98-01822 (E)
110298
* E/CN.6/1998/1.
United Nations
E/CN.6/1998/7
Economic and Social Council
Distr.: General
19 December 1997
Original: English
Commission on the Status of Women
Forty-second session
2-13 March 1998
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
Annotated comparison of the draft optional protocol and the
amendments proposed thereto with the provisions of existing
international human rights instruments
Report of the Secretary-General
Contents
Paragraphs
Page
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1–4
3
Articles 1 and 2: Competence of the Committee and standing . . . . . . . . . . . . . . . . . . .
5–15
3
Articles 3 and 4: Admissibility criteria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
16–37
4
Article 5: Interim measures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
38–39
7
Article 6: Reference of communications to a State party . . . . . . . . . . . . . . . . . . . . . . . .
40–46
7
Article 7: Consideration of communications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
47–50
8
Article 8: Remedies for violations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
51–52
8
Article 9: Follow-up mechanism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
53
8
Article 10: Inquiry procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
54–58
8
Article 11: Measures taken and follow-up . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
59
9
Article 12: Effective exercise of the right to submit communications . . . . . . . . . . . .
60
9
E/CN.6/1998/7
2
Article 13: Annual report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
61
9
Article 14: Publicity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
62
10
Article 15: Rules of procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
63
10
Article 16: Meeting time . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
64
10
Article 17: Ratification procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
65–67
10
Article 18: Entry into force . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
68
10
Article 19: Federal States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
69
10
Article 20: Reservations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
70
11
Article 21: Amendments to the Protocol . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
71
11
Article 22: Denunciation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
72
11
Articles 23 and 24: Depository functions of the Secretary-General . . . . . . . . . . . . . .
73
11
E/CN.6/1998/7
3
Introduction
Articles 1 and 2: Competence of the
1.
The Commission on the Status of Women, in its
resolution 41/3 on the elaboration of a draft optional protocol
to the Convention on the Elimination of All Forms of
Discrimination against Women, requested the Secretary-1
General to submit to the Commission at its forty-second
session a report containing an annotated comparison of the
draft optional protocol and the proposed amendments thereto
with the provisions of existing international human rights
instruments, taking into account the report of the Working
Group submitted to the Commission at its forty-first session.
2.
In the present report, articles of the draft optional
protocol after completion of the first reading (hereinafter2
referred to as “the draft OP”) and alternative texts of those
articles, as applicable, are compared with the provisions of
four international human rights instruments whose procedures
are similar to those envisaged in the draft OP. These are the
first Optional Protocol to the International Covenant on Civil
and Political Rights (“the first OP”), articles 20 and 22 of the3
Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (CAT), article 14 of the4
International Convention on the Elimination of All Forms of
Racial Discrimination (CERD)
and article 77 of the
5
International Convention on the Protection of the Rights of
All Migrant Workers and Members of Their Families
(MWC). The Migrant Workers Convention has not yet6
entered into force. Aspects of both a formal and a substantive
nature are noted. Reference is also made, where applicable,
to the rules of procedure and practice of the respective treaty
bodies and to the report of the Secretary-General containing
a comparative summary of existing communications and
inquiry procedures and practices under international human
rights instruments and under the Charter of the United
Nations (E/CN.6/1997/4), which was before the Commission
at its forty-first session (hereinafter referred to as “the
comparative summary”).
3.
Several of the articles of the draft OP, or parts thereof,
remain in square brackets. The following annotations do not
identify bracketed or non-bracketed text. Instead, the text
elements of the draft OP and alternatives, as applicable, are
compared with existing instruments.
4.
The present report reflects comments on the draft
optional protocol received from the Office of the United
Nations High Commissioner for Human Rights and from the
Treaty Section of the Office of Legal Affairs (on articles 17
to 24).
Committee and standing
5.
From a formal point of view, the draft OP addresses in
two separate articles (articles 1 and 2) the establishment of
the competence of the Committee on the Elimination of
Discrimination against Women (“the Committee”) to handle
communications (article 1) and the question of standing – that
is, who has the right to submit a communication (article 2).
The other four international human rights instruments
combine both aspects in a single article.7
6.
Article 1 of the draft OP can be compared most directly
with the first part of article 1 of the first OP. In both cases,
the communications procedure is contained in a separate
instrument – a procedural protocol – whereas in the case of
CERD, CAT and MWC, the communications procedure forms
part of the main instrument. In the latter case, States parties
to the main instrument recognize the treaty body’s
competence to receive and consider communications through
a declaration, rather than via ratification or accession. This
aspect was also discussed in the comparative summary.8
7.
