United Nations

E/CN.6/1997/5


Commission on the Status of Women

 Distr. GENERAL
18 February 1997
ENGLISH ORIGINAL: ENGLISH, FRENCH, AND SPANISH


COMMISSION ON THE STATUS OF WOMEN
Forty-first session
10-21 March 1997
Item 5 of the provisional agenda


CONVENTION ON THE ELIMINATION OF
ALL FORMS OF
DISCRIMINATION AGAINST WOMEN, 
INCLUDING THE  
ELABORATION OF A DRAFT OPTIONAL
PROTOCOL TO  
THE CONVENTION

            Additional views of Governments, intergovernmental
             organizations and non-governmental organizations
               on an optional protocol to the Convention

                Report of the Secretary-General


                           CONTENTS

                                                     
                                             Paragraphs  Page

INTRODUCTION ...............................  1 - 9         3

 I.     SYNTHESIS OF REPLIES RECEIVED FROM GOVERNMENTS,
        INTERGOVERNMENTAL ORGANIZATIONS AND NON-
        GOVERNMENTAL ORGANIZATIONS...........10 - 70         4

        A.     Views on an optional
               protocol ....................  10 -26         4

        B.     Duplication/overlapping......  27 - 37        7

        C.     Justiciability................ 38 - 61        9

        D.     Reservations................   62 - 70       14

II.     COMMENTS RECEIVED REGARDING
        THE ELEMENTS OF AN OPTIONAL
        PROTOCOL CONTAINED IN
        SUGGESTION 7 OF THE COMMITTEE
        ON THE ELIMINATION OF
        DISCRIMINATION AGAINST WOMEN,
        TAKING INTO CONSIDERATION THE
        REPORT OF THE OPEN-ENDED
        WORKING GROUP ON THE ELABORATION OF
        A DRAFT OPTIONAL PROTOCOL 
        TO THE CONVENTION ON THE
        ELIMINATION OF ALL FORMS OF
        DISCRIMINATION AGAINST
        WOMEN .......................       71 - 230        16


                         INTRODUCTION
 

1.  The Commission on the Status of Women, in its resolution
40/8 of 22 March 1996 on the elaboration of a draft optional
protocol to the Convention on the Elimination of All Forms of
Discrimination against Women, 1/ requested the Secretary-General
to invite Governments, intergovernmental organizations and
non-governmental organizations to submit additional views on an
optional protocol to the Convention, taking into account the
elements contained in suggestion 7, adopted by the Committee on
the Elimination of Discrimination against Women at its
fourteenth session, as well as the deliberations of the
in-session Open-ended Working Group of the Commission, and to
submit to it, at its forty-first session, a comprehensive
report, including a synthesis of the views expressed.  The
present report is submitted in accordance with that request. 

2.  In the same resolution, the Commission requested the
Secretary-General to provide it with a comparative summary of
existing communications and inquiry procedures and practices
under international human rights instruments and under the
Charter of the United Nations.  The comparative summary is
before the Commission in document E/CN.6/1997/4. 

3.  A report of the Secretary-General containing the views of
18 Governments and 19 non-governmental organizations on the
elaboration of a draft optional protocol (E/CN.6/1996/10 and
Corr.1 and Add.1 and 2) was considered by the in-session
Open-ended Working Group of the Commission on the Status of
Women at its fortieth session.  The report of the Working Group
is annexed to the report of the Commission on its fortieth
session. 2/  

4.  In accordance with Commission resolution 40/8, the
Secretary-General addressed a note verbale, dated 18 July 1996,
to member States and observer States, drawing their attention
to the resolution and inviting them to submit their additional
views on an optional protocol to the Secretariat not later than
1 October.  Subsequently, in a second note verbale, dated 3
October 1996, the Secretary-General informed delegations that,
in order to enable all interested Governments to submit their
views, the deadline for submission of comments had been
extended to 4 November but that comments received after 15
November could not be taken into consideration in the report.

5.  A communication dated 12 August 1996 was addressed to
intergovernmental and non-governmental organizations, inviting
them to submit their additional views not later than 1 October
1996.  

6.  A total of 21 replies were received in response to the two
notes verbales from the following member States:  Chile, Costa
Rica, Denmark, Netherlands, Turkey, Luxembourg, Panama, Spain,
Cook Islands, South Africa, Colombia, Cuba, Austria,
Liechtenstein, Philippines, Italy, Venezuela, China, Mexico,
Morocco and Mali.  The Netherlands noted that its previously
communicated position, reflected in document E/CN.6/1996/10,
continued to be relevant and stated that it would not
communicate any additional views.  The Cook Islands
acknowledged receipt of the note verbale but did not submit its
views in time for inclusion in the report.  

7.  The following 12 non-governmental organizations submitted
comments:  Latin American and Caribbean Women's Health Network
(LACWHN), Comite' de Ame'rica Latina y el Caribe para la
Defensa de los Derechos de la Mujer (CLADEM), 49 members of
Costa Rican groups and non-governmental organizations
(hereinafter referred to as "the Group from Costa Rica"),
Danish Women's Society, International Commission of
Jurists/Dutch Section (NJCM), Japanese Association of
International Women's Rights, Vienna NGO Committee on the
Status of Women, Comite' d'Action pour les droits de l'Enfant
et de la femme (CADEF), Coordinadora Nacional de Radio (CNR)
(Peru), Ain  Salish Kendra, Promocio'n Cultural "Creatividad y
Cambio", and Coordinadora Nacional de Derechos Humanos (CNDDHH)
(Peru).

8.  One intergovernmental organization, the Council of Europe,
submitted comments. 

9.  In accordance with the request contained in Commission
resolution 40/8, this report first presents a synthesis of the
replies received.  It then reflects, comprehensively, the
additional views received with regard to the elements contained
in suggestion 7 of the Committee on the Elimination of
Discrimination against Women.3/ 


                I.  SYNTHESIS OF REPLIES RECEIVED FROM
                    GOVERNMENTS,
                    INTERGOVERNMENTAL ORGANIZATIONS AND
                    NON-GOVERNMENTAL ORGANIZATIONS

               A.  Views on an optional protocol

10. The Governments of Costa Rica, Luxembourg, Denmark,
Turkey, South Africa, Austria, Chile, Spain, Panama, the
Philippines, Liechtenstein, Venezuela, Cuba, Italy and Mali, as
well as the Council of Europe, the Japanese Association of
International Women's Rights, NJCM, LACWHN, CNR, Promocio'n
Cultural "Creatividad y Cambio", CNDDHH, the Group from Costa
Rica, CADEF and Ain o Salish Kendra, provided their views on an
optional protocol.  They have been summarized below.

11. Support was expressed for the elaboration of an optional
protocol to the Convention on the Elimination of All Forms of
Discrimination against Women.  It was noted that both a
communications and an inquiry procedure along the lines
contained in suggestion 7 of the Committee on the Elimination
of Discrimination against Women should be contained in such a
protocol.  It was recommended that further negotiations be
conducted on the basis of a specific draft text, and the draft
adopted by the Maastricht 1994 Expert Meeting was seen as the
most suitable text for that purpose.  It was also recommended
that the process of elaborating an optional protocol be
conducted in an open-ended and transparent manner, and that the
resources necessary to ensure that be made available.

12. It was also noted that the formulation of the guiding
principle of the optional protocol, which would determine what
provisions would be included in it, was still not entirely
clear.  Universal ratification of the Convention and its
effective implementation was to be considered the first
priority. 

13.  Replies pointed out that the preparation of such an
optional protocol was called for and was a key element in the
follow-up to the World Conference on Human Rights and the
Fourth World Conference on Women.  Support was expressed for
the speedy conclusion of the work on such an optional protocol
and its subsequent adoption and entry into force. 

14. It was noted that the elaboration of an optional protocol
could make a significant contribution to strengthening the
Convention, as well as the Committee.  An optional protocol
would contribute to the promotion of respect for women's human
rights and more effective implementation, including monitoring
and enforcement, of the rights guaranteed to women in the
Convention.  It was suggested that the process of strengthening
women's rights and the pertinent international instruments be
continued.  The elaboration of an optional protocol would be a
sign of the importance that the international community
accorded to equality between the sexes and might therefore
influence attitudes.

15. The current international means for the implementation of
the Convention were considered to be inadequate and
insufficient.  They were seen as a weakness of the Convention. 
It was pointed out that mechanisms for the enforcement of
"women-specific" human rights standards had been less effective
than those for more general "human rights" standards.  It was
observed that there was a lack of specific procedures within
the United Nations system allowing for the consideration of
specific cases or extensive violations, of women's human
rights, and providing for the possibility of redress for
violations suffered.  Human rights issues of particular concern
to women received relatively little attention under other
treaty-based or Charter-based mechanisms. 

16. It was noted that the implementation of human rights
treaties required the adoption of national measures by States
Parties to give effect to the provisions of the Convention and
international measures and procedures for enforcing the
Convention.  An optional protocol was viewed as an
international mechanism for keeping the Convention up to date
and facilitating its implementation.  At present, the means of
international supervision of the Convention are limited to the
reporting procedure under article 18 of the Convention.  The
implementation of the Convention would also require monitoring
by an international body.  An optional protocol would lead to
the necessary enforcement of the Convention.   

17. It was suggested that such a protocol would place the
Convention on an equal footing with other human rights
instruments that had communications procedures, such as the
International Covenant on Civil and Political Rights (ICCPR),
the Convention on the Elimination of Racial Discrimination
(CERD) and the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (CAT), and would
thus enhance the status of the Convention and strengthen the
effective implementation of its provisions.  Since such
mechanisms already existed under other instruments, its
elaboration in the framework of the Convention on the
Elimination of All Forms of Discrimination against Women had
indeed become necessary.  

18. The entry into force of an optional protocol would
encourage States parties to make a major effort to comply with
their treaty obligations resulting from the ratification of the
Convention.  A right to petition would also encourage
compliance with the Convention in national legal systems and
would provide guidance to States parties in their efforts to
implement the Convention.  

19. An optional protocol could also provide an incentive for
States parties to embark expeditiously on the establishment of
domestic control mechanisms in order to avoid international
oversight.  That result would doubtless be the most desirable,
since the goal of international human rights law was its
incorporation into domestic legal systems.  The protection of
victims should also take place primarily at the domestic level. 
Any international supervision should be subsidiary to domestic
supervision. 

20. There were currently no specific procedures available
within the United Nations system for considering individual
cases or extensive violations of the human rights of women.  As
a consequence, an optional protocol to the Convention would
contribute to the integration of the human rights of women
throughout the United Nations system through the development of
a specific doctrine and jurisprudence and its impact on other
human rights mechanisms within the United Nations system.  

21. It was suggested that an optional protocol would
facilitate implementation of the Convention through the
identification of situations of specific or general
discrimination that would not be evident from reports presented
under article 18 of the Convention.  The reporting procedure
was currently the only means of international supervision.  The
preparation of an optional protocol would thus represent
qualitative progress in the promotion and protection of women's
human rights.  

22. The adoption of an optional protocol would not relieve
States parties to the Convention of their obligations to submit
reports in accordance with article 18 of the Convention.  The
complementary functions of the two procedures was noted. 

23. Replies noted that an optional protocol to the Convention
would reinforce international guarantees for the human rights
of women.  It would fill the existing vacuum in the defence of
women's human rights.  No other instrument or procedure had
that as its sole objective.  

