The Optional Protocol to CEDAW: First steps

Human Rights Law Review

Volumn 6, Issue 1, 2006, Pages 143-159

  Sokhi Bulley, Bal ^a  

^a UNIVERSITY OF NOTTINGHAM   (United Kingdom)

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[No Author keywords available]

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EID: 33645537065     PISSN: 14617781     EISSN: 17441021     Source Type: Journal    
DOI: 10.1093/hrlr/ngi029     Document Type: Article

References (92)

1. See the 'Division for the Advancement of Women' website at: http://www.un.org/womenwatch/daw/cedaw.
2. Charles, 'Feminist Politics, Domestic Violence and the State', (1995) 43 The Sociological Review 617.
3. UNGA Res. 54/4, 6 October 1999; 7 IHRR 294 (2000).
4. 9 UNTS 13.
5. Report on Mexico produced by the Committee on the Elimination of Discrimination Against Women under Article 8 of the OP to the Convention, and Reply from the Government of Mexico, CEDAW/C/2005/OP.8/ MEXICO, 27 January 2005, at para. 268.
6. Ibid. at para. 288.
7. See the 'Division for the Advancement of Women' website at: http://www.un.org/womenwatch/daw/cedaw/reservations.htm.
8. A more detailed account is available at: http://www.un.org/womenwatch/ daw/cedaw/protocol.
9. This confidential procedure allows the CSW, which is composed of State representatives, to receive communications from individuals alleging discrimination and women's rights violations. The CSW does not take decisions on these communications. They serve, instead, to assist the CSW in policy formulation designed to identify and tackle global patterns of discrimination and other injustices.
10. 999 UNTS 171.
11. 1465 UNTS 85; under Article 22.
12. 660 UNTS 195; under Article 14.
13. See also Articles 2 and 3 for other conditions.
14. Bangladesh, Belize and Cuba have made opting out' declarations.
15. B.J. v Germany (1/03), Admissibility Decision, Annex VIII, A/59/38 (2004); 12 IHRR 998 (2005).
16. A.T. v Hungary (2/03), CEDAW/C/32/D/2/2003 (2005); 12 IHRR 998 (2005).
17. Supra n. 15 at para. 3.3.
18. For an explanation, see ibid. at para. 8.5.
19. See Appendix, ibid.
20. Ibid.
21. See Thomas, 'Domestic Violence', in Askin and Keonig (eds), Women and International Human Rights Law, Volume I (New York: Transnational, 1999) 219
22. Coomaraswamy and Kois,'Violence Against Women', in Askin and Keonig (eds), ibid. 177
23. Charles, supra n. 2
24. Subedi, 'Protection of Women Against Domestic Violence: The Response of International Law', (1997) 6 European Human Rights Law Review 587
25. Vesa,'International and Regional Standards for Protecting the Victims of Domestic Violence', (2004) 12 American University Journal of Gender, Social Policy and the Law 309
26. Dobash and Dobash, 'The Politics and Policies of Responding to Violence Against Women', in Hanmar and Itzsin (eds), Home Truths About Domestic Violence (London: Routledge, 2001) 187.
27. Supra n. 16 at para. 2.4.
28. Under Article 2, States Parties undertake '(a) to embody the principle of equality of men and women in their national constitutions or other appropriate legislation if not yet incorporated therein and to ensure, through law and other appropriate means, the practical realisation of this principle; (b) to adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women;...(e) to take all appropriate measures to eliminate discrimination against women by any person, organisation or enterprise'.
29. Under Article 5, 'States Parties shall take to take all appropriate measures: (a) To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women'.
30. Under Article 16(1), 'States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations'.
31. Supra n. 16 at para. 3.1.
32. Ibid. at para. 3.2.
33. Ibid. at para. 3.3.
34. Ibid. at para. 3.4.
35. Including, for example, provision of free legal aid to victims of gender-based violence.
36. See ibid. at para. 3.4.
37. Ibid. at paras 5.7 and 5.8.
38. Note that the admissibility of the communication was not contested.
39. Ibid. at para. 9.2.
40. Committee on the Elimination of Discrimination Against Women, General Recommendation No. 19, Violence Against Women, 29 January 1992, UN GAOR Doc. No. A/47/38; 1-1 IHRR 25 (1992).
41. Ibid. at paras 1 and 6.
42. Ibid. at para. 9.
43. Supra n. 16 at para. 9.3.
44. Committee on the Elimination of Discrimination Against Women, General Recommendation No. 21, Equality in Marriage and Family Relations, 4 January 1994, UN GAOR Doc. No. A/47/38: 2 IHRR 1 (1994).
45. Article 5(1) reads: 'At any time after the receipt of a communication and before a determination of the merits has been reached, the Committee may transmit to the State Party concerned for its urgent consideration a request that the State party take such interim measures as may be necessary to avoid possible irreparable damage to the victim or victims of the alleged violation.'
46. Supra n. 16 at para. 4.2. The request was made on 20 October 2003, 10 days after the communication was submitted to the Committee by the author.
47. Ibid. at para. 4.8.
48. Ibid. at para. 4.7.
49. Ibid. at para. 9.5.
50. Article 7(3) provides: 'After examining a communication, the Committee shall transmit its views on the communication, together with its recommendations, if any, to the parties concerned:
