United Kingdom Journals

Ending the 'Ghettoisation': The Right of Individual Petition to the Women's Convention

Ursula A. O'Hare LL.B. LL.M.

Lecturer in Law and holder of the Jean Monnet Chair in European Law & Policy
Newcastle Law School
University of Newcastle upon Tyne

<ursula.ohare@newcastle.ac.uk>

Copyright © 1997 Ursula O'Hare.
First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.

Summary

This paper comments upon the current efforts within the United Nations to establish a right of individual petition to the Convention on the Elimination of All Forms of Discrimination Against Women by way of an optional protocol. The paper traces the evolution of the proposed protocol, highlights some of its key features and comments on its potential utility.

Contents

Introduction

Setting the Scene: Enforcement of Women's Human Rights

The Committee on the Elimination of All Forms of Discrimination Against Women (CEDAW)

The Development of the Optional Protocol to the Women's Convention

Why is an Optional Protocol Desirable?

Key Features of the Optional Protocol

(i) Locus Standi

(ii) Exhaustion of Domestic Remedies

(iii) Interim Measures

(iv) Fact-finding Powers

(v) Remedies and Follow-Up

(vi) Inquiry Procedure

Conclusion

Bibliography

Introduction

For some time, the United Nations (UN) system for protecting human rights has been criticised for failing to take violations of women's human rights seriously. The failure of the 'mainstream'⁽¹⁾ human rights bodies to respond to violations of women's human rights and the existence of separate but unequal bodies for ensuring implementation of women's human rights have led to the claim that women's issues are 'ghettoised' within the UN system. In support of this argument, commentators have pointed to the relatively disadvantaged position of the Committee on the Elimination of All Forms of Discrimination Against Women (CEDAW) within the UN human rights structure. The work of the CEDAW, which monitors state compliance with the Convention on the Elimination of All Forms of Discrimination Against Women (Women's Convention) has been hampered by budgetary and procedural constraints to a greater degree than other treaty-based human rights bodies. Moreover, the enforcement mechanisms under the Women's Convention are weaker than under other United Nations human rights instruments. Unlike the Human Rights Committee (HRC) and the Committee on the Elimination of All Forms of Racial Discrimination (CtERD) which administer the International Covenant on Civil and Political Rights (ICCPR) and the Convention on the Elimination of All Forms of Racial Discrimination (CERD) respectively, the CEDAW is unable to receive inter-state complaints or petitions from individuals alleging their rights under the Convention have been violated.

The principle of equal enjoyment of human rights without distinction on the basis of sex is well enshrined in UN human rights instruments. The Vienna World Conference on Human Rights in 1993 stressed the indivisibility of human rights for women and urged the mainstreaming of women's issues within the UN system (UN Doc. A/CONF.49/668 of 25 June 1993). Building upon this framework, the UN's Fourth World Conference on Women in Beijing in September 1995, the United Nations formally affirmed that 'women's rights are human rights' (UN Doc. A/CONF. 177/20 of 17 October 1995) and committed itself to ensuring the 'full implementation of the human rights of women' as 'an inalienable, integral and indivisible part of all human rights' (para. 9 & 14). In support of this objective, a draft optional protocol to the Women's Convention which would empower the CEDAW to receive individual (but not inter-state) petitions is currently before the Commission on the Status of Women. It signifies the extent to which the human rights movement has begun to respond to demands for an end to the 'ghettoisation' of women's issues within the international human rights movement. The draft protocol draws and builds upon the best practice of other treaty-based bodies and, if adopted, would introduce some significant advances on the current practice of other treaty-based bodies. This paper will comment on the evolution of the current draft optional protocol (OP) and highlight some of its key features. It does not attempt to discuss the important issue of the justiciability of the provisions of the Convention (Byrnes & Connors 1996).

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Setting the Scene: Enforcement of Women's Human Rights

In recognition of the particular difficulties faced by women across the globe in securing their human rights on a basis of equality with men, the UN established two discrete bodies with responsibility for ensuring the realisation of women's human rights. The Commission on the Status of Women, which was established in 1947, has overall responsibility for promoting the advancement of women's issues. Its most important achievement to date is the Women's Convention which was finally adopted by the UN General Assembly in 1979 (UN Doc. A/Res 34/180). The Convention consolidates international guarantees of women's human rights. It recognises that women's disadvantage is rooted in systematic and structural discrimination, supported by cultural and religious practices, and imposes potentially far-reaching obligations on states not only to eliminate women's inequality, but to work towards modifying those patterns of conduct based upon `the idea of the inferiority or the superiority of the sexes or on stereotyped roles for men and women' (Article 5). The task of monitoring state parties compliance with the Convention is entrusted to CEDAW consisting of 23 independent experts appointed with due regard to equitable geographical representation (Article 17(1)).