24. The elaboration of a strong instrument that would command
the greatest possible support and a large number of
ratifications was recommended.  The protection afforded under a
communications procedure to the Convention should be no less
effective than that offered by already existing procedures of
comparable instruments in the United Nations human rights
context.  The experience gained via comparable procedures
needed to be taken into account, and at the same time attempts
should be made to go further to create a modern system of
procedures that met the multitude of different requirements. 
The optional protocol should provide a flexible procedure
enabling the Committee to deal effectively with all aspects of
alleged violations of the human rights of women.   

25. The argument that an optional protocol procedure would be
appropriate only in the case of serious violations of human
rights or "serious international crimes" was rejected.  Such an
argument suggested that discrimination against women was less
grave than other forms of human rights violations.  However,
women were often victims of the most serious human rights
violations.  Such offences should therefore be considered as
among the most serious forms of violations, creating an urgent
need for a mechanism to examine allegations of such violations. 


26. It was noted that the existence of a complaints mechanism,
such as that operating under the European Convention on Human
Rights, had proven to be essential for the effective respect of
the rights and freedoms enshrined in treaties and their
enjoyment without discrimination on any grounds, including sex. 
At the same time, the process initiated for the elaboration of
the draft additional protocol should not detract attention from
the need to ensure widespread ratification and improved
implementation of the Convention, or from the necessity for
States to withdraw reservations that they may have made to the
Convention.


                  B.  Duplication/overlapping

27. A number of replies, including those from Mexico,
Venezuela, Turkey, Italy, South Africa, Luxembourg, Austria,
Chile, Liechtenstein and LACWHN, dealt with the question of
possible overlap or duplication between any optional protocol
to the Convention on the Elimination of All Forms of
Discrimination against Women and other existing human rights
mechanisms.  In that regard, the availability to women of such
existing mechanisms was also addressed.  

28. As regards issues of duplication/overlapping, a number of
sections in the report of the Secretary-General on a
comparative summary of existing treaty- and Charter-based
communications and inquiry procedures (E/CN.6/1997/4) may
provide useful information.  Its sections covering
admissibility criteria, the communications procedure of the
Commission on the Status of Women and the 1503 procedure of the
Commission on Human Rights may be particularly pertinent with
regard to the issues under discussion here. 

29. Replies noted that unnecessary duplication or overlap with
existing procedures would need to be avoided.  The relationship
between an optional protocol to the Convention and existing
human rights conventions and enforcement procedures needed to
be examined and clarified.  It was noted that the political,
civil, economic, social and cultural rights of women were
already enshrined in ICCPR and in the International Covenant on
Economic, Social and Cultural Rights (ICESCR), which both
provide for the enjoyment of rights on the basis of
non-discrimination on the grounds of sex.  It was suggested
that women's human rights should be mainstreamed throughout
other human rights mechanisms. 

30. It was also noted that the Committee on the Elimination of
Discrimination against Women was both an independent expert
body and the only body specialized in the human rights of women
and discrimination against women, thus distinguishing it from
the bodies established under other procedures.  No duplication
with other procedures would arise since the Convention on the
Elimination of All Forms of Discrimination against Women was
the only instrument dealing exclusively with women's equality
with men and non-discrimination.  The specialized nature of the
treaty and the expertise of the Committee might encourage women
to seek redress from an international body, which had rarely
been the case under existing procedures, such as the first
Optional Protocol under ICCPR. 

31. It was pointed out that the availability of such a
procedure would not enable women to bring the same claim before
two or more mechanisms at the same time.  Rather, it would
enable them to choose the most appropriate mechanism.  It was
suggested that the multiple or simultaneous use of procedures
could be avoided by introducing admissibility criteria.  That
was the aim of element 9 (f) of suggestion No. 7, as reflected
in the practice of existing human rights treaty bodies. 

32. It was pointed out that the issue of overlap and
duplication was not new.  It had been raised at the time of the
preparation of the Convention and its reporting procedure. 
Although ICCPR and the ICESCR had already been adopted, the
international community had adopted the Convention on the
Elimination of All Forms of Discrimination against Women
because it considered that two general human rights treaties
were insufficient to achieve the elimination of discrimination
on the basis of sex.  Similarly, although ICCPR contained
substantive guarantees against torture, the Convention against
Torture had been adopted as well.  The existence of ICCPR and
its first Optional Protocol had not been considered sufficient
reason to prevent the adoption of the Convention against
Torture with both an individual communications and an inquiry
procedure.

33. The potential for overlap of an optional protocol to the
Convention with the following existing procedures was
discussed:  the 1503 procedure, the communications procedure of
the Commission on the Status of Women, the Special Rapporteur
on violence against women, and the communications procedure
under the first Optional Protocol of ICCPR.  It was proposed
that the various bodies dealing with the issue of
discrimination against women would influence one another in a
positive and mutually stimulating way.

34. It was pointed out that the communications procedure of
the Commission on the Status of Women was little known and weak
compared to other mechanisms elsewhere in the United Nations
human rights system.  That procedure could not be compared to
an optional protocol procedure since the Commission was an
intergovernmental body.  Substantial differences existed
between the two procedures.  It was noted that, in principle,
an expert body transcended any particular interests that
Governments might have.  Experience showed that both
intergovernmental and expert procedures were needed in order to
ensure compliance by States with human rights standards.

35. The mandate of the Special Rapporteur on violence against
women was of a very different nature from the responsibilities
that would be entrusted to the Committee under an optional
protocol.  

36. Notwithstanding the considerable substantive overlap
between the guarantees of the Convention and the
non-discrimination guarantees of ICCPR, especially concerning
articles 2, 3 and 26 of the Convention, a number of reasons in
favour of a communications procedure to the Convention were
identified.  A separate complaints procedure within the
Convention context would ensure a specific focus on the gender
aspects of human rights, a task that required the full
attention of a supervisory body.  The Human Rights Committee
monitored compliance with all the rights contained in ICCPR and
could not focus its full attention on only one aspect of ICCPR. 
A supervisory body could monitor only the rights covered by the
instrument that established it, and not those covered by
another instrument.  Since the rights contained in ICCPR were
limited and quite different from those contained in the
Convention, an exclusive reliance on the Human Rights Committee
established under ICCPR for the protection of the human rights
of women would mean that important obligations of States
parties enshrined in the Convention would remain outside the
control of a supervisory body.  In that regard, a major
emphasis was required on the economic and social aspects of
women's rights, which were being considered only in a marginal
way by the Human Rights Committee.  Lastly, the first Optional
Protocol allowed communications only with regard to violations
of the rights of individuals, whereas violations of the human
rights of women also consisted of systematic failures to
implement obligations.  That required a different emphasis from
a narrow focus on individual violations. 

37. It was noted that the competent bodies of the Council of
Europe were currently considering the elaboration of an
optional protocol to the European Convention on Human Rights on
the fundamental right of women and men to equality.  Such a
protocol would mean that that right would be recognized as an
autonomous, fundamental and justiciable right; its main
consequence would be that respect for that right would be
supervised by international judicial procedures (the Commission
and the Court of Human Rights).  In line with the case law in
the Marckx case, it would also provide a legitimate basis for
positive action to correct subsisting inequalities.  Work on
the possible additional protocol to the Convention and on a
possible protocol to the European Convention on Human Rights
should be seen as complementary and convergent and aimed at the
enhanced promotion of women's human rights.


                      C.  Justiciability

38. A number of Governments, intergovernmental and
non-governmental organizations commented on the question of the
justiciability of the provisions contained in the Convention,
including Spain, Italy, Mexico, Panama, Austria, Luxembourg,
Liechtenstein, the Philippines, Venezuela, Chile, NJCM, the
Council of Europe, the Japanese Association of International
Women's Rights, LACWHN, CNR, the Promocio'n Cultural
"Creatividad y Cambio", CNDDHH, and the Group from Costa Rica.

39. Since all human rights were to a greater or lesser extent
considered to be justiciable, it was recommended that all
substantive provisions of the Convention be considered
justiciable.  The principles of non-discrimination and equality
upon which the Convention was based had been found to be
justiciable by international and regional supervisory bodies,
and remained subject to existing communications procedures and
review by such bodies.  Since all the provisions of the
Convention were to be understood in light of those principles,
they were also justiciable.   

40. It was recommended that the decision on the question of
the justiciability of the provisions of the Convention be left
to the Committee on the Elimination of Discrimination against
Women.  A State party's fulfilment of its obligations under the
Convention was considered capable of scrutiny and meaningful
review by an independent international supervisory body.  The
experience gained in connection with the work of other human
rights treaty bodies showed that that was a viable and flexible
solution for this important question.  

41. Furthermore, an optional protocol would allow the
Committee to develop a practice that would clarify the content
of rights and of some of the more broadly defined obligations
in the provisions of the Convention.  Views expressed by the
Committee on the basis of such an international instrument
would lead to a much more detailed understanding of those
obligations as far as alleged violations of the equality and
non-discrimination requirements of the Convention were
concerned.  The Committee's case law would contribute to the
promotion and protection of all human rights of women.  Such
case law could make significant contributions to further
enhancing the justiciability of economic, social and cultural
rights. 

42. It was pointed out that the content of rights, and
therefore their justiciability, were determined by the
judiciary, at both the national and the international levels. 
The Committee was therefore the most appropriate body to
decide, on the basis of its expertise, to what extent an
invoked right was justiciable in any concrete case before it.

43. Concern was expressed about an approach that would
differentiate between "justiciable" and "non-justiciable"
provisions.  Such an approach would lead to two categories of
rights and would thus suggest that some provisions of the
Convention were of greater importance than others.  That would
seriously impair the integrity of the Convention, which put
forward the human rights of women in a comprehensive manner, as
a single whole.  It would establish a hierarchy of rights.  It
was feared that, as a result of such categorization into
justiciable and non-justiciable rights, some provisions of
critical importance might not fall within the framework of the
optional protocol and the competence of the Committee, and thus
might be excluded from the enhanced implementation intended by
the proposed protocol. 

44. Attention was drawn to the frequent emphasis placed by
international forums on the indivisibility, interdependence and
interrelatedness of all human rights, be they civil, political,
economic, social or cultural.  It was noted that all human
rights were equally important and should therefore have
supervisory procedures of equal strength.  The adoption of a
protocol in respect of an instrument that contained civil and
political, as well as economic, social and cultural human
rights, would constitute an important step towards the actual
realization of that principle. 

45. It was pointed out that, in discussing justiciability, the
question of the content of an obligation needed to be
differentiated from the question of the nature of an
obligation.  When considering the nature of the obligations
contained in the Convention, it was noted that all its
provisions established an immediate and direct obligation for
States parties to the Convention, an obligation that was no
different from the obligations emanating from other human
rights treaties.  States parties to human rights treaties had
accepted to be legally bound by them.  Such treaties did not
constitute mere declarations of intent but concrete obligations
with which States parties must comply.  In that regard, the
Convention on the Elimination of Discrimination against Women
was no exception.  

46. Responses identified different types of obligations
established by the Convention.  It was suggested that
obligations comparable to those found in the classical civil
and political rights context, which impose an explicit and
immediate obligation on States parties, were clearly
justiciable.  Articles 7 (a), 9, 13, 15 and 16 were suggested
as falling within that category.  Others were rather
programmatic in character, and apparently granted a State party
a wide margin of discretion or appreciation in choosing the
means for achieving a specific goal defined in the Convention. 
Articles 5, 6, 8, 10, 11, 12 and 14 were suggested as falling
within that second category.  

