Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women
Submission by Susan Halliday, Sex Discrimination Commissioner to the Department of the Prime Minister and Cabinet
Thank you for the opportunity to make a submission as part of the Government's ongoing public consultation on matters relating to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)
The following comments relate primarily to the ongoing negotiations for an Optional Protocol to CEDAW (the Optional Protocol). However, the Australian Government's reservations to CEDAW also deserve comment.
1. Reservations to CEDAW
The progress made by the Australian Government in working towards to eventual elimination of reservations to CEDAW is pleasing. The elimination of reservations to CEDAW is fundamental to bringing about the ultimate realisation and implementation of the principal of the equality of women in Australian society.
The proposed amendment in the language of the reservation relating to women in combat is supported and the eventual removal of the reservation is encouraged.
In relation to Australia's other reservation to CEDAW, issues of work and family are high on the agenda of the Sex Discrimination Unit and will be the subject of our work throughout 1999 and 2000. I would like to restrict my comments at this stage but would urge the Government to work towards the removal of the reservation.
2. The Optional Protocol
As the principal document enunciating women's rights, CEDAW is an important document for half of the world's population and over half of Australia's population. For these rights to be properly realised, significant changes to social, legal, economic, political and cultural structures are required throughout the world. These changes will improve women's lives and opportunities whilst benefitting men by bringing about more equitable and fair societies.
The importance and significance of CEDAW, however, is not at this stage matched by its implementation strength. Human Rights are only as effective as their ability to be implemented. The Convention endures a significant number of reservations and the CEDAW Committee has limited powers to promote the implementation of the Convention. Unable to pronounce a State Party in violation of CEDAW, nor order a remedy for violation, the Committee is limited to consideration of regular reports by State Parties, which are often late and substantially inadequate.
The fundamental importance of the rights in CEDAW verifies of the need for an Optional Protocol. Moreover, the lack of implementation of women's rights in many parts of the world necessitates that the Optional Protocol be an instrument that is:
- strong,
- easily accessible to women,
- easily understood, and
- positioned to provide enforcement strategies that are timely and effective.
It is crucial that the Optional Protocol is at least as effective as the inquiry procedures under other Conventions, particularly Article 20 of the Convention on Torture and Other Cruel Inhuman or Degrading Treatment or Punishment and the First Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR). An Optional Protocol with any less strength and effectiveness reflects a limited international commitment to women.
It is of historical importance that the Australian Government was instrumental in the formation and acceptance of CEDAW. The Optional Protocol will also be of historical significance. Its negotiation process provides a valuable opportunity for the Australian Government to again demonstrate its commitment to CEDAW by shaping an instrument that will assist in improving the lives and opportunities of women all over the world.
It is on the basis of these principles that this submission in relation to the individual articles of the current draft Optional Protocol has been made.
2.1 Article
2 - Standing
The extent of standing granted under the Optional Protocol will
have a significant impact on its accessibility and effectiveness. A wide
combination of potential complainants will help ensure that women will
not be excluded due to illiteracy, lack of resources or disempowerment
within their society. This is particularly important for women in countries
where oppressive legal or cultural circumstances prevent women from developing
the skills or accessing the resources required to make a complaint. Further,
very young women, women with disabilities or women in prison may also
require assistance.
Non-government representatives have a role to play in the preparation of quality submissions to the inquiry committee. They are also positioned to provide expertise and specialised information that enables thorough and informed debate and decision making.
There is precedent for the inclusion on non-government organisations in Article 2, namely Article 25 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 44 of the American Convention on Human Rights and the African Charter on Human and People's Rights. Although the First Optional Protocol to the ICCPR only speaks explicitly of individual complaints, in practice the Human Rights Committee has allowed individuals to file claims on behalf of known individuals when these claims reflect the violations and rights common to all individuals within the group.
A balanced outcome would be most likely if Article 2 were phrased to allow communications from:
- individuals,
- an individual or organisation acting on behalf of or representing an individual or organisation,
- groups of individuals, and
- organisations,
which are subject to the jurisdiction of a State Party.
2.2 Article
4 - Admissibility
It is important that the admissibility criteria in Article 4 be
consistent with other international instruments. Additional phrases, especially
those with uncertain interpretation under international law, could unnecessarily
restrict or limit access to the Optional Protocol when it is most needed.
While by all international standards, Australia has efficient and effective mechanisms and remedies, including those available under the Sex Discrimination Act 1984, such mechanisms and remedies are unavailable in some other nations. This article is important for such nations, for example, those that deny women access to legal remedies unless they have the permission and representation of their husbands, or alternatively, where legal systems allow for unlimited detention before trial. Article 4.1 could serve women well by being phrased in the following way.
