The Optional Protocol to the CEDAW
The Optional Protocol to the Convention on the Elimination of All forms of Discrimination against Women (OP-CEDAW) establishes complaint and inquiry mechanisms for the CEDAW. Parties that have signed and ratified the protocol allow the Committee on the Elimination of Discrimination against Women (CEDAW Committee) to hear complaints from individuals, or to launch inquiries into grave and systematic violations of the CEDAW. The Op-CEDAW was adopted by the UN General Assembly on October 6, 1999 and entered into force on December 22, 2000. It has 80 signatory countries and 114 parties.
Following the ratification of the OP-CEDAW, decisions against member states have been passed in matters concerning domestic violence, parental leave, forced sterilization, and femicide.
Although the CEDAW was historic and epoch-making, it was not accompanied by an implementation mechanism to action the prohibitions it enlisted within its scope. Although a complaints mechanism was recommended during the drafting stage itself, it was not incorporated in the text.
Following the Vienna Declaration and Programme of Action at the 1993 World Conference on Human Rights, it became apparent that the CEDAW had to be buttressed with appropriate provisions and mechanisms for its implementation on ground. This paved the way for the “right of petition.” Following this, an independent group of experts produced a draft in 1994, calling for the establishment of a complaint and inquiry mechanism, which was adopted for a more detailed study by the CEDAW Committee in 1995. Later that year, during the Fourth World Conference on Women, the idea of having an Optional Protocol was endorsed further. The following year, the Commission on the Status of Women set up an open-ended working group that produced a draft, and after three years of deliberation and dialogue, the OP-CEDAW was adopted by the General Assembly on October 6, 1999.
The OP-CEDAW is subsidiary to the CEDAW itself, and is committed to the implementation of the CEDAW’s main contents. To this end, the OP-CEDAW does not introduce or establish any new rights regime, except for the right to seek enforcement of the CEDAW.
Articles 1 to 7 create individual complaints mechanism. This is on the lines of the systems in place under the human rights regime, particularly under the First Optional Protocol to the International Covenant on Civil and Political Rights, Optional Protocol to the Convention on the Rights of Persons with Disabilities and Article 14 of the Convention on the Elimination of All Forms of Racial Discrimination.
Signatory parties are expected to recognize the CEDAW Committee’s competence to consider and hear complaints presented by or on behalf of individuals or groups that claim that their rights under CEDAW have been violated. Where complaints are submitted on behalf of the victim/survivor, the said victim/survivor must consent to such a submission – unless the person making such a submission is able to show cause for acting without their consent. This mechanism has been particularly helpful in encouraging civil society and women’s rights groups push forward for the implementation of the CEDAW.
To access the complaints mechanism, it is essential that victims exhaust all domestic remedies. Anonymous complaints are not permitted before the CEDAW Committee. Complaints pertaining to events that occurred before the country signed and ratified the OP-CEDAW are not accepted before the CEDAW Committee either. Upon hearing cases, the CEDAW Committee has the power to request information and make recommendations to the state party involved – however, these recommendations are not binding.
Under articles 8 to 10, state parties may allow the CEDAW Committee to investigate, report on, and make recommendations on "grave or systematic violations" of the Convention. In the course of these inquiries, the CEDAW Committee may invite the party in question to inform it of all measures taken in response to such an inquiry either directly or through the normal reporting process under the Convention.
Under Article 11, parties are expected to ensure that all those complaining under the Optional Protocol are not subject to ill-treatment or intimidation, while Articles 12 addresses the procedure to be followed by the CEDAW Committee. Under Article 13, parties should inform citizens about the mechanisms available under the CEDAW and OP-CEDAW, while Article 14 details the parameters concerning reporting. The remaining provisions (Articles 15 to 21) speak to the procedural components of the treaty, namely ratification, entry into force, and amendment of the Optional Protocol.