47. Another categorization identified three principal sets of
obligations:  "States parties shall ensure/shall accord/shall
grant the right ..."; "States parties shall undertake ..."; and
"States parties shall take all appropriate measures (in order
to ensure) ...".   A further categorization found that the
Convention provided for women's right to equality and
non-discrimination in all areas of private and public life,
with other provisions of the Convention establishing an
obligation for States parties to take appropriate steps towards
specific goals.

48. Provisions considered to be more of a programmatic nature
were, without exception, considered capable of supervision.  It
was pointed out that the principle of compliance in good faith
with Convention obligations (pacta sunt servanda) provided
sufficient basis for the examination of compliance by the
Committee.  Nevertheless, in its assessment, the Committee
would need to take into consideration the nature of each
specific obligation.  In respect of provisions that accorded a
State party a margin of discretion, external review would be
restricted to the question of whether the State had taken
reasonable steps within a range of options.  When entrusted
with a quasi-judicial oversight responsibility in the framework
of an optional protocol procedure, the Committee would need to
take into consideration that margin of appreciation of States
parties.  In each case, trends in progress towards a goal, the
existence of legislation, or other means of implementation
could serve as basis for the supervisory body to conclude
whether a State party had or had not complied with its treaty
obligations.  It would be possible for the Committee to assess
whether a State had taken the minimum steps necessary for
carrying out its obligations in good faith.  

49. It was noted that the question of the justiciability of
the specific provisions of the Convention was apparently
connected with a traditional approach to the implementation of
human rights, which differentiated between "classical" civil
and political rights and economic, social and cultural rights. 
In that regard, civil and political rights were seen as
requiring the State to refrain from infringing conduct
(negative rights, directed against infringement).  Economic,
social and cultural rights, on the other hand, were seen as
requiring the State to take positive steps to ensure the
enjoyment of rights (positive rights).  That approach would
suggest that rights other than civil and political rights were
too vague and insufficiently detailed to form the subject of
measurement or supervision.  

50. The dynamic development of the field of human rights,
however, had made it clear that such a categorization and the
subsequent separate treatment of rights could be detrimental to
an integrated approach to human rights questions.  It should
therefore no longer be upheld.  Similarly, many classical civil
and political rights required positive action on the part of
the State party to ensure their enjoyment.  For example, the
right to due process required such steps as the physical
creation and maintenance of facilities and the payment of
salaries to judges and other personnel.  It was also suggested
that all those who promoted the right to development should be
in favour of adopting a comprehensive approach and the
justiciability of all rights, since economic, social and
cultural rights had traditionally been classified as
non-justiciable.  
51. The case law of the Human Rights Committee and other
international and regional human rights bodies with
communications and other control mechanisms were provided as
illustrations of that view.  Many provisions in such
instruments were formulated in vague terms or required
elaboration.  For example, article 14 of ICCPR contained the
concept of "without undue delay", articles 21 and 22 spoke of
"public order (ordre public)", article 4 referred to "public
emergency which threatens the life of the nation", and article
22 used the term "necessary in a democratic society".  With
regard to the latter, reference was made to the substantial
case law under article 8 of the European Convention of Human
Rights and Fundamental Freedoms.  The case law of the European
Court of Human Rights also supported the view that the
traditional distinction made between civil and political
rights, as being justiciable, and economic, social and cultural
rights, as being non-justiciable, was not clearly defined.

52. Accordingly, it was concluded that justiciability was more
an issue of degree, given the particularities of a case, rather
than of particular rights.  In the examples given in paragraph
49 above, it was up to the supervisory body, on a case-by-case
basis and as objectively and generally as possible, to
establish the criteria for determining whether a State party
had fulfilled its obligations.  While recognizing the State
party's margin of appreciation in the fulfilment of its
obligations, it was up to the treaty body to determine whether
a State party had taken appropriate steps in order to avoid
violations and to fulfil its obligations under the
international instrument.  Given that need for assessment of
the obligations of States parties in relation to classical
rights, it was concluded that a similar assessment would be
required to determine the fulfilment of obligations under the
Women's Convention. 

53. In reviewing the content of the Convention on the
Elimination of Discrimination against Women, it could be
concluded that all its provisions could be subject to
supervision of compliance, either through an individual
communications procedure or through an inquiry procedure for
situations of serious or systematic failure to comply.  

54. In recommending further detailed discussion of
justiciability, it was also noted that the provisions of the
Convention do not per se create human rights of or for women,
since the Convention as a whole reiterated, in a specific
manner, the right of women not to be discriminated against on
the basis of sex, and to have the necessary national legal,
political and administrative measures in place to be able fully
to exercise their human rights.  The rights to
non-discrimination on the basis of sex and the implementation
of those rights were already enshrined in ICCPR and ICESCR in
their common article 3, as well as, respectively, in their
articles 2.1 and 2.2.  

55. When considering the rights contained in ICCPR and ICESCR
and in the Convention, it could be observed that articles 1-5
of the Convention were a women-specific elaboration of the
general provisions found in articles 3 and 10 of ICESCR; the
rights contained in articles 7 to 9 of the Convention were also
protected in articles 24 and 25 of ICCPR; the rights contained
in articles 10 to 12 of the Convention were also protected in
articles 6 and 7, 12 and 13 of ICESCR; article 13 of the
Convention was also reflected in article 3 of ICESCR; and
articles 15 and 16 of the Convention were complementary to
articles 14, 23 and 26 of ICCPR.  Only article 14 of the
Convention did not have an equivalent provision in either
covenant, but a number of its provisions dealt with such rights
as the right to health, education, etc.  In the light of those
considerations, it was regarded as important to take into
account the nature of the Convention and the provisions that it
contained.

56. It was also noted that since general obligations requiring
States parties to take appropriate measures to eliminate
discrimination against women in various areas did not seem to
lend themselves to a communications procedure, the question of
their justiciability had to be subject to further
consideration, such as on the basis of the work of the
Committee in providing interpretive observations or general
recommendations on each of the substantive articles.

57. Reference was made to the principle of international law
whereby its rules solely obligate the States.  Private actions,
therefore, could normally not constitute a violation of a
provision of a Convention.  Exceptionally, a Convention might
provide that the State party was obliged to introduce,
nationally, a supervision system to ensure that private persons
respected the obligations of the State enshrined in the treaty. 
The text of an optional protocol should clearly address whether
actions of private persons could constitute a violation of the
Convention and as such form the basis of individual
communications.  

58. In view of the content of the rights contained in the
Convention, the point was made that not all rights could be
subjected to homogeneous assessment, and that a supervisory
body would therefore not be in a position to decide about
compliance or lack of compliance with a provision.  In
addition, to reinforce the argument with regard to
justiciability, it was felt that there was a risk of
subjectivity in trying to take a position for or against the
justiciability of an individual human rights violation. 

59. Reference was made to the views of the Committee on
Economic, Social and Cultural Rights regarding the question of
justiciability, which were submitted to the World Conference on
Human Rights (A/CONF.157/PC/62/Add.5, annex II) and were
expressed at its fifth session in general comment 3 on the
nature of obligations under ICESCR.  In that comment, the
Committee had rejected the view that economic, social and
cultural rights were not amenable to judicial enforcement.  The
interpretive work carried out by the International Labour
Organization (ILO) was mentioned as another example of the
justiciability of human rights.  The precedent of the
Convention on the Elimination of All Forms of Racial
Discrimination was also mentioned.  That Convention's
individual communications procedure covered all provisions of
the Convention, although the nature of their justiciability was
not uniform.  

60. Examples of the case law of the European Court of Human
Rights were provided to further illustrate the justiciability
of rights.  In the Airey case, for example, the Court had
stated that, although the European Convention on Human Rights
(ECHR) set forth what were essentially civil and political
rights, many of them had implications of a social or economic
nature.  The Court had therefore considered that the mere fact
that an interpretation of the Convention might extend into the
sphere of social and economic rights should not be a decisive
factor against such an interpretation; there was no watertight
division separating that sphere from the field covered by the
Convention (Judgement of 9 October 1979, Series A, No. 32,
 26). 

61. Furthermore, the Court's case law had also recognized
that, in addition to the essentially negative undertakings laid
down in ECHR to refrain from action that would violate rights
or freedoms, effective respect for the rights and freedoms of
ECHR might entail certain positive obligations for the States
parties (see, for example, the Marckx judgement of 13 June
1979, Series A, No. 31,  31 and 45).  The Court considered
itself competent to review the States parties' compliance with
such positive obligations.  The specific nature of those
obligations, however, was reflected in the fact that the Court
generally accepted that a wide margin of appreciation should be
left to States parties in such cases.


                       D.  Reservations

62. Some replies addressed the question of reservations to an
optional protocol, including those of Spain, Panama,
Liechtenstein, Turkey and Austria.  Reference was also made to
specific comments made to element 28, and the comment on
reservations under element 5.  Attention was also drawn to the
report of the Secretary-General on a comparative summary of
existing treaty- and Charter-based communications and inquiry
procedures (E/CN.6/1997/4).  The section on reservations
contained in that report might be relevant to the issues under
discussion here.

63. It was emphasized that the ratification of an optional
protocol would have no effect on the reservations that a State
party had made to the Convention upon ratification or
accession. 

64. In principle, the explicit and general non-reservation
clause to the optional protocol in element 28 was welcomed.  It
was noted that the optional protocol would deal only with
procedural matters and would not contain any substantive
provisions, thus making reservations unnecessary.  

65. However, a general prohibition on reservations in an
optional protocol could have the disadvantageous effect of a
smaller number of ratifications of the optional protocol. 
Accordingly, it was proposed to follow the precedent of the
first Optional Protocol to ICCPR, which was silent on the
question of reservations.  No separate provision should be
included in the optional protocol concerning the powers of the
Committee to determine the admissibility of reservations. 
However, some assurance was required that the Committee on the
Elimination of Discrimination against Women would follow the
case law of the Human Rights Committee.  

66. The general view within the United Nations system seemed
to be that a treaty body did not have the power to declare a
reservation inconsistent with the object and purpose of the
relevant treaty.  Reference was made to the Human Rights
Committee's statements on the admissibility of reservations. 
In its general comment 24 (52) on the question of reservations,
the Human Rights Committee had stated that it necessarily fell
to the Committee to determine whether a particular reservation
was compatible with the object and purpose of the Covenant.

67. Concern was expressed regarding the large number of
reservations entered to the Convention and their compatibility
with the object and purpose of the treaty.  It was considered
that the Committee, in the framework of an optional protocol,
would have the opportunity to consider this point, which is,
however, independent of the process of further elaborating the
Convention.

68. As to the permissibility of reservations to multilateral
treaties, in particular human rights treaties, reference was
made to the Vienna Convention on the Law of Treaties, according
to which reservations incompatible with the object and purpose
of a Convention were not permissible.  That principle was
reflected in article 28 of the Convention on the Elimination of
All Forms of Discrimination against Women.  The practice under
multilateral treaties was to admit reservations. 

69. It was noted that any reservations would need to be made
within the framework of article 28 of the above-mentioned
Convention, and on that basis, the Committee should direct its
attention towards the suggestion of a review of the
compatibility of reservations with the Conventions and,
consequently, a review of the admissibility of a communication.


70. It was noted that an optional protocol would serve as a
factor that would promote the withdrawal of reservations made
by States parties to the Convention.




 II.  COMMENTS RECEIVED REGARDING THE ELEMENTS OF AN OPTIONAL
      PROTOCOL CONTAINED IN SUGGESTION 7 OF THE COMMITTEE ON 
      THE ELIMINATION OF DISCRIMINATION AGAINST WOMEN, TAKING
      INTO CONSIDERATION THE REPORT OF THE OPEN-ENDED WORKING
      GROUP ON THE ELABORATION OF A DRAFT OPTIONAL PROTOCOL  
      TO THE CONVENTION ON THE ELIMINATION OF ALL FORMS OF   
      DISCRIMINATION AGAINST WOMEN3                          

Element 5

    "5. States parties to the Convention should have the
    option to ratify or accede to the optional protocol. 
    'State party' in this section means one that has ratified
    or acceded to the optional protocol."

