It is worth probing why only 104 of the 186 state parties to CEDAW have ratified the Optional Protocol (OP-CEDAW). What holds state parties committed to implementing the substantive obligations of CEDAW back from embracing additional mechanisms of redress that advance women’s equality? The communications procedure for individual complaints to CEDAW, and the inquiry mechanism that allows the Committee to respond to grave and systematic violations of rights under CEDAW can only be a step forward for a state party committed to fighting discrimination and implementing equality for women. Yet, there seems hesitation, misgivings and misconceptions about what the ratification of the OP-CEDAW entails and what can be gained therefrom. Here is a look at common misconceptions with an accompanying clarification for each.
Myth I: The OP is premised on the assumption that the domestic redress system is deficient for delivering justice to women.
Clarification: A robust domestic judicial and rights-monitoring system should not preclude a state party from taking advantage of additional helpful oversight mechanisms. The existence of appeal options within domestic court systems shows that judicial perspectives, interpretation and reasoning are variable and evolving. The domestic judicial hierarchy also allows the complainant to move higher if unsatisfied with the judicial outcome, and a reversal of judgment is also common. In much the same way, the OP is an additional forum for grave matters that embody issues of wider import.
Myth II: The OP expands the substantive obligations of the state beyond the scope of CEDAW, imposing additional obligations for the protection of women’s rights.
Clarification: The substantive scope of obligations to state parties to the OP remains confined to those outlined in CEDAW. The OP does not touch upon substantive rights at all – rather it provides additional mechanisms of redress to women through the communications and the inquiry procedures.
Myth III: If the substantive scope of rights is the same as that prescribed by CEDAW, and a country’s domestic laws provide for individual redress, the OP does not offer any additional substantive value.
Clarification: India’s response to the recommendation that it ratify OP-CEDAW in its first Universal Periodic Review illustrates this perception. India stated in response: ‘[t]here exists…effective legal and constitutional framework to address individual cases of violations within India.’ Indeed, in India the national constitution provides for direct access to the Supreme Court and High Courts to redress violations of women’s equality and remedy discrimination. In addition, several other statutory mechanisms to address human rights violations exist, including the National Human Rights Commissions and the State Human Rights Commissions, as well as dedicated women’s machineries at the national and state level. However, gender-related issues are a particularly specialized area, and the opportunity for 22 experts in the field to weigh in on a case/ issue, even if that issue has already been considered domestically, seems an excellent one. It is hard to see how this would be ‘unnecessary’ contribution to the law of any state party.
Furthermore, in addition to offering specialized additional oversight, the inquiry mechanism under OP-CEDAW can also assist states to identify a pattern of discrimination caused by systemic failure that might not become apparent through individual court cases. For example, in the inquiry in relation to Mexico (2005) relating to the systemic pattern of abduction, rape and murder of women in Ciudad Juárez, the Committee found that the murders investigated were not “instances of sporadic violence against women, but rather … systematic violations of women’s rights, founded in a culture of violence and discrimination that is based on women’s alleged inferiority, a situation that has resulted in impunity.” The OP-CEDAW process thus enabled Mexico to identify a pattern of systematic violence that was not been identified by its domestic legal system, and was the catalyst for a number of positive initiatives aimed at eliminating discrimination against women. It needs to be emphasized that the OP is a remedy available where justice remains wanting despite exhaustion of all domestic remedies, and not prematurely or in substitution of domestic remedies.
Myth IV: The OP imposes an additional burden on the state.
Clarification: It is true that monitoring cases filed under OP-CEDAW would add some extra administrative burden to the State. However, whilst the realization of justice is always going to require some administrative efforts on the part of the State, ultimately the OP offers a way to reduce that burden by quickly identifying problems with the State’s current approach to gender justice issues, which can then be swiftly rectified. The OP allows CEDAW to assist the state parties in identifying implementation gaps and working to improve implementation of their laws. The case of Şahide Goecke vs Austria, Communication No. 5/2005, highlighted how the state failure to take domestic violence law seriously can cost the woman her life. Here the Public Prosecutor repeatedly refused to detain a woman’s husband despite evidence of a pattern of domestic abuse and several protection orders. The woman was subsequently shot dead by her husband. The Committee found that, despite the presence of gender-sensitive laws in Austria, the right of an alleged perpetrator to fundamental freedoms such as mobility had been given priority over a woman’s right to life and physical and mental integrity. The Committee recommended several ways of redressing the balance, including better training for police on domestic violence issues.
TAGS: CEDAW Review, UPR, VAW
