of the communication and the decision on the merits the CEDAW Committee may decide – on the basis of the information presented by the complainant – to address the relevant State with the request to take the interim measures aimed at protecting the victim/victims of the alleged women’s rights violation from the potential ‘irreparable’ harm that she or they are exposed to.

 

  • What happens if the communication is inadmissible?

 

If the CEDAW Committee decides that the communication is inadmissible, it will communicate its decision and the reasons for it as soon as possible to the author of the communication and the State concerned.

The decision of the Committee is irrevocable, however, it can be reviewed by the Committee if it receives a written request submitted by or on behalf of the author/authors of the communication containing the information indicating that the reasons for inadmissibility no longer apply.  

 

  • What happens if the communication is admissible?

 

After the decision on the admissibility of the communication is taken, the Committee will focus on the merits of the complaint. The Committee will submit confidentially the communication to the relevant State and will ask it to send its written explanation or statement concerning the complaint, as well as information about any remedies granted in relation to it. The identity of the complainant will be disclosed to the State provided that she has given her consent for that. However if she does not give her consent then the communication will not be sent to the state party and can not be pursued by the Committee.

The State Party will have six months to send the response to the Committee. This response will be transmitted to the author/authors of the communication who will have the opportunity to submit comments to it within the fixed time limits. 

The Committee will consider its position on the communication in light of “all information made available to it by or on behalf of individuals or groups of individuals and by the State Party concerned”. The Optional Protocol obliges the Committee to transmit the information received to the parties concerned: the author/authors of the complaint and the relevant State Party.

The communication is examined by the Committee in closed meetings and no information related to the communication will be made public prior to the date on which its views are issued. The Committee may request the author/authors of the communication and the related State to keep confidential the whole or part of the submission or information relating to the proceedings.

If the Committee finds the State Party responsible for the violation alleged in the communication, it will formulate the recommendations to the State defining the steps that should be taken in order to remedy the violation.

Possible recommendations include:

    • Measures aimed at terminating the ongoing violation of victim’s rights and at preventing the repetition of the violations;
    • Remedies for the victims such as compensation, restitution, rehabilitation;
    • Eliminating laws, policies and programs that are incompatible with the CEDAW Convention.     

The Committee will transmit its ‘views and the recommendations’ to the State Party and to the author/authors of the communication. The decision of the Committee will be made public. Within six months the State Party shall respond in writing to the Committee’s views and shall inform the Committee about any actions taken to implement the recommendations.

Although the Committee’s decision is not legally binding, the Committee will use its procedures to influence the State and convince it to implement the recommendations. Supportive actions taken by women’s NGOs can also significantly contribute to holding the State accountable for observing the Committee’s recommendations.

2.4.9 Confidentiality and Safety of women that use the Communications Procedure:

 

The OP CEDAW does not allow for anonymous complaints (Article 3). This means that a woman making a complaint under the OP CEDAW must provide her name. The reason for this is the underlying principle that the state party must have a fair opportunity to answer to the charges laid against it. In the case of a group of women lodging a communication, it may be possible for some of the women to stay anonymous if other women are willing to provide their names.

 

Article 11 of the OP CEDAW Convention states that state parties must take all appropriate measures to ensure that any individual or group of individuals that use the OP CEDAW are not subjected to ill-treatment or intimidation as a result of using the OP CEDAW. In cases where women fear that they may suffer reprisals they should inform the Committee of this at the time of making their complaint or request for any inquiry and request interim measures to protect their safety if appropriate.

Some cases submitted to CEDAW Committee under the communication procedure:

 

Full information available at: http://www2.ohchr.org/english/law/jurisprudence.htm

 

 

B.J. vs. Germany, CEDAW/C/36/D/1/2003. The author of the communication claimed that an unwanted divorce had had a negative impact on her financial situation. The woman stated that, generally, laws regulating divorce systematically discriminated against older women who divorce after long marriages and do not receive sufficient compensation.

On 14 July 2004 the communication was determined inadmissible. This was due to the fact that the divorce proceedings became final prior to the entry into force of the OP-CEDAW. Also, the complainant failed to exhaust domestic remedies, as some of the claims at national level had not been definitively settled at the time of filing the communication.

