Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women

The Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (OP-CEDAW) is an international treaty

Treaty

A treaty is an express agreement under international law entered into by actors in international law, namely sovereign states and international organizations. A treaty may also be known as an agreement, protocol, covenant, convention or exchange of letters, among other terms...

which establishes complaint and inquiry mechanisms for the Convention on the Elimination of All Forms of Discrimination Against Women

Convention on the Elimination of All Forms of Discrimination Against Women

The Convention on the Elimination of all Forms of Discrimination against Women is an international convention adopted in 1979 by the United Nations General Assembly....

(CEDAW). Parties to the Protocol allow the Committee on the Elimination of Discrimination against Women to hear complaints from individuals or inquire into "grave or systematic violations" of the Convention. The Protocol has led to a number of decisions against member states on issues such as domestic violence

Domestic violence

Domestic violence, also known as domestic abuse, spousal abuse, battering, family violence, and intimate partner violence , is broadly defined as a pattern of abusive behaviors by one or both partners in an intimate relationship such as marriage, dating, family, or cohabitation...

, parental leave

Parental leave

Parental leave is an employee benefit that provides paid or unpaid time off work to care for a child or make arrangements for the child's welfare. Often, the term parental leave includes maternity, paternity, and adoption leave...

and forced sterilization, as well as an investigation into the systematic killing of women

Female homicides in Ciudad Juárez

The phenomenon of the female homicides in Ciudad Juárez, called in Spanish the feminicidios and las muertas de Juárez , involves the violent deaths of hundreds of women since 1993 in the northern Mexican city of Ciudad Juárez, Chihuahua, a border city across the Rio Grande from the U.S. city of El...

in the Mexican

Mexico

The United Mexican States , commonly known as Mexico , is a federal constitutional republic in North America. It is bordered on the north by the United States; on the south and west by the Pacific Ocean; on the southeast by Guatemala, Belize, and the Caribbean Sea; and on the east by the Gulf of...

city of Ciudad Juárez, Chihuahua

Ciudad Juárez

Ciudad Juárez , officially known today as Heroica Ciudad Juárez, but abbreviated Juárez and formerly known as El Paso del Norte, is a city and seat of the municipality of Juárez in the Mexican state of Chihuahua. Juárez's estimated population is 1.5 million people. The city lies on the Rio Grande...

.

The Protocol was adopted by the United Nations General Assembly

United Nations General Assembly

For two articles dealing with membership in the General Assembly, see:* General Assembly members* General Assembly observersThe United Nations General Assembly is one of the five principal organs of the United Nations and the only one in which all member nations have equal representation...

on 6 October 1999, and in force from 22 December 2000.
As of December 2009 the Protocol had 79 signatories

Signature

A signature is a handwritten depiction of someone's name, nickname, or even a simple "X" that a person writes on documents as a proof of identity and intent. The writer of a signature is a signatory. Similar to a handwritten signature, a signature work describes the work as readily identifying...

and 99 parties

Ratification

Ratification is a principal's approval of an act of its agent where the agent lacked authority to legally bind the principal. The term applies to private contract law, international treaties, and constitutionals in federations such as the United States and Canada.- Private law :In contract law, the...

Genesis

In 1979 the United Nations General Assembly

United Nations General Assembly

adopted the Convention on the Elimination of All Forms of Discrimination Against Women

Convention on the Elimination of All Forms of Discrimination Against Women

The Convention on the Elimination of all Forms of Discrimination against Women is an international convention adopted in 1979 by the United Nations General Assembly....

(CEDAW). The Convention outlawed discrimination

Discrimination

Discrimination is the prejudicial treatment of an individual based on their membership in a certain group or category. It involves the actual behaviors towards groups such as excluding or restricting members of one group from opportunities that are available to another group. The term began to be...

against women, but did not include any mechanism by which this prohibition could be legally enforced.