71. China suggested that element 5 be revised to read:  "A
State party to the Convention that becomes a party to the
present protocol recognizes the competence of the Committee to
receive and consider communications from individuals subject to
its jurisdiction who claim to be victims of a violation by a
State party of any of the rights set forth in the Convention. 
No communication shall be received by the Committee if it
concerns a State party to the Convention that is not a party to
the present Protocol."

72. South Africa noted that States parties to the Convention
on the Elimination of All Forms of Discrimination against Women
should have the option to ratify or accede to the optional
protocol.

73. Mexico noted that the observations of the Working Group
were satisfactory; the States parties to the Convention must
have the option of signing it and, if they saw fit, ratifying
the optional protocol or, as the case may be, acceding to it. 
Mexico added that, independently of the consideration given to
reservations entered by States parties, where a communication
was submitted relating to an article of the Convention that was
the subject of a reservation on the part of the State party
complained of in the communication, the Committee could not
agree to consider the communication.  Mexico concluded that, in
that connection, it should be recalled that the Committee was
not competent to take a position on the admissibility of
reservations.

Element 6

    "6. Two procedures should be envisaged:  a communications
    procedure and an inquiry procedure."

74. China noted that the main purpose of an optional protocol
was to examine individual complaints.  Therefore, China
suggested that only a communications procedure be envisaged in
an optional protocol to the Convention.

75. South Africa, Costa Rica, Panama, Venezuela, LACWHN, CNR,
Promocio'n Cultural "Creatividad y Cambio", CNDDHH, the Group
from Costa Rica and Ain o Salish Kendra noted that two
procedures should be envisaged in an optional protocol, i.e., a
communications procedure and an inquiry procedure.  Venezuela
noted that that was necessary in order to respond to situations
in which violations of the rights of women were believed to
have occurred.  It would also make it possible to ascertain
whether or not a situation involving a violation of women's
human rights existed.

76. Spain considered that an optional protocol should contain
both procedures since they were complementary.  The inquiry
procedure was particularly important in dealing with serious
and systematic violations of the rights of women.

77. Chile supported both procedures envisaged in suggestion 7,
i.e., the consideration of individual communications for the
purpose of "adjudicating" claims with regard to rights; and the
other, an inquiry procedure which afforded the Committee the
opportunity actively to investigate a situation of systematic
violations or cases of serious non-compliance with obligations
under the Convention.  The former type of procedure would make
it possible to provide individual protection for the victims of
isolated violations; the latter would deal with non-compliance
that was likely to have many victims but which required a more
comprehensive solution and, possibly, the provision of general
background information that it would be difficult to expect an
individual complainant to possess.

78. Colombia considered that the establishment of a
communications procedure and an inquiry procedure as envisaged
in element 6 was positive, provided that the time limit for
admissibility and the conditions to be observed in the various
steps to be taken before the Committee on the Elimination of
Discrimination against Women took a final decision in the
matter were laid down.

79. Mexico reiterated that, if there was a consensus to
establish two procedures, the same requirements and procedures
as were envisaged for the "communications procedure" (to which
Mexico refers below) must also apply to the inquiry procedure.

Element 7

    "7. Communications may be submitted by an individual,
    group or organization suffering detriment from a violation
    of rights in the Convention or claiming to be directly
    affected by the failure of a State party to comply with
    its obligations under the Convention or by a person or
    group having a sufficient interest in the matter."

80. China suggested that element 7 should be revised to read: 
"Subject to the provision in element 5, individuals who claim
that any of their rights enumerated in the Convention have been
violated and who have exhausted all available domestic remedies
may submit a written communication to the Committee for
consideration."  China would not agree to the expansion of the
right to submit a communication to include "a person or group
having sufficient interest in the matter".

81. Costa Rica suggested that communications could be sent by
individual women, groups and organizations of private citizens.

82. South Africa repeated the text of element 7.

83. Italy suggested that the procedure be initiated at the
request of individuals, groups or associations having, in the
opinion of the Committee, a sufficient interest in the matter. 
Non-governmental organizations in consultative status with the
United Nations should always be entitled to submit a
communication.  In the case of systematic violations, either a
direct application by the association or group as a party or
the intervention of the association or group on behalf of the
victim should be contemplated.

84. Mexico reiterated its initial position, reflected also in
paragraphs 32 and 33 of the report of the Working Group, that
the right to submit communications should be enjoyed only by
individuals or persons under the jurisdiction of the State
party that is referred to in the communication who suffer harm
as a result of a violation of or non-compliance with any
provision of the Convention.  Similarly, as had been amply
discussed in the Working Group, the criterion of "sufficient
interest" could not serve as the basis for the right to submit
communications which the optional protocol was intended to
establish, since it did not provide for upholding the
submission of communications.  It did not seem desirable to
consider the possibility raised in the Working Group of taking
steps "to expand the right to file a communication by allowing
filing to be done on the basis of a 'threat of violations ...'" 
4/  It did seem appropriate, on the other hand, to study
carefully and discuss the idea of qualifying the "non-
compliance" as "deliberate, widespread or systematic". 5/

85. Spain noted that both individuals and groups having an
interest should have standing to file complaints in the context
of the communications procedure.  There were precedents for
such an arrangement both in the Protocol to the Convention on
the Elimination of All Forms of Racial Discrimination and in
other regional human rights instruments.  The granting of
standing to groups of individuals was especially appropriate if
one took into account the fact that the various forms of
discrimination against women were often of a structural nature. 
As regards violations of that kind, it could also be difficult
to identify the victims and consequently the granting of
standing to interested groups was the only way to ensure that
such violations could be considered in the context of the
communications procedure.  With regard to the granting of
standing to organizations, it should be made clear whether the
intention was for the protocol to cover non-governmental
organizations.

86. Panama was of the view that any person or persons, or
group or legally recognized non-governmental body could submit
petitions containing complaints of violations of the Convention
by a State party.  However, it supported the inclusion of a
third category of "organizations" dealing with gender-based
violations of a systematic nature, not only because it was as
innovative measure but also because other categories were
established in the terms of inequality between women and men. 
Panama agreed that the right to file a communication should be
expanded when there were indications of the existence of a
threat of violations or infringements of the rights protected
by the Convention, since the protocol should be geared more to
preventing violations than to punishing them.

87. Austria, Liechtenstein and Denmark noted that the proposal
that groups should also be able to lodge complaints was very
broad, and went further than what was available under other
comparable complaints procedures in the United Nations human
rights context, as well as those available at the regional
levels.

88. In principle, Austria welcomed that innovative element,
which would permit a wide range of individuals and groups to
lodge complaints.  The proposals would allow the frequently
systematic nature of gender discrimination affecting larger
groups to be confronted; in many cases, complaints by
individuals would not be adequate for confronting such
discrimination.  At the same time, it would be necessary to
discuss the proposal in greater detail so as to be able to take
account of the experience gained in the course of other
complaints procedures, in particular in connection with the
right to complain.  Liechtenstein added that that innovative
approach could make a special contribution to efficient
consideration of massive and large-scale violations of women's
rights, and that it therefore deserved further and serious
consideration.  Denmark commented that the usual condition,
i.e., that the plaintiff be "the victim", was not laid down. 
The competence of the Committee to receive communications from
non-victims should be interpreted in accordance with similar
practices in other international procedures.  In addition, it
was not a condition that the victim be subject to the
jurisdiction of the State against which the communication was
lodged.  That was normally a condition, as for example under
the first Optional Protocol of ICCPR, and a similar condition
should apply under the optional protocol being considered.

89. Turkey and Venezuela agreed that the terms "group" and
"organizations" needed further clarification.  Turkey added
that the distinction between "the victim having the right to
complain" and the "person" and "group" or "representative who
might file a complaint on the person's behalf" needed to be
expressly defined.  Venezuela added that there was a need to
clarify and define the scope of the term to be used, whether
organization or group, in the event that restrictions were to
be placed on the categories of individuals or groups having
standing to file complaints.

90. Cuba stated that it found the formula "having sufficient
interest" to be ambiguous, as it was open to subjective
interpretation.

91. Turkey and Luxembourg recommended that the meaning of
"having sufficient interest" be clarified.  Otherwise,
Luxembourg recommended that the phrase be deleted.

92. Luxembourg recommended that element 7 should state that
communications could be submitted by individuals, groups of
individuals or non-governmental organizations which were the
victims of a violation by one of the States parties of a right
recognized in the Convention or which claimed to be directly
affected by the non-compliance by a State party with its
obligations under the Convention.  The second part of that
sentence would allow for the filing of complaints by
individuals in respect of specific incidents, insofar as such
incidents were linked to the failure on the part of the State
to fulfil its obligations.  The State could not, however, be
held responsible for discriminatory conduct by any and all
individuals under its jurisdiction.

93. Colombia considered that when the victim was physically or
psychologically unable to submit a communication, standing
should be granted to certain organizations to do so; it would
be useful towards that end to specify the categories and
characteristics of such organizations.  Another positive
feature which should be included in a protocol was the
possibility of allowing members of groups to lodge group
complaints by having the various members sign the
communication.

94. Chile noted that with regard to the procedure for the
examination of individual communications it seemed important to
uphold the view that any individual or group could initiate the
procedure.  An individual could lay himself/herself open to
considerable risk if he/she lodged a complaint relating to
human rights (take, for instance, the consequences that could
arise for the complainant at work or within the family).  Thus,
in order for the system to work, organizations or groups must
be granted standing to lodge complaints.  It was possible, on
the other hand, that in the form of an individual case a
violation affecting many others may be examined (for example,
discrimination on the basis of nationality or with respect to
the legal capacity of women) and it did not seem reasonable to
prevent the problem from being submitted by an organization
which did not, legally speaking, represent specific individual
women.

95. Morocco noted that the determination as to who could
submit a communication and the definition of standing were too
broad.  Morocco could therefore only share the views of those
States which had misgivings about the possibility of allowing
groups or organizations to refer matters to the Committee and
considered that the right to submit communications should be
limited to individuals claiming to be the "victims" of a
violation of one of the rights contained in the Convention,
along the lines of the first Optional Protocol to the
International Covenant on Civil and Political Rights.

96. Venezuela stated that in any event the Committee should be
given expanded powers to receive and examine communications
from individuals who alleged that they were victims of a human
rights violation, as provided for in article 1 of the Optional
Protocol to the International Covenant on Civil and Political
Rights.

97. According to Mali, the following should have standing:  a
person; a person acting on behalf of another person; and
associations and non-governmental organizations recognized by
the Government and engaged in the protection of human rights.

98. LACWHN, CNR, Promocio'n Cultural "Creatividad y Cambio",
CNDDHH and the Group from Costa Rica recommended that provision
should be allowed for communications from both individual women
and groups, networks and non-governmental organizations.  Ain o
Salish Kendra found the provision of broad standing criteria,
which allowed not only victims but also those with sufficient
interest in the matter to seek redress, to be especially
useful.  That would allow non-governmental organizations and
other public interest organizations to represent the interests
of individual victims who might not otherwise have the ability
or resources to vindicate their rights.

Element 8

    "8. Communications would be in writing and confidential."