Unlike the first OP, CAT and MWC, article 1 of the
draft OP does not spell out the fact that only States parties to
the Convention may become States parties to the OP, but
refers simply to States parties to the present Protocol. The
procedure for becoming a State party is covered in article 17
of the draft OP, which has a comparable equivalent in article
8 of the first OP. A provision common to all other instruments
(namely, that no communication shall be received if it
concerns a State party to the instrument which is not a State
party to the OP or which has not declared that it has accepted
the communications procedure) is not explicitly included in9
the draft OP, either in article 1 or under the draft OP’s
admissibility criteria. It may be noted that the Secretariat
receives
on
a
regular
basis
communications
from
complainants subject to the jurisdiction of States that are not
parties to, for example, the first OP. Such communications
cannot be received or considered by the Committee.
8.
A final text element in article 1 of the draft OP
concerning the submission of communications “in accordance
with article 2” has an equivalent in the opening clause of
article 2 of the first OP, by which the right to submit
communications is subject to the provisions of article 1.
9.
Article 2 of the draft OP and the alternative
formulations cover the question of standing; the requirement
that the complainant(s) claim a violation of a right or that the
State party has failed to give effect to its obligations under the
Convention; the question of jurisdiction; and the requirement
of exhaustion of domestic remedies.
E/CN.6/1998/7
4
10.
As to standing, article 2 of the draft OP and the
allege a violation of any of the rights set out in the Convention
alternative formulations address standing for individuals,
or that they are directly affected by the failure of a State party
groups or organizations as alleged victims, as well as for
to comply with obligations; or, alternatively, that the
individuals, groups or organizations with a sufficient interest
claimant(s) allege a violation of any of the rights set out in the
in the matter. All four comparable instruments specify that
Convention. Comparable instruments require that a violation
communications may be submitted by individuals; CERD
of rights be alleged in the complaint, but do not foresee failure
extends this right also to “groups of individuals”, and CAT
to comply by the State party as a separate basis for a
and MWC specify that communications may also be submitted
complaint.
“on behalf of individuals”.10
11.
The rules of procedure and practice of the Human
require that the claimant(s) be “under the jurisdiction” of the
Rights Committee, the Committee against Torture and the
State party in order for the Committee to receive a
Committee on the Elimination of Racial Discrimination have
communication. All existing instruments refer to the State
further clarified the meaning of these formulations and have
party’s jurisdiction with regard to the claimant(s). The first
established how and in what circumstances claims may be
OP, CAT and MWC require that the claimant(s) be “subject
brought by victim(s) or on their behalf, under the various
to [the State party’s] jurisdiction” and CERD that the
instruments. This is discussed in the comparative summary.
claimant(s) be “within its jurisdiction”.
11
None of the existing procedures contains explicit provisions
concerning the right of a claimant or claimants to be
represented
by counsel or
another duly designated
representative in the exercise of the right to submit a
communication, as the formulation in alternative to 2 (b) (i)
suggests. However, the rules of procedure and practice of the
treaty bodies make it clear that alleged victims may be
represented by duly designated representatives. This right to
representation means that technically an alleged victim uses
her right to submit a communication, but in practice the
communication is filed by her duly designated and authorized
representative, who thus speaks as the alleged victim. This
right to representation differs from the submission of
communications in instances where an alleged victim(s)
appear to be unable to submit a communication, or to duly
designate a representative. In such cases, treaty bodies have
accepted communications on behalf of a victim, but have
required the author to justify his/her acting on behalf of the
alleged victim(s). This is also discussed in the comparative
summary.12
12.
Article 2 of the draft OP and all the alternative
formulations establish the right of the claimant(s) to submit
communications, stating that “communications may be
submitted by ...”. In contrast, each of the four other
instruments approach the matter from the Committee’s
perspective, setting out the right of each treaty body to receive
and consider communications from the claimant(s). The first
OP contains both formulations, with article 1 establishing the
Committee’s right to receive and consider communications
and article 2 establishing the right of the claimant(s) to submit
communications.
13.
Two options are foreseen in article 2 of the draft OP and
alternative formulations as regards violation of rights/failure
to comply with obligations. They are that the claimant(s)
14.
Alternative 1, alternative 2 and the alternative to 2 (a)
13
15.
Alternatives 1 and 2 of the draft OP foresee the
exhaustion of domestic remedies as an additional condition
for the receipt of a communication. Other instruments address
this requirement under admissibility criteria
and, in each
14
case, further detail is provided as to possible exemptions from
the rule. The first OP refers to the criterion of exhaustion of
domestic remedies in articles 2 and 5.2 (b).