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The Committee on the Elimination of All Forms of Discrimination Against Women (CEDAW)

The Women's Convention came into force in 1981. To date the Convention has been ratified by 154 states, making it, after the Convention on the Rights of the Child, one of the most widely ratified, but also one of the most widely reserved, of all UN human rights conventions; Since it started work in 1982 the CEDAW has been curtailed by procedural and financial restraints. For example, the CEDAW is uniquely limited by the terms of the Convention to a two week annual session (Article 20). In 1995 the Committee was finally successful in introducing an additional working week into its session, but the legacy of Article 20 means that the Committee remains hindered by a serious backlog of work (Byrnes & Connors 1996). Moreover, although the level of financial and administrative support has improved since 1990 (Byrnes 1991a), the Committee continues to be acutely under-resourced as compared with other treaty-based bodies, whilst its work load has increased dramatically. The CEDAW suffers too from geographical isolation. It is serviced by the Division for the Advancement of Women, based from 1993 in New York, and not the Centre for Human Rights which is based in Geneva and which services all other treaty-based bodies. This geographic isolation has contributed to the sense of 'ghettoisation' since the Committee does not enjoy the benefits of close co-operation with the Geneva-based bodies to which the mainstream non-governmental organisations (NGOs) direct their attention (Gallagher, 1997).

In line with the practice of all other treaty-based bodies, the Committee monitors state compliance with the Convention by way of a periodic state reporting system (Article 18). Whatever its weaknesses, the reporting procedure is an important tool for monitoring state compliance with the Convention, and in recent years substantial progress has been made towards improving the effectiveness of the reporting procedure (Jacobson, 1995). For example, from its thirteenth session the CEDAW has formulated concluding comments highlighting positive aspects of the state report as well as setting out the Committee's principal areas of concern and its recommendations. However, since the Committee is unable to receive individual petitions or inter-state complaints concerning violations of the rights in the Convention, it has been unable determine when individual violations of the Convention have taken place (Meron 1986) and consequently, is unable to hold states directly accountable for individual violations of their obligations under the Convention. This perhaps explains the fact that states have not approached their obligations under the Women's Convention with the same commitment which has characterised their approach under other human rights instruments (Bunch, 1990).

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The Development of the Optional Protocol to the Women's Convention

Agreement on the appropriate supervisory mechanisms for ensuring compliance with the Women's Convention was difficult to secure during the drafting process of the Convention. Concerns about proliferation and the costs associated with the creation of any new treaty-based body (Galey 1984; Rehof 1993) meant that serious divisions emerged amongst the drafters over the basic issue of whether there was a need for a specialised supervisory body to administer the Convention. Despite the strong, if somewhat belated, representations of the Netherlands to extend the supervisory mechanisms of the Convention to the right of inter-state complaint and individual petition, the issue of the right of individual petition does not seem to have received serious attention during the drafting process (Burrows 1985; Byrnes & Connors 1996; Rehof 1993). Where discussed, the majority of states remained unconvinced of the merits of an individual petition procedure; some taking the view that the subject matter of the Convention was insufficiently serious to merit the right of individual petition, whilst others pointed to the lack of evidence of the efficacy of other individual petition procedures (Byrnes & Connors 1996; Kim 1993). Instead, implementation of the Women's Convention was to be achieved by way of what one Belgian delegate referred to as the 'minalimist solution' of a periodic state reporting system (Tinker, 1981). Reflected in the supervisory mechanisms of the Women's Convention is, as Reanda suggests, 'a deeply held view that the condition of women, embedded as it is in cultural and social tradition, does not lend itself to fact-finding mechanisms and complaints procedures such as those developed in the human rights sphere' (Reanda 1995, p 274).⁽²⁾