An individual complaints mechanism was suggested during the original drafting of CEDAW, but was rejected at the time. Fifteen years later, the Vienna Declaration and Programme of Action

Vienna Declaration and Programme of Action

The Vienna Declaration and Programme of Action, also known as VDPA, is a human rights declaration adopted by consensus at the World Conference on Human Rights on 25 June 1993 in Vienna, Austria...

of the 1993 World Conference on Human Rights

World Conference on Human Rights

The World Conference on Human Rights was held by the United Nations in Vienna, Austria, on 14 to 25 June 1993. It was the first human rights conference held since the end of the Cold War...

suggested that new procedures were needed to implement the Convention, and suggested a "right of petition". An independent expert group produced a draft in 1994, containing a complaint procedure and an inquiry procedure, and this was adopted for further study by the Committee on the Elimination of Discrimination against Women in early 1995. The idea of an Optional Protocol was further endorsed by the Fourth World Conference on Women

Fourth World Conference on Women

The United Nations convened the Fourth World Conference on Women: Action for Equality, Development and Peace on 4-15 September 1995 in Beijing, China. 189 governments and more than 5,000 representatives from 2,100 non-governmental organizations participated in the Conference...

in 1995, which called for "the elaboration (of) a draft optional protocol to the Women's Convention that could enter into force as soon as possible."

In March 1996 the Commission on the Status of Women

United Nations Commission on the Status of Women

The Commission on the Status of Women is a functional commission of the United Nations Economic and Social Council , one of the main UN organs within the United Nations.Every year, representatives of Member States gather at United Nations Headquarters in New York to evaluate progress on gender...

established an open-ended working group to produce a formal draft. This reported back after three years of deliberation in early 1999. The Optional Protocol was finally adopted by the UN General Assembly on 6 October 1999.

Summary

The Convention on the Elimination of All Forms of Discrimination against Women outlaws discrimination on the basis of gender, and obligies its parties to repeal discriminatory laws and guarantee equality in the fields of health, employment, and education. The Optional Protocol is a subsidiary agreement to the Convention. It does not establish any new rights, but rather allows the rights guaranteed in the Convention to be enforced.

Articles 1 - 7 create an individual complaints mechanism similar to those of the First Optional Protocol to the International Covenant on Civil and Political Rights

First Optional Protocol to the International Covenant on Civil and Political Rights

The First Optional Protocol to the International Covenant on Civil and Political Rights is an international treaty establishing an individual complaint mechanism for the International Covenant on Civil and Political Rights . It was adopted by the UN General Assembly on 16 December 1966, and entered...

, Optional Protocol to the Convention on the Rights of Persons with Disabilities

Optional Protocol to the Convention on the Rights of Persons with Disabilities

The Optional Protocol to the Convention on the Rights of Persons with Disabilities is a side-agreement to the Convention on the Rights of Persons with Disabilities. It was adopted on 13 December 2006, and entered into force at the same time as its parent Convention on 3 May 2008...

and Article 14 of the Convention on the Elimination of All Forms of Racial Discrimination

Convention on the Elimination of All Forms of Racial Discrimination

The International Convention on the Elimination of All Forms of Racial Discrimination is a United Nations convention. A second-generation human rights instrument, the Convention commits its members to the elimination of racial discrimination and the promotion of understanding among all races...

. Parties agree to recognise the competence of the Committee on the Elimination of Discrimination against Women to consider complaints "by or on behalf of" individuals or groups who claim their rights under the Convention have been violated. If a complaint is submitted on behalf of a victim, then this requires their consent, unless the submitter can justify acting without it. What constitutes "justification" in such a case is up to the Committee. The ability for complaints to be submitted on behalf of victims is seen as vital in allowing NGOs such as women's organizations and human rights groups to use the Protocol to enforce the Convention.

Complainants must have exhausted all domestic remedies, and anonymous complaints and complaints referring to events which occurred before the country concerned joined the Optional Protocol are not permitted. The Committee can request information from and make recommendations to a party, though these are not binding.