"The Committee shall not consider a communication unless it has ascertained that all available domestic remedies have been exhausted unless the application of such remedies is unreasonably prolonged or unlikely to bring effective relief."
Reference in this article to the requirement that domestic remedies be exhausted unless the remedies are unreasonable or ineffective, should be retained as it does not appear that the inclusion of this phrase would allow an Australian complainant to circumvent the remedies in Australia.
Further, Article 4.2 would be aided by:
- retaining the phrase "in the view of the Committee" on the basis that it reflects the fact that it is the Committee, acting under the authority of CEDAW, that has the power to determine admissibility and not State Parties;
- deleting the phrase "it is manifestly ill-founded or not sufficiently substantiated" in Article 4.2(iii); this phrase is not used in any other international conventions of this kind and its precise definition is uncertain and highly subjective;
- deleting the phrase in proposed Article 4.2(iv) "vexatious or otherwise an abuse of the right to submit a communication" as it is too uncertain in its meaning and unnecessary.
In the past, subjective and uncertain language has resulted in unclear definitions and misinterpretations. Such language is particularly inappropriate in an international document where it can be misused to pursue political goals removed from the spirit of CEDAW.
The most appropriate place for guidelines of admissibility is in rules of procedure that the Committee will use in conducting its inquiries. Such rules should reflect the rules currently used by the Human Rights Committee and the International Court of Justice.
2.3 Article
5(1) - Interim Measures
Inclusion of the word "urgent" in this article would reflect
the fact that interim measures are generally required in situations of
need or danger. It also enhances the strength and vitality of the Optional
Protocol. Any concern about the definition of 'urgent' could be handled
by negotiating a time period for inclusion in Article 5.
2.4 Article
6(1) - Confidentiality
It is most important that the word "confidentially" be
retained in Article 6 (1) to protect the identity of the complainant.
It is highly possible that complaints will be made by women in danger
from their State and all efforts must be made to protect the complainant.
2.5 Article
7 - Consideration of Communications
As previously discussed, the exclusion of vague and subjective
language not included in any other international instruments is preferable.
Such language creates uncertainty and undermines the credibility of the
CEDAW Committee. Any procedural concerns should be dealt with in rules
of procedure for the Committee.
Consequently,
- the text proposed
for Article 7(1): "While exercising its function under this Protocol,
the Committee should be in compliance with the principles of objectivity
and impartiality" should be deleted in its entirety; this text has
no precedent in international law or in any other international convention;
- in the alternative
construction of Article 7(1) regarding communications, "information"
should be defined broadly to avoid potential exclusion of information
from illiterate, incarcerated, disabled or otherwise disempowered women;
the words "written or recorded" need to be excluded because of
their limiting effect;
- the inclusion
of the second part of Article 7(1) is appropriate although the words
"United Nations" limit the source of information and should be
excluded; there is a need to encourage the provision of information
from non-government organisations;
- Article 7(2 bis) should be deleted as State Parties should not be allowed to take part in any proceedings before the committee without the presence of the complainant; the appropriate forum for both the complainant and the State Party to make submissions is at the hearing of the complaint and not preliminary considerations by the Committee.
2.6 Article
10 - Inquiry Procedure
The inquiry procedure under the Optional Protocol should reflect
that contained in the Convention on Torture and Other Cruel Inhuman
or Degrading Treatment or Punishment. Such a procedure will be the
most effective for the CEDAW Committee to address the systematic and widespread
discrimination existing in many nations. Thus,
- in Article 10(1) the word "[and]" should be deleted to allow the Committee to inquire when it appears that a violation has been either serious or systematic. To require that a violation be both serious and systematic before an inquiry occur is unnecessarily limiting to the spirit of CEDAW.
2.7 Articles
11 & 20 - Opt Out Clause and Reservations
The Optional Protocol does not seek to create new rights but to
establish procedures to enhance the enforcement and implementation of
CEDAW. A 'pick and choose' approach for the enforcement measures provided
may well weaken the Protocol. The Optional Protocol is already an optional
instrument.
As a result, the inclusion of an opt-out clause for the inquiry procedure as proposed in Article 11 is not favoured, nor are reservations to the Optional Protocol.
Note that a specific prohibition on reservations exists in Article 120 of the recently adopted Statute for a Permanent International Criminal Court.
2.8 Article
12 - State Undertakings
This article is important as it implicitly reaffirms a State Party's
obligation to abide by the rights and protections offered by the other
international conventions. Protection for a complainant, from intimidation
by a State Party, is fundamental to the operation of the Optional Protocol.
Maintaining strong wording in Article 12 will help ensure necessary protection.