 

A.T. vs. Hungary, CEDAW/C/36/D/2/2003. The author claimed that the State breached its positive obligations under the convention by failing to provide effective protection from her former husband from whom she had suffered severe and regular domestic violence. As far as exhaustion of all domestic remedies, there were still other available remedies, but they were not likely to bring effective relief and were not timely, given the circumstances of abuse. Another crucial fact was that the author had no possibility of obtaining temporary protection while criminal proceedings were in progress and that the defendant had at no time been detained. On 26 January 2005 the Committee determined that a violation of the Convention had taken place and made recommendations to the State Party regarding the author (victim) as well as recommendations of a general nature.

 

Dung Thi Thuy Nguyen vs. The Netherlands, CEDAW/C/36/D/3/2004. The author claimed to be a victim of discriminatory maternity benefits, which gave her less than full compensation for loss of income during her pregnancy. Ms. Nguyen argued that under the CEDAW it was the State’s obligation to ensure women were not financially disadvantaged due to pregnancy. The communication was found admissible on the grounds that the author’s maternity benefits came into effect after the entry into force of the Optional Protocol and that domestic remedies had been exhausted. However, no violation of the convention was found. The committee stated that the CEDAW does not protect pregnant women from loss of full income because it leaves to States Parties a certain margin of discretion to devise a system of maternity leave benefits.

 

A. S. vs. Hungary, CEDAW/C/36/D/4/2004. The author, a Roma woman, claimed to have undergone forced sterilization when she came into the hospital for an emergency caesarean section to remove her dead fetus. This communication was found admissible and was decided on its merits. The committee agreed that all domestic remedies had been exhausted and found that the facts being the subject of the communication, despite having occurred prior to the entry into force of the OP in Hungary, were of a continuous nature. Moreover, the committee stated a failure of the State Party, through the hospital personnel, to provide appropriate information and advice on family planning, which constitutes a violation of the author’s right under the CEDAW. Also, the committee considered that in this case, the State Party did not ensure that the author gave her fully informed consent to be sterilized. Therefore, specific recommendations regarding compensation for the author and on taking further measures in relation to women’s reproductive health were made to the State Party.

 

Şahide Goekce (deceased) v. Austria, CEDAW/C/39/D/5/2005. This was a case relating to domestic violence which ended in the death of the victim at the hands of her husband. The authors claimed that Sahide Goekce was a victim of a violation by the State Party under CEDAW, when the State Party failed to take appropriate measures to protect Sahida’s right to personal security and life and failed to prosecute her husband as an extremely violent and dangerous offender under criminal law. There was also lack of coordination between law enforcement and judicial personnel. The committee held the complaint admissible. The police were found to be accountable for failing to exercise due diligence to protect Sahide Goekce. The committee also stated that the perpetrator’s rights cannot supersede women’s human rights to life and physical and mental integrity and that the public prosecutor should not have denied the request of the police to arrest the perpetrator.

 

Fatma Yildirim (deceased) v. Austria, CEDAW/C/39/D/6/2005. This was a case relating to domestic violence which ended in the death of the victim at the hands of her husband.The authors argued that the state party had failed to take appropriate measures to protect Fatma Yildrim’s right to life and personal security as a victim of domestic violence. Poor communication between the police and the Public prosecutor did not adequately allow the prosecutor to assess the danger posed by Fatma’s husband. There was a lack of due diligence since the criminal justice system, particularly prosecutors, considered domestic violence as a minor offence. Hence criminal law was not applied to such violent behavior because law enforcement authorities did not take the danger seriously. The committee found that Fatma had made positive and determined efforts to save her life and failure to detain her husband was considered to be a breach of the State Party’s due diligence obligation to protect Fatma. Once again, the committee held that a perpetrator’s basic rights, such as the presumption of innocence, private and family life, right to personal freedom cannot supersede women’s human rights to life and to physical and mental integrity.

 

Cristina Muñoz-Vargas y Sainz de Vicuña v. Spain, CEDAW/C/39/D/7/2005. The author claimed that the State Party had discriminated against her on the basis of sex by denying her the right as a first born child to succeed her late father to the nobility title. The committee held this communication inadmissible. Firstly, the Committee held that the cause of action (the discrimination) ended before the State became a party to the convention. Secondly, concurring opinions of the committee members stated that nobility titles were neither human rights nor fundamental rights and their nature was purely symbolic. On this basis the communication was found inadmissible.