Articles 8 - 10 create an inquiry mechanism. Parties may permit the Committee to investigate, report on and make recommendations on "grave or systematic violations" of the Convention. The Committee may invite the relevant party to respond and inform it of any measures taken as a result of such an inquiry, either directly or through the normal reporting process under the Convention. Parties may opt out of this obligation on signature or ratification, but only Bangladesh, Belize and Colombia have done so.

Article 11 requires parties to ensure that those complaining under the Optional Protocol are not subjected to ill-treatment or intimidation.

Article 13 requires parties to inform their citizens about the Convention, the Optional Protocol, and the rulings of the Committee, so as to facilitate complaints.

Articles 12 and 14 govern the procedure and reporting of the Committee in handling complaints.

Articles 15 - 21 govern ratification, entry into force, and amendment of the Optional Protocol.

Reservations and membership

A number of parties have made reservations

Reservation (law)

A reservation in international law is a caveat to a state's acceptance of a treaty. By the 1969 Vienna Convention on the Law of Treaties , a reservation is defined as a...

and interpretative declarations to their application of the Protocol. Bangladesh

Bangladesh

Bangladesh , officially the People's Republic of Bangladesh is a sovereign state located in South Asia. It is bordered by India on all sides except for a small border with Burma to the far southeast and by the Bay of Bengal to the south...

, Belize

Belize

Belize is a constitutional monarchy and the northernmost country in Central America. Belize has a diverse society, comprising many cultures and languages. Even though Kriol and Spanish are spoken among the population, Belize is the only country in Central America where English is the official...

and Colombia

Colombia

Colombia, officially the Republic of Colombia , is a unitary constitutional republic comprising thirty-two departments. The country is located in northwestern South America, bordered to the east by Venezuela and Brazil; to the south by Ecuador and Peru; to the north by the Caribbean Sea; to the...

have exercised their right under Article 10 of the Protocol not to recognise the jurisdiction of the Committee to investigate "grave or systematic violations" of the Convention. Colombia declares that neither the Protocol nor the Committee can require it to decriminalise "offences against life or personal integrity".

Not every state which is a party to CEDAW is a party to the Protocol, and several major states still remain outside the Protocol. The United States of America has not became a signatory because it has not yet ratified CEDAW. Japan

Japan

Japan is an island nation in East Asia. Located in the Pacific Ocean, it lies to the east of the Sea of Japan, China, North Korea, South Korea and Russia, stretching from the Sea of Okhotsk in the north to the East China Sea and Taiwan in the south...

does not participate in any of the individual communications mechanisms for human rights treaties, but is currently considering joining while observing how these procedures are functioning. The People's Republic of China

People's Republic of China

China , officially the People's Republic of China , is the most populous country in the world, with over 1.3 billion citizens. Located in East Asia, the country covers approximately 9.6 million square kilometres...

is currently "studying the problem of accession to
the Optional Protocol".

Individual Complaints

The Committee on the Elimination of Discrimination against Women has considered eleven complaints against seven countries since the Optional Protocol came into force, on subjects such as domestic violence

Domestic violence

, division of property

Division of property

Division of property, also known as equitable distribution, is a judicial division of property rights and obligations between spouses during divorce...

, forced sterilization and parental leave

Parental leave

. Six complaints were rejected for lack of jurisdiction or because the complainants had not exhausted all domestic remedies. The other five decisions are summarised below:

In 2005, in the case of A.T. v. Hungary, the Committee ruled that Hungary

Hungary

Hungary , officially the Republic of Hungary , is a landlocked country in Central Europe. It is situated in the Carpathian Basin and is bordered by Slovakia to the north, Ukraine and Romania to the east, Serbia and Croatia to the south, Slovenia to the southwest and Austria to the west. The...

had violated numerous articles of the Convention by failing to adequately protect women against domestic violence

Domestic violence

. It recommended that the complainant be immediately protected from her abusive former partner, and that Hungary improve its handling of domestic violence cases and immediately adopt the Committee's previous recommendation for a law allowing protection and exclusion orders. The recommendations were implemented by the time of Hungary's sixth periodic report to the Committee in 2006.