99. South Africa, Italy, Cuba, Panama and Mexico noted that
communications should be submitted in writing.

100.    Panama explained that oral presentation presented some
difficulties; other than in exceptional cases, taped
submissions could be accepted.  Colombia noted that, in certain
cases, petitions comprising videos or written statements should
be admissible, allowing the Committee to further appropriate
investigations.  Mexico noted that there was a lack of clarity
in the idea put forward in the Working Group that "in
exceptional cases, when the Committee deemed that there was no
other reasonable way to lodge a communication, some other means
could be accepted, such as oral presentation, or taped
submissions". 6/  On that point, the view was taken that
consideration should be given to the practical difficulties
that an oral presentation would give rise to, including
significant financial implications.

101.    With regard to the confidentiality of a communication,
Panama expressed the view that the focus should be on the
confidential treatment of the communication.  The Committee
could decide on the subsequent publication of the report. 
Mexico reiterated that the State party must always be informed
of communications, as was the practice under other procedures,
with the establishment of proper safeguards for the security of
the signatory to the communication.  Italy added that the
written communication needed to be communicated to the State
party.

102.    Cuba noted that communications must be treated
confidentially, with involvement of the victim, the State and
the Committee.  In no case should the name of the author
submitting the communication against the State be concealed. 
That would complicate proceedings and impede the objective
establishment of the facts and possible subsequent reparation
by the State, if it were really responsible.

103.    Spain considered that complaints must be treated
confidentially and that, in that regard, the practice of the
Human Rights Committee could serve as a model.  Spain
considered, however, that that need must be accommodated with
publication of the results of the inquiries by the Committee on
the Elimination of Discrimination against Women, since the
publication of its findings made a significant contribution to
increasing the effectiveness of the instrument.  Mexico
considered it necessary to maintain confidentiality until the
matter was concluded.

104.    Luxembourg noted that the meaning of "confidential",
which apparently referred to the confidential treatment of a
communication, needed to be clarified.

105.    With regard to the confidential nature of the report,
Mali proposed treatment of communications on a case-by-case
basis, in accordance with the geopolitical context of the State
party.

106.    As to the identity of the petitioner, Mexico
reiterated its position that communications must identify the
person or persons involved, and that they could not be
anonymous [as was also the practice under other similar
procedures].

Element 9 (a)

    "9. The admissibility of a communication would be subject
    to the following:

        (a) The communication would be inadmissible if a State
    party to the Convention had not ratified or acceded to the
    optional protocol;"

107.    Mexico noted that no communication referring to a
State that was not party to the optional protocol could be
admissible.

Element 9 (b)

        "(b)The communication should not be anonymous;"

108.    Cuba noted that any anonymous communications received
should be inadmissible.  South Africa noted that a
communication should not be anonymous.

Element 9 (c)

        "(c)The communication should disclose an alleged
    violation of rights or an alleged failure of a State party
    to give effect to obligations under the Convention;"

109.    Luxembourg suggested bringing the terminology used in
that element into line with that used in element 7 of
suggestion 7, taking into account the changes it had suggested.

110.    Cuba stated that each communication must describe the
facts and indicate the object of the petition and the rights
that had allegedly been violated.  South Africa stated that a
communication should disclose an alleged violation of rights or
failure by the State to give effect to the obligations imposed
by the Convention on the State party.  Mexico suggested that
where the communication referred to "alleged" violation or
failure to give effect to the provisions of the Convention, it
should be understood that it could not be accepted a priori
that there was a violation or failure to give effect before the
communication had been examined and discussed and before the
corresponding information from the State party impugned had
been received.

Element 9 (d)

        "(d)The communication should relate to acts or
    omissions that occurred after the State party ratified or
    acceded to the Convention, unless the violation or failure
    to give effect to those obligations or the impact
    continued after the protocol took effect for that State
    party;"

111.    China suggested that the words "unless the violation
or failure to give effect to those obligations or the impact
continued after the protocol took effect for that State party"
be deleted.

112.    Luxembourg and Mexico (the latter referring to the
report of the Working Group 7/ and E/CN.6/1996/10, para. 78)
noted that the current formulation of element 9 (d) would be
unacceptable in an international treaty since it contradicted
the general legal principle of non-retroactivity of norms.  For
a communication to be admissible, it would need to refer to an
act or omission that occurred after the ratification of or
accession to the optional protocol by the State party
concerned, and not to the State party's ratification of or
accession to the Convention.  The latter point was also made by
Panama, Cuba and Morocco.

113.    Similarly, Denmark noted that the possibility of
retroactive effect should be avoided.  Spain expressed the view
that it was not appropriate for the communications procedure to
refer to violations that had occurred before entry into force
of the protocol since that would be a disincentive to its
ratification and would not accord with similar procedures.

Element 9 (e)

        "(e)The communication should not be an abuse of the
    right to submit a communication;"

114.    China suggested that element 9 (e) be revised to read: 
"The communications procedure should not be applied in such a
way as to authorize anyone to make unfounded accusations
against a State party or make use of distorted facts."

Element 9 (f)

        "(f)A communication would be declared inadmissible by
    the Committee if all domestic remedies had not been
    exhausted, unless the Committee considered that
    requirement unreasonable.  If the same matter was being
    examined under another international procedure, the
    Committee would declare the communication inadmissible
    unless it considered that procedure unreasonably
    prolonged;"

115.    China suggested the deletion of the following phrases: 
"unless the Committee considered that requirement unreasonable"
and "unless it considered that procedure unreasonably
prolonged".

116.    With regard to the exhaustion of domestic remedies,
Spain noted the particular appropriateness of the drafting of
the International Convention on the Protection of the Rights of
All Migrant Workers and Members of Their Families, in that it
reflected the practice of the Human Rights Committee.  Costa
Rica, LACWHN, CNR, Promocio'n Cultural "Creatividad y Cambio",
CNDDHH and the Group from Costa Rica noted that an optional
protocol needed to contemplate the possibility of recourse to
procedures under international law, even if domestic remedies
had not been exhausted, in cases where there was unreasonable
delay by the State or little likelihood of effective relief (as
was permitted under the Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment).  Mali
stated that all domestic remedies must be exhausted, subject to
the effectiveness of those remedies, and that communications
must be submitted to the Committee on the Elimination of
Discrimination against Women.

117.    South Africa and Panama commented that all domestic
remedies would need to be exhausted before the aggrieved party
could approach the Committee for relief.  Panama added, as an
admissibility criterion, that the subject matter of the
petition or communication must not be pending under any other
international procedure.  Panama continued that the foregoing
provisions would not apply where the domestic legislation of
the State did not provide for due process of law with regard to
the protection of the right or rights which had allegedly been
violated; the alleged victim of a violation had not been
allowed access to domestic remedies, or had been impeded in
exhausting such remedies; there had been unreasonable delay in
a decision with regard to domestic remedies.

118.    Luxembourg proposed the addition of the word
"available" before the words "domestic remedies".  Further, the
second element of the first sentence was too vague.  The
criteria on which the Committee would base itself in declaring
the requirement for the exhaustion of domestic remedies
unreasonable must be determined.

119.    Denmark noted that it was a rule of international law
that the State should have the opportunity to correct an
alleged violation, such as an alleged violation of human
rights, within the national court system before the case could
be adjudicated before an international body (rule of local
redress).  In international conventions, it was normally a
condition that the plaintiff shall have exhausted all national
remedies before an international body can debate the factual
aspects of the case.  Should the Committee find that an
insistence on that condition in a specific case was
unreasonable, the Committee should be entitled to grant an
exemption.  That subject should be given further consideration.

120.    Mexico and Venezuela referred to the report of the
Working Group 8/ and agreed that it would not appear to be
appropriate for the Committee to judge whether domestic
remedies had been exhausted.  Mexico agreed with the views
expressed in the Working Group regarding the appropriateness of
seeking a formulation like that used in procedures under the
International Covenant on Civil and Political Rights and the
Committee against Torture (para. 48 of the report of the
Working Group).  The author of a communication would have to
prove to the Committee that all domestic remedies had been
exhausted.  Venezuela was in agreement regarding the meaning of
article 22 of the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment.

121.    Cuba noted that a prerequisite for admissibility
should be the exhaustion of the domestic remedies available,
discarding the view in the report of the Working Group, that
that requirement should not be the rule where "domestic
remedies were unreasonably prolonged".8/ 

122.    Morocco recommended the identification and analysis of
criteria for determining that domestic remedies were
unreasonably prolonged.

123.    Italy noted that a communication might be brought
under the optional protocol only after the exhaustion of
domestic remedies, or when, in the Committee's judgement, they
had taken too much time, or when they were not accessible
without danger to the petitioner's life and health.

124.    Regarding the second part of element 9 (f), Cuba
stated that at the time of examination, a communication could
not be under consideration under other human rights procedures,
thus avoiding the repeated submission of communications already
examined by other United Nations bodies. 

125.    Spain did not consider it appropriate for the
Committee to be able to find admissible a communication being
examined under another international procedure where it
considered the procedure unreasonably prolonged, since that
could create friction between the various international human
rights bodies and would involve judging the work of those other
bodies.

126.    Austria and Denmark noted that further discussions
would be required on whether the Committee should actually be
granted the power to decide on the reasonableness of the
duration of proceedings before other international bodies. 
Denmark suggested that the concrete circumstances of a specific
case could also constitute a violation of other human rights
conventions, in addition to a violation of the Convention on
the Elimination of Discrimination against Women.  It was
therefore possible that the various communications procedures
under United Nations conventions might overlap.  Furthermore,
Denmark stated that a communication that had already been
examined under another international procedure should
automatically be declared inadmissible.

127.    Mexico referred to the report of the Working Group 9/
and noted that the requirements under other communications
procedures corresponding to other human rights instruments had
undoubtedly demonstrated their effectiveness.  No communication
should be found admissible if it related to a matter which had
been or was being examined under another procedure, including
at the regional level, as indicated in the reply to the
Secretary-General's first consultation, without regard to the
time taken by that procedure.  In that regard, Mexico agreed
completely that the Committee had no power to "judge the work
of other bodies" and, accordingly, that the formulation
contained in the International Convention on the Protection of
the Rights of All Migrant Workers and Members of Their
Families, or that contained in the Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment,
should be adopted.

128.    The Danish Women's Society noted that the words
"unreasonably prolonged" needed to be clarified.  It also
suggested that it might be advisable to leave it to the
Committee to decide whether the period had been unreasonably
prolonged.

129.    Italy stated that communications regarding procedures
already under way must be excluded as an application of the
principle ne bis in idem.

130.    The Council of Europe commented on the question of the
coexistence of various international complaints mechanisms.  It
noted that questions might arise about the coexistence of a
complaints mechanism under the optional protocol and the
complaints system under ECHR.  Element 9 (f), if followed,
would make it possible for the Committee to examine a matter
that had previously been considered under another international
procedure.  Reference was made to the declarations or
reservations that had been made by a number of Council of
Europe member States, Parties to ECHR, in respect of article 5
(2) of the Optional Protocol to the Covenant on Civil and
Political Rights, so as to exclude subsequent examination of a
considered matter under different international procedures.  It
was therefore considered advisable to avoid such a situation
under the optional protocol to the Committee on the Elimination
of Discrimination against Women, for example, by taking up the
wording proposed in the report of the Working Group, 10/  which
was also the essence of article 27(1)(b) of ECHR.

131.     The Council of Europe noted that another issue of
coexistence had been considered in the context of drawing up
the recent Additional Protocol to the European Social Charter: 
a reporting system with a complaints system.  In that context,
so that all parties to the Charter were kept informed of
developments occurring within the complaints system, they were
to be notified of collective complaints declared admissible. 
In addition, parties to the Protocol might submit comments on
the complaints.