 

Rahime Kayhan vs. Turkey, CEDAW/C/34/D/8/2005. The author, who is a school teacher and a national of Turkey, claimed to have suffered discrimination when she was dismissed from her employment at a State school for refusing to take off her headscarf while at work. The case was declared inadmissible because domestic remedies had not been exhausted. Ms. Kayhan did not argue discrimination on the basis of sex at the national level before submitting the communication to the Committee. The committee did not agree with the State Party’s claim that the communication was inadmissible because the European Court of Human Rights had examined a case that was similar, as the author was a different individual. As far as ratione temporis (the rule that the a violation must occur after the entry into force of the OP_, although Ms. Kayhan’s employment was terminated before the entry into force of the Optional Protocol, the effects of this termination continued.

 

N.S.F. vs. The United Kingdom, CEDAW/C/38/D/10/2005. This is the case of a Pakistani woman who is fighting her deportation from the UK back to Pakistan, where she claims to fear for her life at the hands of her former husband and where she says the Pakistani government is unable to protect her. The communication was held inadmissible on the ground that the complainant had not yet sought judicial review from the UK High Court to fight her deportation. Moreover, the author had not yet raised the issue of discrimination on the basis of sex at the national level. The committee requested interim measures of protection.

 

Constance R. Salgado vs. The United Kingdom, CEDAW/C/37/D/11/2006. The author alleged that she had suffered sex-based discrimination  on account of not being able to pass her British nationality onto her son, who was born in Colombia, because the nationality laws at the time stated that nationality only passed from the father, not the mother. The Committee held that the communication was inadmissible. The original discrimination against Ms. Salgado occurred when she first tried to obtain British citizenship for her son, and ceased to exist the day her son turned the age of majority. Both of the facts occurred prior to the entry into force of the Optional Protocol. Also, Ms. Salgado never exhausted all reasonably available domestic remedies, which enable a State Party to remedy an alleged violation before the same issue may be raised before the Committee.

 

Zhen Zhen Zheng vs. The Netherlands, CEDAW/C/42/D/15/2007. The author, a Chinese asylum seeker, claimed to be a victim of a violation by the State Party which failed to protect her from trafficking and being forced into prostitution. The committee decided that the communication was inadmissible because all domestic remedies had not yet been exhausted. There were dissenting opinions of three committee members which argued the admissibility of this communication on the grounds that the State Party failed to exercise due diligence and failure to provide the victim with any guidance on the use of appropriate remedies.

 

 

More information available in the publications of IWRAW Asia Pacific (English only):

- An analysis of cases No 6- 10 under the communications procedure of the OP-CEDAW

- An analysis of the first five cases under the communications procedure of the OP-CEDAW

 

and at the website of OHCHR (also in Russian):

http://www2.ohchr.org/english/law/jurisprudence.htm

 

 2.5 The Inquiry Procedure

 

2.5.1 What is the inquiry procedure?

 

The inquiry procedure is the mechanism established by the Optional Protocol that enables the CEDAW Committee to initiate and conduct an investigation after having received reliable information on ‘the grave or systematic’ violations by the State Party of the rights protected by the CEDAW Convention. Unlike the communication procedure the inquiry procedure enables the Committee to conduct its own research and fact-finding activities, including confidential interviews and hearings. It may also include the visit to the relevant country provided that the State consents to it. The inquiry procedure allows the CEDAW Committee to transmit the comments and recommendations resulting from the investigation to the State Party concerned.

A ‘grave’ violation refers to a severe abuse of one or more of women’s human rights protected by CEDAW. It definitely includes discrimination that threatens the right to life, right to integrity of a person and to security.  

A ‘systematic’ violation refers to a pattern of abuse, the scale and frequency of violations, regardless of their intentionality or lack thereof, which result from laws, policies or practices and are not being addressed by the State. The term ‘systematic’ may include the violations which would not be called ‘grave’ but are a consequence of an identified scheme supported by the State.

 

Where the Committee decides to apply the inquiry procedure, it will seek the relevant State Party’s cooperation at all stages of the procedure. However the collaboration of the State is not necessary to initiate the inquiry. The investigation under the inquiry procedure will be conducted confidentially.