51. Supra n. 16 at para. 9.6.
52. Ibid.
53. How the Committee has reached the (justifiable) view that domestic violence is a form of gender-based violence and thus discrimination against women under CEDAW is an interesting issue, albeit one that remains outside the scope of this article. General Recommendation No. 19 goes only as far as to say that it is 'violence that is directed against a woman because she is a woman or that affects women disproportionately' (para. 6). For comment in this area, see the literature cited supra n. 21.
54. It is interesting that the other communications currently pending before the Committee nearly all concern domestic violence. The Committee's approach to the issue thus far is promising in terms of, generally, raising awareness of domestic violence as a grave violation of women's human rights and, more specifically, addressing the necessary measures of protection for the victim.
55. A maquiladora is a foreign-owned Mexican company that produces goods for export. In 1965 Mexico started its maquiladora programme: The programme was 'designed to bring jobs and prosperity to northern cities, while at the same time providing cheap labor for foreign owned manufacturers'; see: http://www.environmentalhealth.org/maquiladoras.html#Maquiladora.
56. Annual Report of the Committee on the Elimination of All Forms of Discrimination Against Women, A/59/38 (2004) at para. 393.
57. Article 8 (2) provides, in part: 'Where warranted and with the consent of the State party, the inquiry may include a visit to its territory.'
58. Article 8(3) states: 'After examining the findings of such an inquiry, the Committee shall transmit these findings to the State party concerned together with any comments and recommendations.'
59. Supra n. 5 at para. 66.
60. Ibid. at para. 77.
61. Ibid. at paras 78-86.
62. Ibid. at para. 162.
63. ICHIMU proposes: (i) strategies for the proper conduct of investigations and to combat impunity; (ii) to increase awareness of the rights of women and the violation of these rights in Cuidad Juárez; and (iii) to institute campaigns preventing violence and defending women's rights.
64. See ibid. at para. 217.
65. Ibid. at para. 225.
66. Ibid. at para. 232.
67. Ibid. at para. 264.
68. Ibid. at para. 268.
69. Ibid. at para. 270.
70. Ibid. at 49.
71. Ibid. at 59-62.
72. For details of functions etc., see ibid. at 65-7.
73. Ibid. at para. 159.
74. Ibid. at 93.
75. Ibid.
76. Supra n. 5 at para. 405.
77. Ibid. at para. 408.
78. Other questions which ought to be highlighted but are not considered for want of space include the following: Are the obligations contained in CEDAW really amenable to a quasi-judicial procedure? Does the OP unnecessarily duplicate existing procedures available under UN human rights instruments? And, finally, will the necessary human and financial resources for the effective functioning of such a procedure be made available? See Byrnes and Connors, 'Enforcing The Human Rights Of Women', (1996) 21 Brooklyn Journal of International Law 679 at 697.
79. At: http://www.un.org/womenwatch/daw/cedaw/protocol.
80. NGOs, as well as individuals, have standing to submit communications under Article 2 of the OP; they may also initiate an inquiry into grave or systematic violations by a State Party of the rights set forth in CEDAW providing they can supply, under Article 8(1), 'reliable information' of these violations, as was indeed the case in the Mexico Inquiry.
81. Joint Statement by the Special Advisor on Gender Issues and Advancement of Women, Ms Angela King, and the High Commissioner for Human Rights, Mrs Mary Robinson, on the occasion of the opening for signature of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women, 10 December 1999; available at: http://www.un.org/womenwatch/daw/news/akop.htm.
82. Ibid.
83. The inquiry procedure under the OP is similar to the 'more intrusive' inquiry procedure under Article 20 of the Convention Against Torture and Inhuman and Degrading Treatment or Punishment. See the comment in Steiner and Alston, International Human Rights in Context: Law, Politics, Morals, 2nd edn (Oxford: Oxford University Press, 2000) at 775.
84. The accountability issue applies equally to the Committee's activities in the communications procedure.
85. Isa, 'The Optional Protocol for the Convention on the Elimination of All Forms of Discrimination Against Women: Strengthening the Protection Mechanism's of Women's Human Rights', (2003) 20 Arizona Journal of International and Comparative Law 291.
86. Gilchrist, 'The Optional Protocol to the Women's Convention: An Argument for Ratification', (2001) 39 Columbia Journal of Transnational Law 763.
87. See Thomas, supra n. 21 at 244.
88. Ibid. at 256.
89. See, for instance, the arguments in Ritz, 'Soft Enforcement: Inadequacies of the Optional Protocol as a Remedy for the Convention on the Elimination of All Forms of Discrimination Against Women', (2001) 25 Suffolk Transnational Review 191.
90. Byrnes, 'Using International Human Rights Law and Procedures to Advance Women's Human Rights', in Askin and Keonig (eds), Women and International Human Rights Law, Volume II (New York: Transnational, 1999) 79.
91. Ibid.
92. Byrnes and Connors, supra n. 71 at 783.