Articles 3 and 4: Admissibility
criteria
16.
Article
3
of
the
draft
OP
establishes
that
communications must be in writing and must not be
anonymous. No other comparable instrument presents these
two preconditions for admissibility of a communication in a
single article. The criterion of non-anonymity is expressly
contained in all other instruments.
Only the first OP
15
16
explicitly establishes that communications must be in written
form.
17.
Article 4 of the draft OP contains admissibility criteria
that require consideration and decision by the Committee
before it moves to a consideration of the merits of a complaint
and a decision with respect to the merits.
18.
Article 4 presents criteria of identical content in two
alternative formats. Paragraph 1 of alternative 1 contains a
criterion that needs to be assessed by the Committee before
admissibility is declared. Paragraph 2 of alternative 1
contains both criteria that make a communication prima facie
inadmissible and criteria that need to be assessed before a
decision on admissibility is made. Alternative 2 lists all
admissibility criteria under a single chapeau, without drawing
E/CN.6/1998/7
5
a distinction between prima facie inadmissibility and
declare a communication inadmissible. CERD has no
declaration of inadmissibility following examination.
comparable provision.
19.
Both alternatives incorporate a number of criteria that
24.
While alternative 1 of article 4 states that the Committee
are not found in comparable international instruments or in
“shall not declare a communication admissible unless it has
the rules of procedure of the respective treaty bodies with
ascertained ...”, the four existing instruments have a common
regard to communications. These criteria relate to
chapeau to the domestic remedies clause. This states that a
communications that are manifestly ill-founded or obviously
Committee “shall not consider any communication ... unless
politically motivated; and the questions of prior occurrence
it has ascertained ...”.
This formulation indicates the
and compliance with principles of objectivity.
distinction between prima facie inadmissibility and a
20.
Both alternatives also incorporate the issue of sufficient
substantiation of a claim. Insufficient substantiation is not
addressed in the first OP as a criterion of admissibility but is
addressed in the rules of procedure of the Human Rights
Committee. Rule 90 (b) requires, among other admissibility17
criteria, that a claim be submitted “in a manner sufficiently
substantiated”. The Human Rights Committee has noted that
25.
Existing instruments distinguish between factors that
“although an author does not need to prove the alleged
cause prima facie inadmissibility, on the one hand,
and
violation at the admissibility stage, he must submit sufficient
factors that must be examined in the light of information
evidence substantiating his allegation for purposes of
received, on the other, in order to determine the admissibility
admissibility”.
Where a claim is not substantiated for
of a communication. The latter factors include the exhaustion
18
purposes of admissibility, the Human Rights Committee has
of domestic remedies and the examination of the
held communications inadmissible under rule 90 (b).
communication by another procedure of international
19
21.
Comparable instruments divide admissibility criteria
into two groups, indicating the different stages at which a
claim may be declared inadmissible. These two groups of
criteria are clustered into more than one article, and within
26.
The draft OP incorporates the criterion of exhaustion
articles into paragraphs.
of domestic remedies in alternative 1, paragraph 1, and
22.
Certain criteria of inadmissibility, in particular
anonymity, abuse
of the right of submission and
incompatibility with the provisions of the instrument, make
a communication inadmissible prima facie. These are the first
27.
After the hurdles of anonymity, abuse of the right of
issues to be examined by a treaty body when it receives a
submission and incompatibility with the provisions of the
communication. Communications which meet any of these
Conventions have been cleared,
Committees bring the
criteria of inadmissibility are not considered further. In
communication to the attention of the State party that is
particular, they are not brought to the attention of the State
alleged to have violated a treaty for explanations, including
party concerned.
information on any remedy that may have been taken.
23.
Article 3 of the draft OP addresses the question of
anonymity. The criteria of incompatibility and abuse of the
right of submission are contained in article 4, alternative 1,
subparagraphs 2 (i) and (ii), and alternative 2, subparagraphs
(i) and (ii). In both alternatives, the two criteria are assembled
under a chapeau which indicates prima facie inadmissibility.
28.
After several years’ practice of joining consideration
Three existing instruments
contain these two elements in
of admissibility and consideration of merits, the Human
20
language basically identical to the language contained in both
Rights Committee decided at its sixtieth session, in 1997,
alternatives of article 4 of the draft OP. The criteria in the
that, as a basic rule, it would join the consideration of
three existing instruments are presented under a chapeau
admissibility and merits of communications in all cases.