 

The inquiry procedure allows the Committee to timely react to severe women’s rights violation and to initiate an investigation on a large scale on its own initiative. However, it has serious limitations since the States Parties are allowed to ‘opt-out’ of it at the time of signing, ratifying or acceding to the Optional Protocol. The so-called ‘opting-out’ clause means that the State Party may declare that it does not recognize the competence of the CEDAW Committee to apply the inquiry procedure.

2.5.2 How to use the inquiry procedure?

 

The inquiry procedure is less formal than the communications procedure in terms of the requirements that should be fulfilled in order to communicate to the Committee the information on the ‘grave or systematic’ violation of women’s human rights under the CEDAW Convention.

There is no specific format that should be used to submit the information – it can be oral or written. Also, there are no restrictions as to who may present the information, which means that it can be also submitted by NGOs and individuals who are not affected by the violation and/or are in no relation with the State Party concerned.  The only requirements are:

  •  the State has to be a Party to the Optional Protocol that has not ‘opted-out’ of the inquiry procedure;
  • the information communicated to the Committee has to be reliable.

Although there are no specific rules for submission of the information to CEDAW it is useful to follow the tips listed below in order to answer the Committee’s demand for information necessary to consider the inquiry procedure.

 

The following guidelines are based on the Resource Guide by IWRAW Asia Pacific “Our rights are not Optional!”, handout 12, p. 85.

 

  • Information on the author/authors of the submission:

»Although the information may be anonymous, it is better to provide the Committee with contact information of the author of the inquiry, which would help to verify the reliability of the information and – if necessary – to ask for additional information: name of person/organization, address, e-mail, phone/fax numbers.

 

  •  Information on the inquiry:

»Argue why the inquiry procedure is the appropriate procedure to address the violation of women’s human rights described in the submitted information;

»Indicate the State Party responsible for the violation/violations;

»Indicate the nature of the violation: ‘grave’, ‘systematic’ or ‘grave and systematic’;

»Provide a brief (one-page) description of the violation/violations and an explanation of why the Committee should initiate the inquiry procedure;

 

  • Detailed information on the nature of the alleged violation:

»Description of the facts, information on the dates, place, harm suffered or to be prevented;

»Information on the victims and impact of the violation/violations;

»Information on the alleged perpetrator/perpetrators;

»Information about actions taken by the victims of the violations, or on their behalf, to obtain remedies, including filing complaints to institutions at national and international level;

»Information about steps taken by the officials to address the violations, and prevent them from happening in the future;

»Information on the action or omission of the State to remedy the situation;

»Additional information supporting the submission, such as statistics, information on the laws and policies and how they affect women’s situation.   

  

2.5.3 What happens after the Committee receives reliable information on ‘grave or systematic’ violation(s) of rights set forth in CEDAW Convention?

 

After receiving the information on the alleged violation of women’s human rights protected by the CEDAW Convention, the Committee takes actions to examine it. It starts with inviting the State Party to cooperate in this process and asking the State to submit the observations with regard to the information received within the fixed time limits.

 

Apart from any observations submitted by the State Party, the Committee will take into account other available information and materials concerning the issue. It may decide to use additional information prepared by:

  • The representatives of the State Party concerned
  • Governmental organizations;
  • Non-governmental organizations;
  • Individuals.

 

If the Committee finds the submitted information reliable, it may designate one or more of its members to conduct the inquiry into the alleged violations and prepare the relevant report within the time limit determined by the Committee. The Committee will seek the State Party’s cooperation at each stage of the process which is confidential.

The methods used within the inquiry will be determined by the members of the Committee delegated to conduct the investigation. The process may include a visit to the country concerned, provided that the State Party consents to it. During the visit the confidential hearings can be organized, however, also in this case the State’s approval is required.

The Committee shall inform the State Party to take all appropriate measures to guarantee that the individuals under its jurisdiction will not experience ill-treatment or intimidation as a consequence of participating in the hearings or meetings with the Committee members.

After the inquiry is completed, the CEDAW Committee:

»Transmits its findings together with comments and recommendations to the State Party and requires that the State submits its observations on the document obtained within six months of its receipt.

