The
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 (CEDAW) was accepted by the United Nations General Assembly on 6 October 1999. This acceptance means that the Optional Protocol is open for signature by countries who are members of the United Nations. As at 30 August 2000, 42 Nations have signed the Optional Protocol and, of these 42 Nations, 5 Nations have ratified it. (see list attached)
A brief history and background
After four years of negotiations, the 43rd session of the Commission on the Status of Women adopted an agreed version of the Optional Protocol to CEDAW in March 1999. The negotiation of the Protocol had been controversial and the final version was ultimately a compromise between the strong views of negotiating Nation States.
Optional Protocols exist under other international conventions: the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. These optional instruments, when signed and ratified by the nation State who is already a party to the original instrument, allow individuals to communicate directly to the committee overseeing the original convention regarding alleged breaches of that convention. Essentially, an optional protocol is an additional enforcement mechanism for the original convention.
Australia has signed and ratified the First Optional Protocol to the ICCPR. In 1992 an Australian became the first to make a complaint under the Optional Protocol to the Committee on Human Rights in Toonan v Australia (488/92) concerning the right to privacy in Tasmania. Toonan was successful with his complaint and the Committee on Human Rights recommended that the Australian government make domestic legislative changes to reflect the rights in the ICCPR. The Australian government accepted this recommendation and acted to pass federal privacy legislation to override Tasmanian laws prohibiting consensual sexual relations between members of the same sex. The first Optional Protocol to the ICCPR proved to be an effective mechanism for enforcing international human rights standards in those instances where Australian domestic law was inadequate.
The motivation behind the development of an Optional Protocol for CEDAW was to bring CEDAW on an equal footing with other international human rights instruments and to enhance the enforcement mechanisms under CEDAW. Although CEDAW represents a strong and valuable statement of women's human rights, it is essentially a weak and often ignored instrument amongst the nation States that have become party to it. Signatories to CEDAW have made more reservations to its provisions than any other UN convention.
The implications of 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. The importance and significance of CEDAW, however, is not matched by its implementation strength. Human Rights are only as effective as their ability to be implemented. CEDAW 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 Optional Protocol has provided an opportunity to strengthen the weak enforcement ability of CEDAW. If adopted, the Optional Protocol gives individual women and groups of women the ability to make a direct complaint to the CEDAW Committee. The CEDAW Committee is established within the CEDAW document and consists of members elected by State Parties, but in their personal capacity as 'experts' on women's issues.
The Committee will only consider complaints related to incidents within the domestic jurisdiction of State Parties to the Optional Protocol and only when the complainant has demonstrated that available domestic remedies have been exhausted. This latter requirement will be lifted if it can be shown that the application of domestic remedies is unreasonably prolonged or unlikely to bring effective relief.
Complaints made must concern an alleged breach of the rights enshrined in CEDAW. These rights broadly encompass issues of political participation, health, education, employment, marriage, family relations and equality before the law. It is important to note that the Optional Protocol does not create new rights. The rights have been in force since the nation State became a party to CEDAW. The Optional Protocol merely creates a new enforcement mechanism for these rights.
Where to from here?Now that the Optional Protocol has been approved by the UN General Assembly, it is open for signature and requires 10 nation States to ratify it to enter into force. So far, 5 nation States have ratified the document. The provisions of the Protocol become effective for the individual signatory States three months after the date of ratification.
Many nation States that are signatories of CEDAW will already have established domestic mechanisms to create and enforce the rights within CEDAW. However, the Optional Protocol remains important for such nations, as well as those who still have some way to go with implementing the rights of CEDAW domestically. This is because:
- The Optional
Protocol provides a 'backup' for domestic mechanisms to ensure that
they are adequate and effective
- Domestic mechanisms
often have gaps so that some women are not able to access them -
the Optional Protocol ensure that an enforcement mechanism is available
to them
- In nation
States with a federalist system, regional and federal governments
may have separate and independent legislative power. Therefore,
the actions of one level of government may be contrary to CEDAW
while the other is not. An Optional Protocol would help to ensure
that all levels of government find domestic methods to set uniform
standards in accordance with CEDAW
- Governments
change, as do systems of power and cultural attitudes. Even though
one nation's government may seem supportive of women's rights now,
they may not be so in the future
- It is important for nations with good domestic protection for women to become a party to the Optional Protocol to demonstrate leadership for other women in the region from nations with less effective mechanisms.
Is the Optional Protocol important for Australia?
Since it became a signatory to CEDAW in 1982, Australia has developed many mechanisms for enforcing the rights enshrined within this convention. Many of these mechanisms have worked effectively over the last 17 years for women. One of these includes the Sex Discrimination Act 1984 (Cth) administered by the Sex Discrimination Commissioner under the auspices of the Human Rights & Equal Opportunity Commission. However, the rights within CEDAW also rely on the criminal justice system, the legal system and cultural attitudes, among others, for implementation and enforcement.