Element 9 (g)

        "(g)The communication would be inadmissible if the
    author, within a reasonable period, failed to provide
    adequate substantiating information."

132.    Mexico noted that in common with other admissibility
requirements or criteria, the time limit for the submission of
communications, contrary to the indication in the report of the
Working Group, 11/ where "it was suggested that the Committee
might have this responsibility", should be established in the
optional protocol itself, as in the case of other regional and
international communications procedures.

133.    Turkey expressed a preference for a six-months' time
limit, as opposed to three months.  Time limits should be
specified in the optional protocol, rather than left to the
discretion of the Committee.

134.    Additional requirements of admissibility, in the view
of Cuba, should be the following:

    (a) The object of the communications must not be
incompatible with the principles of the Charter of the United
Nations;

    (b) Communications would be admissible if they revealed a
persistent pattern of open and reliably proven violations of
human rights.  They could be found admissible where they were
submitted by a person stating that she was a victim of human
rights violations, or, failing that, by such a person's family
members;

    (c) No communication with openly political motives, or
references which the State in question found insulting, should
be found admissible;

    (d) There should be compliance with the principles of
objectivity and justice, and a reliable and well-founded
source;

    (e) Communications from the mass media should not be
accepted; and

    (f) A time limit should be established for the
admissibility of communications without the use of such
ambiguous expressions as "reasonable period", which by their
nature were open to subjective interpretation.

135.    China proposed the addition of a new element 9 (h), to
read:  "The communication should be in compliance with the
principles of objectivity and impartiality, and should include
information on legal remedies or reparation undertaken by the
respective State party".

136.    Italy recommended that a one-year limit be established
for submission of a communication from the moment of the
decision of last instance, or of refusal at the national level
to act on the matter, except in cases of repeated violations or
of a different and justified assessment by the Committee. 
Panama recommended that the communication should be submitted
within six months of the date on which the person(s) whose
rights had allegedly been violated had been notified of the
final decision.

137.    Mexico considered it necessary to discuss the
appropriateness of establishing a time limit for the submission
of communications; in that regard, article 14, paragraph 5, of
the International Convention on the Elimination of All Forms of
Racial Discrimination was of particular relevance.

138.    Panama recommended that the petition must contain the
name, occupation, nationality, domicile and signature of the
person(s) or of the legal representative of the entity
submitting the communication.  It was for the Committee to
determine whether or not domestic remedies had been exhausted
on the basis of the information provided by the parties
involved, subject to the above requirements.  Unawareness of
domestic remedies must not be a factor in the Committee's
finding a communication admissible or not, as "ignorance of the
law was no excuse".  It was extremely important for the
communication to comply with the principles of objectivity and
justice.

Element 10

    "10. Pending examination of a communication, the Committee
    should have the right to request that the status quo be
    preserved, and a State party should give an undertaking to
    that effect, in order to avoid irreparable harm.  Such a
    request should be accompanied by information confirming
    that no inference could be drawn that the Committee had
    determined the merits of the communication."

139.    China suggested the deletion of element 10 because it
was ambiguous.

140.    Cuba did not consider it appropriate to confer on the
Committee the power to request a State party to take interim
measures.  In the final instance, it could recommend measures
that the State would take at its own discretion.

141.    Spain and Panama noted that the question of interim
measures should be dealt within the rules of procedure of the
Committee, which would allow the Committee more flexibility in
the practical application of such measures.

142.    Panama also noted that the recommendations of a
committee that monitored the implementation of an international
convention ratified by a State must gradually acquire
authority, in many cases transcending their scope as mere
recommendations, as was the case of the Universal Declaration
of Human Rights. There were two stages at which the Committee
might adopt interim measures:  when the admissibility of the
communication was being considered and when its merits were
being examined.

143.    Luxembourg and Colombia supported the addition of the
innovative element covering interim measures leading to the
immediate cessation of the violation of a right; in the case of
Luxembourg, on condition that it was specified that the
Committee had the power to "recommend" interim measures, rather
than "request" them.  Mali noted that the Committee should have
the right to recommend interim measures and to monitor their
implementation.

144.    Turkey noted that the scope of interim measures needed
clarification; similarly, Denmark noted that the actual
intention of element 10 required further clarification.  The
Danish Women's Society noted that the words "status quo" should
be clarified so as to prevent inaccurate interpretations.

145.    Italy noted that cautionary interim measures should be
provided when there was a danger to the petitioner's life and
health.  In such a case, the Committee should be endowed with
urgent precautionary powers similar to those assigned to the
United Nations High Commissioner for Human Rights.

146.    With regard to the maintenance of the status quo,
Mexico commented that, as in other communication procedures,
when the State received a request from the Committee for
information in response to the communication, the situation did
change, but to the benefit of the applicant.  The wording
"pending examination of a communication, the Committee should
have the right to request that the status quo be preserved"
could be misinterpreted, and the harm or injury suffered by the
person as a result of the action or omission of the State would
continue if the Committee made such a request.

147.    Mexico further noted, with respect to the statement in
the Working Group's report 12/ that "in order to avoid
irreparable harm, the Committee should be empowered to take
urgent action where necessary", that it must be remembered that
the Committee's views, suggestions and recommendations were not
binding - a fact pointed out at the Working Group's own
meetings - and that no other human rights treaty-monitoring
body had the power to "take action", as had been suggested
during the debate.  For the same reasons, it could not be
considered appropriate to give the Committee the power to
include that or a similar provision in its rules of procedure. 
In no circumstances could such provisions, which conferred
powers or responsibilities on the Committee and, consequently,
obligations and responsibilities on States, be included in the
Committee's rules of procedure, which, as the name indicated,
should simply identify, stipulate and describe the Committee's
procedures and organization of work.

148.    Mexico also noted that it seemed inappropriate to give
the Committee the power to "request" the State party to take
measures, and perhaps even to "recommend" interim measures,
until it had completed its examination of the communication and
reached its conclusions.

Element 11

    "11. While the State party would be informed
    confidentially of the nature of the communication, the
    author's identity would not be revealed without that
    persons's consent.  The State party would, within a
    specified period, provide replies or information about any
    remedy.  While the process of examination continued, the
    Committee would work in cooperation with the parties to
    facilitate a settlement which, if reached, would be
    contained in a confidential report of the Committee."

149.    China suggested revising the first sentence of element
11 to read:  "The State party would be informed confidentially
of the communication.  The author's identity would also be
revealed to the State party".  China suggested that the second
sentence be revised to read:  "The State party would, within a
specific period, submit to the Committee written explanations
or statements clarifying the matter and the remedy, if any,
that may have been taken by the State".

150.    Turkey noted that the confidentiality or transparency
of the treatment of the communication, the conduct of
procedures and the Committee's report had to be discussed and
clarified.

151.    Chile noted, with regard to confidentiality, that
human rights norms viewed the right to due process as a human
right and that one important element of that right was that the
examination of a case must be subject to public scrutiny. 
Chile therefore believed that, in principle, the Committee
should have sufficient powers to be able to order
confidentiality in certain specific cases, depending on the
circumstances.  That was another area that the Government would
leave to the Committee's discretion.

152.    South Africa, Italy and Cuba noted that the State
party would be informed confidentially of the nature of the
communication.  Italy continued that the communication was to
be brought to the attention of the State party concerned. 
Panama said that the State party must be informed in full about
the communication so that it was aware of the details of the
problem and could take the necessary remedial action.  Mexico
noted that communications submitted to the Committee must be
brought to the attention of the State party concerned, as
established in other similar instruments such as the Optional
Protocol to the International Covenant on Civil and Political
Rights and the Convention against Torture.

153.    Concerning the confidentiality of the identity of the
author, Cuba, Turkey, Mexico and Spain noted that the identity
of the author(s) would need to be revealed to the State party. 
South Africa, Italy, Spain and Panama stated that the author's
identity would be not be revealed without the person's prior or
express consent.  Turkey emphasized that the strength of an
optional protocol lay in the fact that no individual or group
needed to be identified as complainant, thus reducing the risk
of ongoing victimization of those affected.  However, the
identity of the author would need to be revealed to the State
party to enable it to investigate the allegations, assume its
responsibilities and initiate remedial action.  Cuba and Spain
stated that only with knowledge of the author's identity would
the State party be able to provide the Committee with complete
information.  Spain added that, in exceptional cases, it should
be possible not to disclose the author's identity to the State
party.  Italy added that the identification of the plaintiff
was required, unless such identification would endanger the
plaintiff's health or life.  Denmark noted that a provision to
withhold the plaintiff's identity without her or his consent
would make the defence of the State most difficult.  Cuba added
that the plaintiff's name should not be withheld even in
exceptional cases.

154.    Cuba concluded that, to ensure greater transparency in
the Committee's evaluation of communications, it would be
important for a representative of the State party to be
present.  Panama was of the view that, when the Committee was
in the process of examining a communication, the parties
concerned should not be present.  Italy stated that the State
party could not participate in the Committee's hearings unless
the complainant or her representative was also present.  The
parties could be questioned by the Committee, including orally,
as long as there was respect for the principle of cross-
examination.  The parties could be assisted by a legal
consultant or by a person of their choice.

155.    Spain, Italy and Mexico supported the inclusion in the
protocol itself of a deadline for the State to respond or
provide information on the communication, as was done in
article 4, paragraph 2, of the Optional Protocol to the
International Covenant on Civil and Political Rights.  Spain
and Italy considered that six months - the period established
in the latter instrument - was appropriate, since that gave the
State party sufficient time to conduct the necessary
investigations.  Italy added that failure to respond would not
be made public.  Panama suggested that the period should be
three months from when the State was informed of the complaint
submitted to the Committee.  Colombia recommended a time period
of three to six months for the State party to present
information or replies relating to a communication.  Mali
stated that the communication should be dealt with within three
months.

156.    Spain considered that the mediatory aspect of the
Committee's intervention should be strengthened, since that
kind of intervention was particularly suited to the nature of
some provisions of the Convention.  That aspect should be
developed in greater detail in the protocol itself.  Italy
noted that any decision of the Committee was to be preceded by
an attempt at agreement or mediation (dialogue with the State
party) after full argument by both sides.

157.    Mexico further noted that the matter of the
confidentiality of the procedure and of the Committee's
eventual findings was closely related to paragraph 15 of
suggestion 7.

Element 12

    "12. The Committee would examine communications in the
    light of all information provided by the State party, or
    by the author or received from other relevant sources. 
    All such information would be transmitted to the parties
    for comment.  The Committee would set its procedures, hold
    closed meetings when examining communications and, as a
    whole Committee, adopt and transmit views and any
    recommendations to the parties.  While examining a
    communication, the Committee might, with the agreement of
    the State party concerned, visit its territory."

158.    China suggested that the first sentence of element 12
be revised to read:  "The Committee shall consider
communications received under the present protocol in the light
of all written information made available to it by the
individual and the State party concerned."  China suggested
that the third sentence be revised to read:  "The Committee
shall hold closed meetings when examining communications under
the present Protocol."  China also suggested the deletion of
the fourth sentence, and that the fifth sentence be revised to
read:  "The Committee shall forward its views to the State
party concerned and to the individual".

159.    With regard to information to be used by the
Committee, Cuba, Morocco, Italy and Mexico stated that the
Committee would have to work with the information contained in
communications and that provided by the State party or the
author.  Cuba added that it would be unreasonable to attach any
value to the testimony of third parties.  Italy added that
recourse to "other sources" could only be permitted after
hearing the parties concerned.