It was not until the late 1980s and early 1990s that feminist voices gained a sufficiently strong foothold within the human rights community from which to assert the need for change to the 'androcentric' human rights system. The conceptual challenge to traditional human rights theory posed by the issue of violence helped shape the debate on how women's rights could be realised. In 1991 the Expert Group on Violence Against Women recommended consideration be given to an optional protocol to the Women's Convention (Byrnes & Connors 1996). At the same time the Commission on the Status of Women began to reconsider its own procedures for responding to violations of women's human rights though it did not at that time formally commit itself to developing an optional protocol (Byrnes & Connors 1996). At its 1992 session, and in the context of its consideration of the question of violence, members of the CEDAW began to press for the introduction of an optional protocol to the Convention which would establish a right of individual petition to the Committee. The issue gained momentum following the Vienna World Conference in 1993, which called for new procedures to 'strengthen implementation of the ... human rights of women' (UN Doc. A/CONF. 49/668 of 25 June 1993, paras. 39 - 40). In 1994 an expert group, convened by the Women in the Law Project of the International Human Rights Law Group, meeting in Maastricht, produced a draft optional protocol. The Beijing Platform of Action gave firm endorsement for an optional protocol (para. 230) and at its Fourteenth Session in 1995 the CEDAW broadly adopted the Maastricht draft. In response, the CSW has requested the Secretary-General to issue an invitation to governments, NGOs and intergovernmental groups such as the Council of Europe to submit their comments on the desirability and feasibility of an optional protocol. These were laid before the CSW at its fortieth session in 1996 (E/CN.6/1996/10) and at its subsequent session in March 1997 (E/CN.6/1997/5).

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Why is an Optional Protocol Desirable?

Despite evidence of the under -utilisation of the right of individual petition to treaty-based human rights bodies generally and the mixed record of state compliance therewith (Steiner & Alston 1996), there are a number of reasons why there remains a need for a right of petition to the Women's Convention.

First, there has been a widespread failure at the level of the nation state to guarantee women's human rights (Galey 1984). In this context, the possibility of international scrutiny of states' compliance with their obligations acquires a particular importance. Second, 'mainstream' human rights bodies have consistently neglected women's issues (Charlesworth 1994; Wright 1993). Third, even those procedures which are specifically designed to respond to violations of women's human rights, such as the communication procedure before the CSW, have proved to be ineffective in addressing individual violations of women's human rights (Reanda 1995; Coliver 1989). If the Beijing commitment to ensuring full implementation of women's rights is to develop into more than mere rhetoric, it is imperative that a body of jurisprudence develops which sets the acceptable boundaries of state conduct in respect of women's human rights within a forum for holding states directly accountable for violations of women's human rights.

Finally, a procedure which would breathe life into the provisions of the Women's Convention is particularly important because of the nature of those normative provisions. Eilser (1987) argues that the Convention is significant because 'it address[es] some of the theoretical barriers to a unified, and operationally effective, theory of human rights', asserting as it does the indivisibility of rights. Moreover, unlike other human rights instruments, the Convention does not limits its sphere of operation to the public world, but imposes obligations upon states to respect women's rights to be free from all forms of discrimination, including those occurring in the private sphere (Article 2). In its General Recommendation No. 19 (UN Doc. A/47/38) the CEDAW defined all forms of violence against women, including domestic violence, as a form of discrimination against women. Thus a procedure for determining the extent of state obligations under the Convention promises a development of what is, to date, the limited jurisprudence on state responsibility for human rights abuses by private actors (Shelton 1990).⁽³⁾

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Key Features of the Optional Protocol

For the main part, the proposed optional protocol follows the model of other treaty-based individual complaint procedures. The purpose of this section is to draw attention to some of the key features of the proposed protocol which may have a particular bearing on the ease with which women can realise their rights under the Convention.

(i) Locus Standi

The draft optional protocol proposes that locus standi be granted to 'any individual, group or organisation suffering detriment from a violation of rights in the Convention or claiming to be directly affected by the failure of a State party to comply with its obligations under the Convention or by a person or group having a sufficient interest in the matter.' (Element 7). The generous locus standi provision has aroused the opposition of a number of states (CEDAW/C/1997/5). The formulation of standing is significantly wider than that under the ICCPR and most closely mirrors the approach to standing under the Article 14(1) of the CERD, but goes yet wider than both.⁽⁴⁾ The possibility for group action is particularly welcome given the structural nature of inequality which often escapes resolution by way of individual litigation and may overcome the risks faced by an individual litigant. If ratified by the UK, it might empower groups such as the Equal Opportunities Commission and Rights of Women to exploit the potential of the Convention's provisions.

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(ii) Exhaustion of Domestic Remedies

The lack of clarity surrounding the issue of exhaustion of domestic remedies has produced adverse comment from a number of states. Proposed Element 9(f) of the draft optional protocol provides that a communication shall be inadmissible 'if all domestic remedies [have] not been exhausted, unless the Committee considered that requirement unreasonable.' Two points are worth noting here. First, unlike the procedure under the OP to the ICCPR there is no stipulation that all 'available' remedies be exhausted and secondly, unlike other procedures, there is no stipulation that a communication will be admissible where the 'application of the [domestic] remedies is unreasonably prolonged'. It is unclear whether the intention here is to conform to the practice of other communication procedures, or whether Element 9(f) genuinely intends to introduce a new power to exempt individuals from utilising domestic remedies in those circumstances the Committee consider reasonable. Byrnes and Connors (1996) have argued that the protocol does aim to incorporate the existing jurisprudence of the HRC on exhaustion of domestic remedies which has been described elsewhere as both 'generous to the applicant and fair to the State' (Ghandi 1986). Given the lack of awareness amongst women of legal remedies, exacerbated by low levels of female literacy across the globe (Tomasevski 1993) and the victimisation and harassment suffered by many women seeking to use the law, a flexible approach by the CEDAW to the question of exhaustion of domestic remedies would be welcome.

