International Bulletin - Fall 1997
Time to Prepare for Comission on the Status of Women 1998
NGOs that expect to attend the 1998 CSW session (Mar 2-13) and wish to participate in the drafting process - the Open-ended Working Group has been open to NGO observers in past sessions - should be well prepared to follow the technical discussion. IWRAW's experience suggests that the most effective NGO participants with respect to the Optional Protocol are lawyers or those who have extensive experience in working with the wording of international legal instruments. The most comprehensive review of the elements of the Optional Protocol and developments up to the beginning of 1996 are in a law review article by Andrew Byrnes and Jane Connors. "Enforcing the Human Rights of Women: A Complaints Procedure for the Convention on the Elimination of All Forms of Discrimination Against Women?" 21 (3) Brooklyn Journal of International Law 679 ( 1996).
According to a post-CSW update by Andrew Byrnes, Faculty of Law, University of Hong Kong, the major elements of the Optional Protocol and their current status in the drafting process are:
1. Who may lodge a complaint. The Chairperson's draft proposed that complaints could be lodged either by (a) individuals, groups or organizations claiming as to their own rights, or by (b) an individual, group or organization claiming that it has a sufficient interest in the matter to make the claim, even if its own rights are not at stake. Option (b) would allow a complaint to be submitted by a third party if women in a particular country are not in a position to lodge one, for political or practical reasons. Option (b) is the source of considerable controversy.
2. What claims may be made. The issue as to types of claims under the CEDAW Convention arises because many of its provisions require States parties to take "appropriate" or "necessary" measures to eliminate discrimination, rather than stating absolute rights of protections. This is known as the "justiciability" issue, is fairly technical, and is the subject of considerable controversy.
3. Provision of an inquiry procedure. This would allow members of the Committee to undertake an inquiry on their own, without submission of a complaint, where circumstances warrant. There is also controversy over this provision, and it is likely that the final draft will contain an option for States parties to reject this type of procedure.
4. The effect of the Committee's determinations under the procedure is controversial. The Chairperson's draft: suggested that the determination be an obligation, while traditionally, in other treaty bodies that allow the complaints procedure, the determinations are merely "high authority." Many delegations strongly opposed the "binding effect" provision.
5. Whether States Parties can enter reservations to the Optional Protocol remains a confusing and unfinished discussion.
6. Other issues that remain controversial or are yet to be determined are: the test for exhaustion of remedies (what do complainants have to establish as to the unavailability of relief in their national system); whether the Committee could take into account material other than that specifically provided by the parties; requirement to publicize the Committee's determinations; Committee's power to request interim measures while a complaint is under consideration; how much of the procedural details should be included in the Optional Protocol and how much left to be determined by the Committee as rules of procedure (which could be altered more readily); and resource allocation to service a complaints procedure.
For additional information on the Optional Protocol, contact IWRAW. Information on general planning for CSW is available from the International Women's Tribune Center, fax (212) 661-2704, e-mail iwtc@igc.apc.org
Last Modified: November 29, 2002