160.  On the same point, Spain considered it appropriate for
the Committee to be able to examine communications in the light
of information provided by the plaintiff and/or the State party
and also information received from other relevant sources.  The
latter possibility might help to enhance the Committee's
intervention.  The information in question would have to be
made available to the parties concerned.

161.    Panama noted, on the question of whether or not the
Committee would examine communications in the light of
information received from other sources, that information
should come only from the interested party or the
representatives of that party.

162.    South Africa stated that the Committee would examine
communications in light of all information provided by the
State and/or author of the communication.  The Committee would
set up procedures, hold closed meetings when examining
communications, and adopt and transmit views and
recommendations to the parties.

163.    Turkey stated that the question of whether other
relevant information should be considered by the Committee
along with the communication and the observations submitted by
the State party needed to be further discussed.

164.    With regard to visits to the territory of the State
party, Cuba stated that it did not consider such visits
appropriate.  Mexico noted that such visits could be envisaged
only in the context of the procedure set forth in paragraphs 17
to 24 of suggestion 7.  At the same time, it must be made clear
that the Committee would be able to visit the territory of a
State party only if that was stipulated in the additional
protocol and only if, as all related instruments indicated, the
State party agreed.

165.    On the same point, Spain stated that, in principle, it
considered it inappropriate, in the context of a communications
procedure, for the Committee to visit the territory of a State
party that was in violation of the Convention, save in
exceptional cases.  There was therefore no need for the
protocol to refer specifically to that issue.  In any case, the
visit must take place only if the State party gave its consent. 
Panama suggested that the question of visits to the State party
while a communication was being examined could be dealt with in
the Committee's rules of procedure.

166.    South Africa and Mali stated that while examining a
communication, the Committee might, with the agreement/at the
invitation of the State party concerned, visit its territory.

Element 13

    "13. When the whole Committee considered that the
    communication had been justified, it might recommend
    remedial measures or measures designed to give effect to
    obligations under the Convention.  The State party would
    remedy violations and implement recommendations.  It would
    also ensure that an appropriate remedy (which might
    include adequate reparation) was provided.  It would also
    provide the Committee within a set period with details of
    the remedial measures taken."

167.    Turkey noted a lack of clarity in the usage of the
term "adequate reparation".

168.    Venezuela, referring to the Working Group's report 13/
and the wording "... appropriate remedy, including, if need be,
adequate reparation", proposed the following wording: 
"relevant, proportional measures".

169.    Cuba believed that the Committee's powers should be
limited to suggesting or recommending to a State party that it
take certain measures.  Such measures would, at all times, have
to be consistent with the Convention and with the internal
legislation of the State concerned.

170.    Spain considered that the protocol should refer to the
possibility that the Committee might recommend the adoption of
certain measures when it deemed the complaint to be justified. 
Such measures would have to be set forth in a recommendation
that emphasized the mediatory nature of the Committee's
intervention.

171.    Morocco noted that such a procedure might undermine
the independence of State parties' judicial systems and the
Committee's views and recommendations should be of a general
nature and not legally binding on States parties, since it was
up to each State party to judge whether it should take remedial
measures.

172.    Mexico noted that, while the idea of incorporating the
concept of reparation and of giving the Committee the power to
"recommend remedial measures or measures designed to give
effect to obligations under the Convention" seemed a valid one,
it must be made quite clear that Committee could only make
"recommendations" to States, as indicated in the Working
Group's report. 14/  It suggested looking at the formulas
adopted in the instruments corresponding to other committees,
including the Optional Protocol to the International Covenant
on Civil and Political Rights (articles 5 (4) and 6) and the
Convention against Torture (article 22 (7)).

173.    Panama stated that, while it was true that the
Committee was not a judicial body, it was also true that its
recommendations must be considered and adopted by State parties
which had ratified the Convention.  Both the recommendations of
the Committee and the provisions of the Convention would always
be subject to the international legal principle of pacta sunt
servanda.  When a State party ratified a convention, it bound
itself to comply with the recommendations of the corresponding
treaty-monitoring body.  The Permanent Court of International
Justice had ruled that it was a principle of international law
that the breach of an undertaking brought with it the
obligation to make reparation.  Reparation was thus essential
to the proper application of an agreement.  Article 27 of the
Vienna Convention on the Law of Treaties established the
precedence of international law over internal law quite clearly
when it stipulated that a party could not invoke the provisions
of its internal law as justification for its failure to perform
a treaty, without prejudice to article 46 of that Convention.

174.    Spain noted that it would also be appropriate to
establish a six-month period for the State party to report on
the measures taken to implement the Committee's
recommendations.  Panama believed that time limits should be
set and, given the experience with other procedures, felt that
anywhere between three and six months was appropriate.

Element 14

    "14. The Committee should have the power to initiate and
    continue discussions concerning such measures and remedies
    and have the power to invite the State party to include
    such information in its reports under article 18 of the
    Convention."

175.    Cuba noted that it did not consider either a follow-up
process or the inclusion of such information in periodic
reports necessary.

176.    Spain supported the inclusion of a reference to the
need for follow-up on a situation, once an individual procedure
had been concluded.

177.    Panama noted that it was of the greatest importance
that there should be follow-up on the implementation by each
State party of legislative or other measures prohibiting
discrimination against women.  The entire follow-up process
should be part of the reporting system.

178.    Mexico suggested that, in accordance with the
precedents established by other Committees and existing
communications procedures, the Committee should include in the
report containing its conclusions on a case an invitation to
the State party to indicate in its periodic reports (article 18
of the Convention) any remedial measures taken.

179.    Mexico also noted that, in the interests of expediting
the work of the Committee, it did not consider it appropriate
to extend the proceedings in any individual case.

Element 15

    "15. The Committee would, in its report, summarize the
    nature of communications received, its examination of
    them, the replies and statements of the States parties
    concerned and its views and recommendations."

180.    Mexico took note of the observation of the Chairperson
of the Committee on the Elimination of Discrimination against
Women that the report of the Committee was not confidential.

181.    Cuba noted that, since the consideration of the
communication was confidential, the information that the
Committee provided in its annual report could not violate that
principle, since the annual reports were made public.

182.    Spain suggested that it was very important that the
annual report of the Committee on the Elimination of
Discrimination against Women should contain information about
work carried out in implementation of the protocol.  The
publication of the results of the proceedings was an element
that would increase their effectiveness.

183.    Panama considered that the Committee should summarize
the communications received, its consideration of those
communications, the replies and statements of the States
parties concerned and the views and recommendations.  With
respect to the latter, their dissemination and compilation was
essential in order to lay the foundations for jurisprudence on
the human rights of women.

184.    Italy suggested that the Committee make its decision
within one year of receipt of the communication.  The decision
should be published.

Element 16

    "16. The Committee would have the power to delegate to a
    working group its responsibilities under this section. 
    The working group would report to the Committee and the
    Committee alone would have the power to adopt views and
    make recommendations."

185.    China, Spain and Panama noted that that point should
be dealt with in the rules of procedure instead of in the
optional protocol itself.  Spain added that that was an
organizational matter that should not be addressed in the
protocol.

186.    Italy noted that the proceedings must be prepared
exclusively by the Committee, which could not delegate that
task to a working group.

187.    Cuba stated that the objectives and terms of reference
of the working group that would have responsibility for
selecting and organizing the documentation to be considered by
the Committee should be clearly spelled out.  The membership of
the working group should be selected on the basis of equitable
geographical distribution and should not exceed five experts.

188.    Mexico commented that the Committee had the authority
to establish one or several working groups.  Nevertheless, it
agreed that the authority which had been conferred on the
Committee, and that which might be conferred on it under the
optional protocol, could not be delegated; therefore, the
Committee as a whole was responsible for its decisions.

189.    Mexico added that, notwithstanding the foregoing,
provision should be made, as in other similar instruments, for
the possibility that, when one or more members of the expert
committee did not agree with one of the Committee's decisions,
they could express in the body of the Committee's report their
"dissenting view" together with a statement of the grounds on
which it was based.

190.    Furthermore, Mexico, in adding a general comment
concerning the discussions in the Working Group and some
elements found in the text of the report, stated that, even
though giving flexibility to and streamlining the work of the
Committee had some appeal, as far as the responsibilities of
States parties under the optional protocol were concerned, it
was important that those responsibilities should be clearly
spelled out in the text of the protocol itself, inasmuch as it
was a legally binding instrument.

Element 17

    "17. If the Committee received reliable information
    indicating a serious or systematic violation by a State
    party of rights under the Convention or of a failure to
    give effect to its Convention obligations, the Committee
    should have the right to invite that State party to
    cooperate in examining the information and in submitting
    observations on it.  After considering those observations
    and any other relevant information, the Committee should
    have the power to designate one or more of its members to
    conduct an inquiry and report urgently to the Committee."

191.    China stated that it did not agree to the
establishment of an inquiry procedure in an optional protocol
to the Convention.

192.    Cuba noted, with regard to elements 17 to 22, that it
had previously expressed its serious objections to the inquiry
procedure as a whole.

193.    Morocco stated that the inquiry procedure seemed to
undermine State sovereignty.

194.    Spain stated that the inquiry procedure should be
reserved for cases of serious and systematic violations of
human rights.  In such cases, the Committee on the Elimination
of Discrimination against Women should be able to act
proprio motu.  Spain understood, nevertheless, that in the
Working Group, many States had expressed some hesitation about
the appropriateness of including such a procedure in the
protocol because they believed the matter required further
study.

195.    Panama noted that the inquiry procedure in the
optional protocol to the Convention would be a mechanism for
dealing with serious, systematic and widespread violations of
the human rights of women.  The investigation of such cases
would support the communications submitted to the Committee. 
Taking into account the views in element 17 as they were
currently drafted, Panama believed that it should be made clear
that the intention was not that a complaint would not be
admitted unless the violation complained of was serious or
systematic.  Panama noted with concern the views contained in
element 17.  The Committee should be able to investigate
complaints of violations of rights protected by the Convention
when it believed a violation had occurred, in accordance with
the Convention and the Committee's rules of procedure.  The
Committee should also be informed urgently of serious and
systematic violations of the Convention, so that it could take
appropriate measures.

196.    Colombia considered the inquiry procedure appropriate
when there were situations of systematic and deliberate gender-
based violations of rights and violence.

197.    Austria noted that the model for the proposal of an
inquiry procedure was article 20 of the Convention against
Torture.  It expressed the opinion that such a procedure could
supplement an individual complaints procedure.  The experience
of the Committee against Torture suggested that an inquiry
procedure allowed an international body to address a broader
range of issues than it was able to address in the context of
individual communications.  Also, an inquiry procedure provided
the international body with an opportunity to recommend
measures to States for combating the structural causes of
violations.  Such a procedure could guarantee even more
effective implementation of the Convention.

198.    Austria concluded that discussion on an inquiry
procedure was likely to delay the decision on an optional
protocol.  If that were the case, Austria suggested that the
question of an inquiry procedure be provided for in a further
optional protocol.

199.    Denmark and the Danish Women's Society regarded the
inquiry procedure as an important part of the responsibilities
of the Committee under an optional protocol.  They commented
that it would strengthen the Convention and give the Committee
the authority to act upon and investigate any information that
was brought to its notice on non-fulfilment of the obligations
of ensuring the rights in the Convention.  The inquiry
procedure could also be regarded as an important supplement to
the country reporting procedure.

