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Why an Optional Protocol?

1. To improve on and add to existing enforcement mechanisms for women's human rights

Until the entry into force of the optional Protocol on 22 December 2000, there were two ways CEDAW was enforced:

The Reporting Procedure

States parties have to submit a national report to the Committee within one year of accession or ratification of CEDAW and thereafter every 4 years or when the Committee requests. In the reports, States must indicate the measures they have adopted to give effect to the provisions of the CEDAW. The Committee discusses these reports with Government representatives and explores areas for further action by the specific country.

The interstate procedure

Under article 29 of CEDAW, two or more State parties can refer disputes about the interpretation and implementation of CEDAW to arbitration, and if the dispute is not settled, it can be referred to the International Court of Justice. This procedure is subject to a large number of reservations and has never been used .

There are also other ways in which women's human rights are monitored by the United Nations:

The CSW Communications Procedure

Under this procedure, the CSW can receive confidential and non- confidential communications about discrimination against women. This procedure is a source of information for policy-making by the CSW but is not linked to the legal framework of CEDAW. It does not assist with individual cases or deal with urgent situations where individuals are suffering continued violations.

Special Rapporteur on Violence Against Women

The special rapporteur was appointed in 1994 by resolution 1994/45 of the Commission on Human Rights. Her mandate was renewed by resolution 1997/44 of the Commission. As well as considering the issue of violence against women generally, the special rapporteur has established procedures to seek information from governments concerning specific cases of alleged violence.

The First Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR)

The first Optional Protocol to the ICCPR allows individuals, whose countries are party to the ICCPR and the protocol, who claim their rights under the ICCPR have been violated, and who have exhausted all domestic remedies, to submit written communications to the UN Human Rights Committee.

States parties to the ICCPR undertake to ensure that women and men enjoy all the civil and political rights in the Covenant on a basis of equality. In addition, article 26 of the ICCPR provides that all people are equal before the law, are entitled to equal protection of the law without discrimination, and that the law shall guarantee equal and effective protection against discrimination. The Human Rights Committee has decided that article 26 of the ICCPR prohibits discrimination in law or in fact in any field regulated by public authorities and that the scope of article 26 is not limited to civil and political rights.

Article 26 can therefore be used to challenge discriminatory laws whether or not they relate to civil and political rights. For example, article 26 was used as the basis of a communication under the first Optional Protocol to the ICCPR to challenge a social security law that discriminated on the ground of sex in the case Broeks v Netherlands.

In a number of cases women have used the communication procedure under the first Optional Protocol to the ICCPR to complain to the Human Rights Committee of the UN about sex discrimination which breaches the ICCPR.

Other Communication procedures

In addition to the procedure under the first Optional Protocol to the ICCPR, women can use existing procedures to complain about some violations of their rights, for example:

  • The Convention on the Elimination of All Forms of Racial Discrimination (article 14)
  • The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (communications procedure - article 22)
  • The 1503 Procedure of the Commission of Human Rights.

The bodies which receive complaints under these procedures, unlike the Committee on the Elimination of Discrimination Against Women, are not specifically directed to gender issues. Features of the Optional Protocol to CEDAW, especially appropriate to women are:

  • the Optional Protocol to CEDAW has an inquiry procedure,
  • individuals, groups of individuals and NGOs may have standing to submit communications,
  • the Optional Protocol to CEDAW incorporates a settlement procedure which would allow the Committee to facilitate settlements of disputes in some circumstances.

2. To improve States' and individuals' understanding of CEDAW

Under a communications procedure, the Committee will be able to focus on individual cases when considering CEDAW. It would be able to say what is required from States in individual circumstances. This would help States to understand better the meaning of the obligations they have undertaken by acceding to CEDAW.

The Committee's views on communications would amount to what is called jurisprudence. Jurisprudence is the term used for a body of case law about any particular subject. It is used for guidance in interpreting laws. Jurisprudence from communications would provide clarification and guidance for States and for individuals about States' obligations under CEDAW. This has occurred with the ICCPR in regard to the publication of the Human Rights Committee's views on the cases that have been brought to it under the Optional Protocol to the ICCPR.

3. To stimulate States to take steps to implement CEDAW

The Optional Protocol should encourage States to implement CEDAW to avoid complaints being made against them. The possibility of complaints being made might also be an incentive for States to provide more effective local remedies.

4. To stimulate changes in discriminatory laws and practices

Under the Optional Protocol, the Committee would be able to request the State party concerned to take specific measures to remedy violations of CEDAW. Requests might include:

  • the amendment of legislation,
  • stopping discriminatory practices,
  • implementing affirmative action measures.

5. To enhance existing mechanisms for the implementation of human rights within the UN system

The Optional Protocol to CEDAW is the first gender specific international complaints procedure. As well as putting CEDAW on a par with human rights treaties which have complaints procedures, it enhances existing mechanisms by specifically incorporating practices and procedures that have been developed under other complaints procedures.

The human rights treaties which also have international complaints procedures are:

  • The International Covenant on Civil and Political Rights (ICCPR) in its first Optional Protocol,
  • The Convention on the Elimination of All Forms of Racial Discrimination (article 14),
  • The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (includes an inquiry procedure).

In addition, some regional human rights instruments have optional complaints procedures.

6. To create greater public awareness of human rights standards relating to discrimination against women

The Optional Protocol requires States to publicize the Optional Protocol and its procedures. Communications and inquiries under the Optional Protocol will receive publicity which will increase public awareness of CEDAW and the Optional Protocol. This has been the case with communications submitted under existing complaints procedures and in particular, communications under the first Optional Protocol to the ICCPR.