There is no doubt that Australia has an excellent system of laws and processes for women. However, it is not perfect - gaps do exist, as most recently demonstrated by the Report of the National Inquiry into Pregnancy and Work: Pregnant and Productive - it's a right not a privilege to work while pregnant. This report discussed several aspects of employment where gaps existed in the coverage of federal anti-discrimination legislation. Similar gaps also exist in the other areas covered by the Sex Discrimination Act such as superannuation, sport, the provision of goods and services and membership of voluntary organisations.
Not only do gaps exist in the coverage of legislation, but sometimes also in the manner that the legislation is enforced. This may concern the way that evidence is gathered by public employees in a legal case, the decision handed down by a court or the manner in which a public program is implemented.
The availability of the Optional Protocol to individuals within Australia would provide a strong impetus to correct such discrepancies and failings within our current domestic system.
However, from an international perspective, Australia has a moral obligation and an opportunity to show leadership and set standards for women throughout the world. Women from the Pacific region have strongly urged Australia's adoption of the Optional Protocol to demonstrate leadership in the Pacific and assist the adoption of the Protocol in their own countries.
Conclusion
It is of historical importance that the Australian Government was instrumental in the formation and acceptance of CEDAW. The Optional Protocol is also of historical significance. The opportunity to become a party to the Optional Protocol provides a valuable opportunity for the Australian Government to again demonstrate its commitment to CEDAW and the opportunities of women all over the world.
Signatures
to and Ratifications of the Optional Protocol to the Convention
on the Elimination of All Forms of Discrimination against Women
(as at 16 May 2001)
Parties: 21
|
Participant
|
Signature
|
Ratification
|
| Argentina | 28 Feb 2000 | |
| Austria | 10 Dec 1999 | |
| Bangladesh | 6 September 2000 | 6 September 2000 |
| Belgium | 10 Dec 1999 | |
| Benin | 25 May 2000 | |
| Bolivia | 10 Dec 1999 | 27 September 2000 |
| Bosnia and Herzegovina | 7 September 2000 | |
| Brazil | 13 March 2001 | |
| Bulgaria | 6 June 2000 | |
| Chile | 10 Dec 1999 | |
| Colombia | 10 Dec 1999 | |
| Costa Rica | 10 Dec 1999 | |
| Croatia | 5 June 2000 | 7 March 2001 |
| Cuba | 17 Mar 2000 | |
| Cyprus | 8 Februaury 2001 | |
| Czech Republic | 10 Dec 1999 | 26 February 2001 |
| Denmark | 10 Dec 1999 | 31 May 2000 |
| Dominican Republic | 14 Mar 2000 | |
| Ecuador | 10 Dec 1999 | |
| Finland | 10 Dec 1999 | 29 December 2000 |
| France | 10 Dec 1999 | 9 June 2000 |
| Germany | 10 Dec 1999 | |
| Ghana | 24 Feb 2000 | |
| Greece | 10 Dec 1999 | |
| Guatamala | 7 September 2000 | |
| Guinea-Bissau | 12 September 2000 | |
| Hungary | 22 December 2000 | |
| Iceland | 10 Dec 1999 | 6 March 2001 |
| Indonesia | 28 Feb 2000 | |
| Ireland | 7 September 2000 | 7 September 2000 |
| Italy | 10 Dec 1999 | 22 September 2000 |
| Kazakhstan | 6 September 2000 | |
| Lesotho | 6 September 2000 | |
| Liechtenstein | 10 Dec 1999 | |
| Lithuania | 8 September 2000 | |
| Luxembourg | 10 Dec 1999 | |
| Madagascar | 7 September 2000 | |
| Malawi | 7 September 2000 | |
| Mali | 5 December 2000 | |
| Mexico | 10 Dec 1999 | |
| Mongolia | 7 September 2000 | |
| Namibia | 19 May 2000 | 26 May 2000 |
| Netherlands | 10 Dec 1999 | |
| New Zealand | 7 September 2000 | 7 September 2000 |
| Nigeria | 8 September 2000 | |
| Norway | 10 Dec 1999 | |
| Panama | 9 June 2000 | 9 May 2001 |
| Paraguay | 28 Dec 1999 | 14 May 2001 |
| Peru | 22 December 2000 | 9 April 2001 |
| Philippines | 21 Mar 2000 | |
| Portugal | 16 Feb 2000 | |
| Romania | 6 September 2000 | |
| Russian Federation | 8 May 2001 | |
| Sao Tome and Principe | 6 September 2000 | |
| Senegal | 10 Dec 1999 | 26 May 2000 |
| Sierra Leone | 8 September 2000 | |
| Slovakia | 5 June 2000 | 17 November 2000 |
| Slovenia | 10 Dec 1999 | |
| Spain | 14 Mar 2000 | |
| Sweden | 10 Dec 1999 | |
| Thailand | 15 June 1999 | 15 June 2000 |
| The
former Yugoslav Republic of Macedonia |
3 Apr 2000 | |
| Turkey | 8 September 2000 | |
| Ukraine | 7 September 2000 | |
| Uruguay | 9 May 2000 | |
| Venezuela | 17 Mar 2000 |
Further information is available on the UN Website Last updated 13 September 2002.