200.    Mexico reiterated that the inquiry procedure could
only be initiated subsequent to a communication and therefore,
the same requirements and procedures as were envisaged for the
communications procedure should apply to it.

201.    Italy noted that if it were necessary to carry out an
inquiry the Committee should have the same powers as a
rapporteur in the area of human rights.

202.    South Africa reiterated the text of elements 17 to 23
of suggestion 7.

Element 18

    "18. Such an inquiry would be conducted with the
    cooperation of the State party, and might, with its
    agreement, include a visit to its territory."

203.    Panama stated that, if a State party did not
cooperate, it would be necessary to have recourse to such other
mechanisms established in international treaty law as the
Committee should decide to use.  As for participation in the
inquiry, only the Committee, the State party concerned and the
person or persons alleging a violation of their rights should
participate.

204.    The Danish Women's Society recommended that an
investigation should continue even if the State party did not
cooperate.  The Committee should have the authority to continue
and collect information from any number of sources if it deemed
it necessary.

205.    Mexico stated that it should be clearly understood
that the inquiry procedure could take place only with the
cooperation of the State party.

Element 19

    "19. Following the examination of the findings, which
    would be transmitted to the State party, the latter would
    have a set period in which to make observations in
    response."

206.    Mexico and the Danish Women's Society supported having
a set period of time for submission of observations.  Denmark
and the Danish Women's Society suggested that the Committee
determine that set period.

207.    Panama noted that it should be made clear that States
parties must cooperate and provide the information requested by
the Committee.  However, in cases of serious, systematic and
widespread violations of the Convention, the Committee could
request an on-site investigation.

Element 20

    "20. The inquiry would be conducted confidentially and at
    all stages with the cooperation of the States parties."

208.    Mexico shared the view contained in the report of the
Working Group 15/ that only the State party concerned would
participate in the inquiry, not "States parties".

Element 21

    "21. The Committee would encourage the State party to
    discuss the steps taken by it as a consequence of the
    inquiry.  Those discussions might be continued until a
    satisfactory outcome was achieved.  The Committee might
    ask the State party to report on its response to the
    inquiry in its report under article 18 of the Convention."

209.    As it had indicated with regard to the communications
procedure, Mexico did not believe it was appropriate to
continue the procedure as envisaged in paragraph 21 of
suggestion 7, since that might result in there being no end to
the procedure if the Committee found the State's response to be
unsatisfactory. 

210.    The Danish Women's society recommended that the
Committee also have an evaluation and monitoring function in
cases in which there was a satisfactory conclusion, which would
prevent reoccurrences of violations.

211.    Austria and Liechtenstein endorsed the procedure
proposed in element 21.  Austria noted that the lack of an
appropriate follow-up procedure in the optional protocol to
ICCPR was considered as a weakness.  Having such a follow-up
procedure could lead to more effective implementation of the
Convention.

Element 22

    "22. After completing all those steps the Committee would
    be empowered to publish a report."

212.    Spain supported the publication of a report even
against the wishes of the State concerned.

213.    Panama noted that, in principle, the State party
should be informed that a report of the Committee would be
published, but its approval was not necessary, since one of the
purposes of the reports was to establish a body of
jurisprudence with respect to the human rights of women.  This
could be accomplished only by publicizing the Committee's views
and recommendations on the communications received, which would
be set forth in the report.

Element 23

    "23. When ratifying or acceding to the optional protocol,
    the State party would undertake to assist the Committee in
    its inquiries and to prevent any obstacles to or
    victimization of any person who provides the Committee
    with information or assists it in its inquiries."

214.    Panama noted that, once a State ratified the optional
protocol, it assumed the obligation to cooperate with the
Committee.

Element 24

    "24. States parties would publicize the protocol and its
    procedures, the Committee's views and any recommendations
    concerning a communication received or inquiry conducted."

215.    China and Spain suggested that that point should be
dealt with in a resolution instead of in the optional protocol. 
In addition, Spain, Costa Rica, Colombia, LACWHN and the Danish
Women's Society underlined the importance of the widest
possible dissemination of the protocol and the results of its
implementation.  The Danish Women's Society encouraged
Governments to do all they could to make the protocol known to
their citizens once it was adopted and ratified.  Colombia
added that the Committee must be enabled to disclose cases,
except for names and other essential details, because that
would help to encourage States parties to give greater
protection to women's rights and prevent violations.

216.    Panama noted that the optional protocol should be
given wide publicity in order to guarantee its effectiveness in
each State party that ratified and acceded to it.  A provision
to that effect should be included in the protocol itself.

Element 25

    "25. The Committee would develop rules and procedures that
    would enable it to conduct its work fairly, efficiently
    and, as necessary, urgently."

217.    Panama noted that it should be stated explicitly in
the optional protocol that the Committee could establish its
own rules of procedure, taking into account matters not settled
in the protocol.

Element 26

    "26. Meeting time of not less than three weeks per annum
    and resources, including expert legal advice, would be
    made available to enable the Committee to conduct its work
    under the Convention."

218.    China and Panama noted that the meeting time for the
Committee should not be established in the optional protocol to
the Convention but should be dealt with in the Committee's
rules of procedure.  China suggested the deletion of element
26.

219.    Spain considered that organizational matters should
not be dealt with in the protocol itself.  If they were, it
would prove very difficult to introduce any changes.  Spain
wished, nevertheless, expressly to support the strengthening of
the position of the Committee on the Elimination of
Discrimination against Women, since its role was essential.

220.    Concerning the Committee's need to have legal advice
available, Spain noted that although it was appropriate for
such advice to be provided, it was to be hoped that the
Committee's involvement in the implementation of the protocol
would have direct results in terms of the fields of
specialization of the individuals elected as members of the
Committee.  Panama noted, regarding the composition of the
Committee, that it should include not only lawyers but also
professionals in other social sciences, in order to create a
multidisciplinary Committee which would take its decisions on
the basis of considerations of equity. 

221.    Spain noted that, within the available resources, an
effort must be made to increase the Committee's funding and
meeting time.  Panama noted that, as for the arrangement for
financing the Committee, funding should continue to be provided
from the regular budget of the United Nations.  Denmark stated
that the term "resources" had to be given more specific
content.  Turkey stated that rules were needed on who would
bear the cost of proceedings.  Venezuela considered that it was
important to determine who would be responsible - whether the
United Nations or States parties - for costs related to the
communications and inquiry procedures, taking into account that
all human rights treaty bodies were funded from the regular
budget of the United Nations.  NCJM noted that the improvement
of the supervisory machinery of human rights instruments
necessarily had financial implications.

222.    The Danish Women's Society fully supported element 26. 
It noted that resources of a financial and legal character, as
well as an increase in working time for the Committee, were
imperative for the optional protocol to become workable.  The
Society requested that Governments fulfil those needs so as to
allow the Committee to be able to carry out its work.  With
regard to "resources", it recommended a more specific wording,
such as "financial resources".

223. NJCM expressed the view that the adoption of a complaints
procedure must not act to the detriment of the Committee's
other tasks.  If that requirement implied that extra facilities
must be made available to the Committee, then such facilities
should be provided.

224.    Mali stated that costs of proceedings should be the
responsibility of the author of the complaint, who should be
reimbursed if the complaint was found to have merit.

225.    Mexico considered it necessary to reiterate that:

    (a) The methods which could be used to strengthen the
capacity of the Committee to fulfil its duties and
responsibilities under the optional protocol should be studied
and discussed in detail.  Since the Committee currently had
such a large backlog of reports that it had decided to amend
article 20 of the Convention, and since pending the entry into
force of that reform, the Committee had requested the
Conference of the States Parties and the General Assembly to
approve an additional annual session of three weeks, the
additional time required to fulfil the duties and
responsibilities that the optional protocol would entail should
be evaluated.  Would three sessions of three weeks each be
required?

    (b) Clear information should therefore be made available
on the administrative and budgetary implications of the
activities which the Committee would need to undertake to
implement the proposed optional protocol, taking into account
the human (advisory and technical support staff) and financial
resources (conference servicing and travel) for:

    (i)  sessions devoted to the communications procedure;

    (ii)  activities arising from the inquiry procedure.

It would be worthwhile to analyse how the costs of implementing
the optional protocol would be apportioned.  One formula that
could be examined, which was already used in the expert
committees established by the Convention on the Elimination of
All Forms of Racial Discrimination and the Convention against
Torture and other Cruel, Inhuman or Degrading Treatment or
Punishment, provided that "States parties shall be responsible
for the expenses of the members of the Committee while they are
in performance of Committee functions." (article 8, paragraph
6, and article 17, paragraph 7, respectively).

    (c) The procedure that would be established under the
optional protocol should be clear and non-controversial,
avoiding any element that could cause doubt about its
objectivity and lend itself to misinterpretation.

    (d) Any mechanism devised to follow up cases which the
Committee examined in implementation of the optional protocol
should be provided for in the text of the protocol itself, in a
way that made clear the commitments assumed by the States
parties to the protocol, the duties and powers of the Committee
and the responsibilities of its members.

Element 27

    "27. Procedures for the signing, ratification, accession
    and entry into force of the protocol should be
    prescribed."

226.    Spain supported the ratification of the protocol but
understood that its entry into force should not be tied to an
excessively high number of ratifications.  It was understood
that the operation of the protocol itself and the quality of
the Committee's activities could constitute an important
incentive for States which were not parties to ratify or accede
to it.

227.    Cuba was of the view that the greatest possible number
of ratifications should be required for the protocol to enter
into force.

Element 28

    "28. No State-to-State communication procedure should be
    included and no reservations permitted."

228.    Spain stated that, although it would have preferred
reservations to be expressly prohibited, it believed that it
was premature at the current stage to take a final decision on
the matter.  Cuba noted that the procedure for entering
reservations to the optional protocol should be given careful
consideration.

229.    Cuba noted that under no circumstances did it favour a
State-to-State communications procedure.  Chile had no
objection in principle to allowing the Committee to receive
communications from States.  Experience had shown, however,
that procedures of that kind were unsuccessful since there was
an understandable reluctance on the part of States to use this
right because they believed, perhaps mistakenly, that it could
be harmful to other States.

230.    Chile stated that, in order for the protocol to
produce the desired effect, it was essential that those
procedures should not be optional.  In other words, procedures
could not be established so that a State which ratified the
protocol had the right not to be bound by any one of them.  The
two procedures together could make a difference in terms of
compliance with the commitments of the Convention.


                             Notes

    1/ Official Records of the Economic and Social Council,
1996, Supplement No. 6 (E/1996/26), chap. I, sect. C.

    2/ Ibid., annex III.

    3/ Official Records of the General Assembly, Fiftieth
Session, Supplement No. 38 (A/50/38), chap. I, sect. B.

    4/ See Official Records of the Economic and Social Council,
1996, Supplement No. 6 (E/1996/26), annex III, para. 36.

    5/ Ibid., para. 37.

    6/ Ibid., para. 39.

    7/ Ibid., para. 47.

    8/ Ibid., para. 48.

    9/ Ibid., paras. 48-50.

    10/ Ibid., para. 51.

    11/ Ibid., para. 52.

    12/ Ibid., para. 53.

    13/ Ibid., para. 75.

    14/ Ibid., paras. 71-73.

    15/ Ibid., para. 95.


                             -----
    	

 


This document has been posted online by the United Nations Department of Economic and Social Affairs (DESA). Reproduction and dissemination of the document - in electronic and/or printed format - is encouraged, provided acknowledgement is made of the role of the United Nations in making it available.

Date last updated: 06 December 1999 by DESA/DAW
Copyright 1999 United Nations