»After the end of this six–month period, the Committee may request the State Party to inform it of any measures taken in response to the inquiry.

»May invite the State Party to include the information on the measures taken in response to the Committee’s findings and recommendations in the periodical report to CEDAW under article 18 of the Convention.

2.5.4 Confidentiality and safety of women that use the Inquiry procedure?

 

Although the OP CEDAW does not specifically state that a request for an inquiry must not be anonymous, it holds that a the Committee can only act on ‘reliable’ information and this would most likely result in needing to identify complainants (‘victims of the violation’) to prove the reliability of the information. Also, the principle that a state must have a fair opportunity to answer to the charges laid against it leads to such conclusion.

 

Article 11 of the OP CEDAW Convention states that state parties must take all appropriate measures to ensure that any individual or group of individuals that use the OP CEDAW are not subjected to ill-treatment or intimidation as a result of using the OP CEDAW. In cases where women fear that they may suffer reprisals they should inform the Committee of this at the time of making their complaint or request for any inquiry and request interim measures to protect their safety if appropriate.

The inquiry completed by the CEDAW Committee:

Up to date the CEDAW Committee completed three inquiries:

»the inquiry into the abduction, rape and murder of women in and around Ciudad Juárez area of Chihuahua, Mexico (2005),

»the inquiry into murder and missing Aboriginal women, Canada (2015)

»the inquiry into government’s failure to provide access to the full range of contraceptive information and services (2015) 

The CEDAW Committee inquiry reports are available here.

3. Pros and Cons of Different Human Rights Mechanisms:

 

The decision on which international human rights mechanism to use, when seeking remedies for the victim of women’s rights violations, should be proceeded by careful analysis of the limitations and advantages of the procedures provided by the relevant treaties. The criteria for the choice must include the best interest of the victim and the aims that are planned to be achieved by bringing a case. Although all human rights treaties provide protection from discrimination on the basis of sex, the procedures that they offer differ in terms of their accessibility, remedies and legal force of their decisions.

 

The universal human rights bodies (apart from CEDAW Committee) that admit communications from individuals are: Human Rights Committee (HRC), Committee on Elimination of Racial Discrimination (CERD) and Committee against Torture (CAT). The treaties that they monitor are respectively: the International Covenant on Political and Civil Rights, International Covenant on Elimination of Racial Discrimination and International Convention against Torture.

 

In order to decide which Committee to use, one should take into consideration the specialization of these bodies and analyze their former decisions on similar issues/cases, including their recommendations to the State Parties to remedy the situation. In some cases CEDAW, as the gender specific human rights body, might be easier to use due to its broad definition of discrimination on the basis of sex.

 

A common weakness of all procedures provided by UN Committees is the non-binding character of their decisions. On the other hand, the lack of time limits for submitting the communications to all of them except CERD might be important while choosing between UN and the regional human rights mechanisms. The regional human rights systems include: 1) African Commission on Human Rights and African Court of Justice and Human Rights, 2) Inter-American Commission on Human Rights and Inter-American Court of Human Rights and 3) European Court of Human Rights. The decisions of all regional courts of human rights are binding in contrast to those of the commissions. Out of the three courts listed above, only the European Court of Human Rights admits complaints from the individuals though after rigorous pre-admissibility evaluation. 

 

As mentioned above, the forms of redress sought by the victims of the violations of women’s human rights should be taken into account while deciding which mechanism to use. For example, the CEDAW Committee in its decisions takes into account the systematic aspects of discrimination and, in its recommendations to the States, points to concrete actions that should be taken to prevent the violations from happening in future. This has seldom been a case of European Court of Human Rights which often limits its decisions to defining the compensation for the victims of the violation of the Convention for the protection of human rights and fundamental freedoms.

 

 

For the full text of the Optional Protocol to CEDAW in English and Russian visit:

http://www.ohchr.org/EN/ProfessionalInterest/Pages/OPCEDAW.aspx 

More information about the Optional Protocol to CEDAW is available at:

IWRAW Asia Pacific: http://www.iwraw-ap.org/op-cedaw/what-is-op-cedaw/op-cedaw-overview/  

 

Office of the UN High Commissioner for Human Rights:

http://www.ohchr.org/EN/HRBodies/CEDAW/Pages/CEDAWIndex.aspx