It
which states that “the Committee shall consider inadmissible
amended its rules of procedure accordingly.
any communication ... which ...”, whereas article 4
(alternative 1) of the draft OP requires the Committee to
21
Committee’s active assessment of whether the information
available justifies the examination of a communication on its
merits. Alternative 2, grouping all admissibility criteria under
one chapeau, does not distinguish between prima facie
inadmissibility and inadmissibility following the Committee’s
examination of certain criteria.
22
investigation or settlement.
Examination of these two
23
criteria are preconditions for a declaration of admissibility,
which precedes the examination on the merits.
alternative 2, paragraph (iv), of article 4. While the two
alternatives are identical in content, they have different
chapeaux, in accordance with the different drafting styles.
24
25
Subsequently,
the
information
submitted
by
the
complainant(s) and the State party forms the basis for the
treaty body’s decision of admissibility or inadmissibility,
which precedes consideration of the merits of the
communication.
26
E/CN.6/1998/7
6
29.
In the two alternatives of article 4 of the draft OP, the
requirement of exhaustion of domestic remedies in
sequence in which the admissibility criteria are listed diverges
accordance with generally recognized rules of international
from existing procedures and from the sequence in which
law; and the requirement that the claimant demonstrate the
these criteria operate in practice.
ineffectiveness of the remedies or that the application of the
30.
Alternative 1 addresses first, in paragraph 1, the
requirement of the exhaustion of domestic remedies, which
35.
Article 4, alternative 1, subparagraph 2 (iv), and
is to be ascertained by the Committee before declaring a
alternative 2, subparagraph (v), elaborate factors of
communication admissible. Paragraph 2 combines various
inadmissibility of a communication for temporal reasons –
criteria leading to prima facie inadmissibility and criteria
that is, that it relates to facts that occurred before the entry
27
which have to be ascertained by the Committee on the basis
into force of the Protocol for a State party concerned. Such
of information available to it.
a communication would be admissible if the facts continued
31.
Alternative 2 combines under the same chapeau prima
facie inadmissibility criteria with criteria requiring the
Committee’s active examination based on information
received.
32.
Alternative 1 requires the Committee not to declare a
communication admissible unless the issue of the exhaustion
of domestic remedies has been examined. Alternative 2 states
that a communication shall be inadmissible where domestic
remedies have not been exhausted. The chapeaux of existing
instruments state that the Committees shall not consider
communications unless they have ascertained that domestic
remedies have been exhausted or that this rule should not
apply. With the joining of the consideration of admissibility
and merits, as is now the rule in the Human Rights
Committee, the State party is requested to submit written
explanations or statements relating to both aspects of a
communication. Only in exceptional cases will the Committee
request a State party to address admissibility only.28
33.
The two alternatives of article 4 contain a number of
exceptions or qualifications to the general rule that available
domestic remedies must be exhausted before a Committee can
consider a complaint, including where remedies are
unreasonably prolonged, or unlikely to bring effective relief
(para. 1 of alternative 1 and para. (iv) of alternative 2). These
exceptions and qualifications are also contained in existing
instruments. Exhaustion of “available domestic remedies”
unless where their “application is unreasonably prolonged”
is covered.
“Unlikely to bring effective relief” is also
29
covered.
The MWC
explicitly gives the Committee the
30
31
responsibility to determine whether exception from the rule
is justified (“this shall not be the rule where, in the view of
the Committee ...”). The exhaustion of domestic remedies in
existing procedures was discussed in the comparative
summary.32
34.
A number of exceptions or qualifications to the general
rule which are contained in article 4, alternatives 1 and 2, are
not found in existing instruments. These include the
requirement that domestic remedies be “legal”; the
remedies has been unduly prolonged.
after the entry into force of the Protocol. As was noted in the
comparative summary,
none of the existing procedures
33
contains an explicit criterion that would make a
communication inadmissible for temporal reasons. The
comparative summary notes the current practice of the Human
Rights Committee with regard to inadmissibility ratione
temporis.
In this regard, the admissibility criterion applied
34
by the Human Rights Committee is whether the events in
question have, since the entry into force of the Optional
Protocol, had persistent effects (emphasis added) which in
themselves constitute violations of the Covenant.35
36.
Article 4, alternative 1, subparagraph 2 (v), and
alternative
2,
subparagraph
(vi),
incorporate
an
inadmissibility criterion which aims to avoid duplication of
procedures by declaring inadmissible communications where
the same matter has been examined previously under another
procedure of international investigation or settlement. This
criterion can be found in existing instruments. They declare
that a communication shall not be considered by the
Committee unless it has ascertained that “the same matter is
not being examined under another procedure of international
investigation or settlement”.
CAT and MWC add
36
inadmissibility when the same matter has been examined in
such manner. The comparative summary discusses the
simultaneous and subsequent consideration of the “same
matter”.