Secondly, although a minor point, it is worth noting that, in line with the practice of the HRC, there is no time limit for the submission of communications.

(iii) Interim Measures

None of the existing systems for individual complaint expressly provide a power to grant interim measures (although this has been developed by way of the rules of procedure of the HRC, CtERD and Committee Against Torture (CAT). Thus the proposed Element 10 of the optional protocol, which formally grants the Committee the 'right to request that the status quo be preserved, and a State party [to] give an undertaking to that effect, in order to avoid irreparable harm,' is a significant development in enhancing the effectiveness of human rights enforcement procedures and may be particularly useful in the context of cases concerning potentially life-threatening violence against women.

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(iv) Fact-finding Powers

One of the criticisms which has been directed at the HRC concerns its lack of fact-finding powers (Schmidt, 1992). In considering a communication, the HRC is bound to consider only such information which has been submitted by the parties. According to Schmidt this may have resulted in incomplete decisions in law or in fact by the HRC. The proposed optional protocol would empower the CEDAW to consider communications having regard to information from the parties 'or other relevant sources.' This would facilitate the use of amicus briefs before the Committee in the context of individual complaints concerning widespread and systematic violations of women's human rights such as that exemplified by gender-based violence. Provision is also made for the Committee, whilst examining a communication, to visit the territory of the State party concerned with that state's consent. (Element 12) Both these proposals have met with considerable disquiet amongst State parties (E/CN.6/1996/10 and E/CN.6/1997/5). They would, however, go some way to overcome the problems associated with the written nature of proceedings which is envisaged by Element 8 and if adopted, would considerably extend the scope of existing human rights procedures for monitoring state compliance with human rights norms.

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(v) Remedies and Follow-Up

Element 13 of the proposed optional protocol authorises the Committee 'to recommend remedial measures or measures designed to give effect to obligations under the Convention.' It also expressly provides for adequate reparation where appropriate and requires the State parties to furnish the Committee with details of the remedial measures taken to implement the Committee's recommendations within a set period. This extends the Committee's mandate beyond that formally available to the HRC under the First Optional Protocol. However, like the Optional Protocol to the ICCPR, it does not, however, unfortunately formally require State parties to comply with the Committee's final views.

Provision is made for the follow-up of the Committee's recommendations by way of the Article 18 reporting procedure (Element 14). This mirrors the practice of the HRC from 1990 whereby states are obliged to indicate the measures they have taken to implement the view of the HRC in their periodic report to the Committee. Additionally, in 1992 the HRC appointed a Special Rapporteur for the Follow-Up of Views which has improved the overall effectiveness of the procedure and sets a useful precedent for the consideration of the CEDAW (Nowak 1995).

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(vi) Inquiry Procedure

In addition to the many ways outlined above in which the proposed optional protocol seeks to extend the working methods of the treaty-based human rights bodies, one element of the proposed optional protocol in particular stands out. As well as receiving individual cases, the protocol provides for an inquiry procedure in circumstances where the Committee receives 'reliable information indicating a serious or systematic violation by a State party of rights under the Convention or a failure to give effect to its Convention obligations' (Element 17). Of the treaty-based organs, only the Committee Against Torture (CAT) has a similar power of inquiry in the face of reported systematic human rights violations (Article 20 CAT). In line with the procedure under the CAT, an inquiry would be conducted with the co-operation of the State party concerned and may include a visit to State territory. The proposed inquiry procedure is confidential, but the Committee is empowered to continue its discussions with a State party 'until a satisfactory outcome [is] achieved' and provision is made for the Committee to publish a report of its inquiry which mirrors the current practice of the CAT. Moreover, the Article 18 reporting procedure is to be used to monitor compliance which should ensure the Committee's findings are not 'buried' by the state party.