In 2006, in the case of Dung Thi Thuy Nguyen v. The Netherlands, the Committee expressed concerns about aspects of parental leave

Parental leave

provisions in The Netherlands. It recommended the Dutch government collect further information on the number of women combining part-time salaried employment with self-employment, and review the law if this revealed that a significant number of women were disadvantaged.

In 2006, in the case of A.S. vs Hungary, the Committee ruled that the forced sterilization of a Roma woman in Hungary violated the Convention. It recommended compensating the complainant for the breach of her rights, a full review of legislation surrounding informed consent

Informed consent

Informed consent is a phrase often used in law to indicate that the consent a person gives meets certain minimum standards. As a literal matter, in the absence of fraud, it is redundant. An informed consent can be said to have been given based upon a clear appreciation and understanding of the...

in cases of sterilisation to ensure it complied with international human rights standards, and ongoing monitoring of Hungarian medical facilities to ensure that any changes were put into practice.

In 2007, in the cases of Şahide Goekce (deceased) v. Austria and Fatma Yildirim (deceased) v. Austria, the Committee ruled that the Austrian government was failing to protect women from domestic violence. It recommended strengthening the implementation and monitoring of existing domestic violence laws and greater training for police.

Inquiries

The Committee has also conducted one inquiry into "grave or systematic violations" under Article 8, in relation to the systematic killing of women

Female homicides in Ciudad Juárez

in the Mexican

Mexico

city of Ciudad Juárez, Chihuahua

Ciudad Juárez

. This found "serious lapses in compliance" by the Mexican government and tolerance of severe and systematic abuses of women's rights. The Committee recommended the involvement of federal as well as state authorities in the investigation of the murders, the punishment of negligent or complicit officials and those involved in the persecution of victims' relatives, and increased violence prevention plans.

Impact and criticism

The impact of an international treaty can be measured in two ways: by its acceptance, and by its implementation. On the first measure, the Optional Protocol has gained widespread international acceptance. Most major states are parties, and the Protocol is the second most-accepted enforcement mechanism after the First Optional Protocol to the International Covenant on Civil and Political Rights

First Optional Protocol to the International Covenant on Civil and Political Rights

.

On the second measure, the number of complaints dealt with by the Committee has been limited. A 2008 assessment for the UK government found that the Protocol had hardly been used by NGOs as originally expected, that the reasoning of the Committee was unpredictable, and that it had not had an impact on policy-making. It found that there had been some limited success in highlighting the importance of effective policies to protect women from domestic violence and forced sterilization, but that outside these areas, the Protocol "has not led to a breakthrough in advancing women’s rights." It concludes that unless greater efforts are made to highlight awareness of the Optional Protocol and build trust in the rulings of the Committee, the complaints mechanism will remain under-utilized.

The Protocol has been criticised by legal academics such as Bal Sokhi-Bulley and feminists such as Catharine MacKinnon

Catharine MacKinnon

Catharine Alice MacKinnon is an American feminist, scholar, lawyer, teacher and activist.- Biography :MacKinnon was born in Minnesota. Her mother is Elizabeth Valentine Davis; her father, George E. MacKinnon was a lawyer, congressman , and judge on the U.S. Court of Appeals for the D.C. Circuit...

who view the complaints mechanism as difficult, lengthy, and lacking transparency. The voluntary nature of the Protocol and the non-binding nature of its "recommendations" are seen as key limits on its effectiveness. Despite this, these critics tend to view the Protocol as a valuable, if flawed, instrument for realizing women's rights.

External links

List of parties
Committee on the Elimination of Discrimination against Women
Decisions made under the Optional Protocol

The source of this article is wikipedia, the free encyclopedia. The text of this article is licensed under the GFDL.

Genesis

Summary

Reservations and membership

Individual Complaints

Inquiries

Impact and criticism

See also

External links