The alternatives of article 4 also preclude
37
admissibility in the case of prior examination by the
Committee itself, a situation not addressed under other
procedures. An option excluding admissibility when the same
matter has been taken note of under another procedure,
contained in article 4, alternative 1, subparagraph 2 (v), and
alternative 2, subparagraph (vi), is likewise not addressed
under other procedures.
37.
An admissibility criterion requiring compliance with
principles of objectivity, including information on remedies
or reparation, is foreseen in article 4, alternative 1, paragraph
3, and alternative 2, subparagraph (vii). There is no
comparable provision in existing instruments.
E/CN.6/1998/7
7
Article 5: Interim measures
38.
Article 5 of the draft OP deals with interim measures
which may be recommended or requested by the Committee
at any time between the receipt of a communication and a
determination on the merits.
39.
The use of interim measures under existing procedures
was discussed in the comparative summary.
While under
38
other procedures such interim measures are not included in
the body of the instrument, they are provided for in the rules
of procedure of the treaty body concerned and are utilized in
practice.
Article 6: Reference of
communications to a State party
40.
Article 6.1 and alternatives 1 and 2 deal with the
presentation of a communication to the State party concerned
for comments. Under the four existing procedures,
communications are brought to the attention of the State party
concerned subject to the absence of prima facie admissibility
criteria. The reference of a communication to a State party
concerned was discussed in the comparative summary.39
41.
The opening phrase of article 6.1 (“Unless the
Committee considers a communication inadmissible without
reference to the State party concerned ...”) has equivalents in
existing procedures.
These articles, however, subject the
40
reference of a communication to a State party to situations
where prima facie admissibility criteria listed in the
preceding article or paragraph are absent. Article 6.1 of the41
draft OP provides grounds that govern the criteria to be
applied by the Committee in its decision not to refer a
communication to the State party. With the exception of
CERD, existing procedures make it clear that only
communications that fulfil specific admissibility criteria
outlined in the relevant instrument are to be brought to the
attention of the State party.
42.
Article 6.1, alternative 1, of the draft OP exhibits
greater similarities with CERD,
which states that “The
42
Committee shall confidentially bring any communication
referred to it to the attention of the State party ...”, as it does
not require that a communication meet prima facie
admissibility criteria before being referred to the State party
concerned. Alternatives 1 and 2 leave it to the Committee to
decide whether a communication is to be referred to the State
party: “The State party should be informed ...” (alternative
1) and “The Committee may bring any communication
admitted by it ... to the attention of the State party ...”
(alternative 2). It is to be noted that existing instruments
require the Committees to bring communications to the
attention of the relevant State party. Thus, in all four
instruments, the formulation used is “... the Committee shall
bring any communication ... to the attention of the State party
...”. Article 6.1 of the draft OP uses the same formulation.
43.
By article 6.1 and alternatives 1 and 2, the Committee
would bring communications confidentially to the attention
of the State party. Only CERD
has a similar confidentiality
42
requirement. Reference is also made to the comparative
summary, in particular to the confidentiality of documents.43
44
Since then, the Human Rights Committee has amended its
rules of procedure concerning confidentiality. Under a new
rule 96, the author of a communication and the State party
concerned may now make public any submissions or
information bearing on the proceedings unless the Committee
has requested the parties to respect confidentiality. All
working documents issued for the Committee are confidential
unless the Committee decides otherwise. The Committees
final decisions (views, decisions declaring a communication
inadmissible, decisions to discontinue a communication) are
made public. The name(s) of the author(s) is (are) disclosed
unless the Committee decides otherwise.45
44.
Article 6.1 and alternatives 1 and 2 foresee, in different
formulations, that the identity of the claimant(s) will be
protected when a communication is brought to the attention
of the State party. Only CERD has a requirement according
to which the “identity of the individual or groups concerned
shall not be revealed without his or their express consent”.46
This is also discussed in the comparative summary.47
45.
Article 6.2 of the draft OP determines the time-frame
within which a State party is requested to provide information
to the Committee, including any remedies taken. Identical
formulations can be found in existing instruments, whereby48
the first OP, CAT and MWC establish a six-month and CERD
a three-month time-frame for such replies.
46.
Article 6.3 of the draft OP foresees the Committee’s
role vis-à-vis the parties concerned in achieving a settlement
of the matter during its consideration. Other existing
procedures have no comparable provision.
Article 7: Consideration of
communications
47.
The first part of article 7.1 of the draft OP covers the
Committee’s consideration of a communication in the light
of information made available to it by the claimant(s) and the
State party. An almost identical formulation is contained in