The inquiry procedure has the potential to make a particularly significant contribution towards realising women's human rights. As mentioned above, the CSW has not made substantial use of its communications procedure. The Working Group to the Commission on Communications is currently examining ways in which the procedure can be improved (E/CN.6/1997/4, para. 116). Supplementing this procedure with a similar right of inquiry by the CEDAW may well serve to stimulate greater use of the communication procedure generally. Moreover, as a supplement to the individual complaints procedure, the inquiry procedure has a number of other advantages. Firstly, it has the potential to enhance collaboration between the Committee and NGOs by enabling non-governmental organisations to inform the work of the Committee by highlighting systematic human rights violations. Secondly, an inquiry procedure permits the Committee to address a wider range of issues, including single-issues, than is possible under the individual complaints procedure and this is particularly useful in the context of addressing the structural issues which maintain women's inequality (see particularly the submissions of the Austrian government in E.CN.6/1997/5 at para. 197).

A number of serious objections to the proposed OP have been lodged by state parties and so a low ratification rate of the OP may initially be anticipated.⁽⁵⁾ This does not, however, detract from the pressing need for the adoption of the draft protocol. By bringing the CEDAW broadly into line with, or significantly in advance of, other treaty-based bodies, the international community can underscore the seriousness with which it now responds to women's issues and sends out a clear signal that the commitment at Vienna and Beijing to improve the effectiveness of human rights enforcement mechanisms has substance. The ability to give authoritative interpretations to the Women's Convention through the medium of the individual complaints procedure can be expected to enhance publicity and awareness of the work of the CEDAW and of women's human rights generally. If the proposed procedures are to be effective, however, it is imperative that a serious commitment is made to improve the level of funding of the CEDAW in order to enable it to increase the time available for its work. This has been recognised in the draft protocol. Element 26 insists that at least three weeks per annum and resources, including expert legal advice, be available to the Committee to enable it to conduct its work.

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Conclusion

Ultimately, it is not enough to leave the implementation of women's human rights to the CEDAW. Mainstream bodies must also be forced to integrate women's issues into their work and this will in turn require action to improve the gender composition of these bodies (Gallagher 1997; Charlesworth 1994). However, the proposed protocol would help end the lip-service paid by too many states to women's issues. It could be expected to vitalise the rights in the Convention by giving a voice to those 'with the sharpest perspective' on what constitutes abuses of women's human rights (Mertus & Goldberg 1994, p 217) and, by fostering a sense of ownership of the Women's Convention, international procedures which affirm of the legitimacy of women's demands can begin to effect change at the national level.

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Bibliography

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1. The 'mainstream' is generally taken to refer to those treaty-based and investigative human rights bodies which operate under the auspices of the Geneva-based Centre for Human Rights and the Office of the High Commissioner of Human Rights, see Gallagher (1997) and Byrnes (1992). From 15 September 1997, the Centre for Human Rights and the Office of the High Commissioner have been consolidated into a single Office of the High Commissioner for Human Rights. Back to text.

2. It is worth noting that the Committee on Economic, Social and Cultural Rights which monitors compliance with the International Covenant on Economic, Social and Cultural Rights has also been unable to receive individual petitions (ICESC). The Committee is currently pressing for the adoption of an optional protocol to the ICESC which would create a right of individual petition. See Tomasevski (1995) and Nowak (1995). Back to text.

3. The Maastricht draft optional protocol is set out in Byrnes & Connors (1996). The draft upon which has CSW has been receiving comments can be found in UN Doc. E/CN.6/1997/5. Here, the relevant provisions of the draft protocol are referred to as 'Element 5, 6, 7 etc.' and this approach is adopted in this paper. Back to text.

4. Under the OP to the ICCPR (Art. 1 & 2) only individuals can submit a communication to the HRC. The HRC has been cautious in its approach to standing, granting standing to submit a communication to the family of victims where the victim is unable to do so (Massera v Uruguay Comm. No. R.1/5; Mbenge v Zaire Comm. No.16/1977), but has refusing standing to NGOs to take a group-action or submit communications on behalf of individuals (U.R. v Uruguay Comm. No. 128/82). For a discussion of locus standi under the OP to the ICCPR see McGoldrick (1991) Back to text.

5. A low ratification of provisions for individual complaint is common to other treaty-based bodies. Figures as of 1 September 1996 are as follows: ICCPR: 135; OP: 89; CERD: 148; Article 14: 23: CAT: 99; Article 22: 36. The views of the UK government are set out in E/CN.6/1996/10/Add.2. Since these comments were prepared, the new government has committed itself to reviewing its approach to the right of individual petition under the ICCPR and other UN human rights treaties (Lord Irvine of Lairg, Keynote Address to the Conference on a Bill of Rights for the United Kingdom, 4 July 1997). See also address of the Foreign Secretary Human Rights into the Twentieth First Century, http://www.fco.gov.uk/texts/1997/jul/17/hrspeech.txt  Back to text.