This section explains the Optional Protocol to CEDAW and the two mechanisms, the Communications and Inquiry procedures.
The Optional Protocol (OP-CEDAW)
The Optional Protocol is an additional human rights treaty that complements CEDAW. It creates new compliance mechanisms through which individual cases of women’s rights violations by the state can be taken up, or an inquiry into grave and systemic violations can be instituted by the Committee. These provisions are available for the state parties that have ratified CEDAW and the OP-CEDAW can employ these provisions.
The OP-CEDAW allows the state party and its civil society to avail of the CEDAW Committee’s involvement beyond the periodic country review, thus enhancing compliance with CEDAW. It involves the Committee in the investigation of individual complaints and grave violations, thus enabling it to give its views and recommendations on addressing systemic and structural conditions underlying such violations. This allows the Committee to highlight the need for more effective remedies at the national level.
The communications procedure is a mechanism through which an individual or a group of individuals from within the jurisdiction of a state party to the CEDAW Convention and the OP-CEDAW can bring an alleged violation of the CEDAW Convention to the attention of the CEDAW Committee.
The communications procedure is a mechanism designed for use by an individual or a group of individuals seeking redress for a specific violation(s) resulting from an act or omission by a state party. By ratifying or acceding to the OP-CEDAW, a state acknowledges the competence of the CEDAW Committee to provide views and recommendations regarding written communications alleging violations of rights set out in the CEDAW Convention.
The communications procedure offers the individual an opportunity to access and claim rights guaranteed at the international level, which have not been implemented or are not enforceable domestically. The communications procedure differs from the other CEDAW procedures (such as the consideration of the reports of state parties and even the inquiry procedure) in that, rather than addressing the overall advancement of women within a country, it applies to particular violations of individual rights. In this way, it reflects the similar communications procedures of the Convention against Torture (CAT), the International Covenant on Civil and Political Rights (ICCPR), and the Convention on the Elimination of Racial Discrimination (CERD). The communications procedure is established in Articles 1–7 of the OP-CEDAW. The proceedings for the consideration of communications can be found in Section XVI of the Rules of Procedure [Rules 56 to 75].
The Communications Procedure
- Provides an opportunity for specific redress in individual cases when a state violates women’s human rights;
- Provides the possibility of international redress for women who have been denied access to justice at the national level;
- Allows the CEDAW Committee to highlight the need for more effective remedies at the national level;
- Allows the CEDAW Committee to develop a new body of jurisprudence on guaranteeing women’s human rights;
- Assists States parties in determining the content of their obligations under the CEDAW Convention and thus assists them in meeting those obligations.
The Communication Chart
The Inquiry Procedure is a mechanism set up under the Optional Protocol to the CEDAW Convention (OP-CEDAW) through which the CEDAW Committee can issue comments and recommendations on grave or systematic violations of rights in the CEDAW Convention. Alternatively, the CEDAW Committee may decide to initiate an inquiry that addresses grave and systematic violations resulting from the action or inaction of the state party concerned. The Inquiry Procedure is a mechanism that enables the CEDAW Committee to initiate and conduct investigations on large-scale and/or widespread violations of women’s rights occurring within the jurisdiction of a state party.
- Grave violations would constitute severe abuses, for example, discrimination against women linked to violations of their rights to life, physical and mental integrity, and security of person. A single violation can be grave in nature and a single act can violate more than one right. The CEDAW Committee may determine that an inquiry into a single grave violation is appropriate on the basis of the facts of a particular situation (for example, 200 single mothers and their children being forcibly evicted from a public housing building).
- The term ‘systematic’ refers to the scale or prevalence of violations, or to the existence of a scheme or policy directing violations. Therefore, violations not rising to the level of severity implied by the term ‘grave’ may still be the focus of inquiry if a pattern is found to exist, or if abuses are committed pursuant to a scheme or policy. Violations may be systematic in character without being the result of the direct intention of the state party (for example, a government policy promoting population control in rural areas may have resulted in the sterilization of a large group of indigenous women without due consent or information sharing).
The Inquiry Procedure will permit the CEDAW Committee to respond in a more timely way to serious violations that are taking place under the jurisdiction of a state party (for example, the mass rape of women during riots or the disappearance and assassination of women’s rights defenders). It offers a means of addressing situations in which individual communications do not adequately reflect the systematic nature of widespread violations of women’s rights or those of individuals or groups that are unable to submit communications due to practical constraints or because of the fear of reprisals.
In accordance with Article 10 of the OP-CEDAW, states may ‘opt out’ of the Inquiry Procedure at the time of signature, accession, or ratification.
The Inquiry Procedure is set forth in Articles 8 and 9 of the OP-CEDAW. The proceedings under the Inquiry Procedure of the OP-CEDAW can be found in Section XVII of the Rules of Procedure (Rules 76 to 91).
The Inquiry Procedure
- Enables the CEDAW Committee to address systematic and widespread violations;
- Allows the CEDAW Committee to recommend measures to combat the structural causes of discrimination against women; and
- Provides the CEDAW Committee with an opportunity to set out a broad range of recommendations to achieve equality between women and men.
The Inquiry Chart