Economic and Social Council
19 December 1997
Commission on the Status of Women
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
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
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Articles 1 and 2: Competence of the Committee and standing . . . . . . . . . . . . . . . . . . .
Articles 3 and 4: Admissibility criteria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Article 5: Interim measures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Article 6: Reference of communications to a State party . . . . . . . . . . . . . . . . . . . . . . . .
Article 7: Consideration of communications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Article 8: Remedies for violations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Article 9: Follow-up mechanism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Article 10: Inquiry procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Article 11: Measures taken and follow-up . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Article 12: Effective exercise of the right to submit communications . . . . . . . . . . . .
Article 13: Annual report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Article 14: Publicity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Article 15: Rules of procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Article 16: Meeting time . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Article 17: Ratification procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Article 18: Entry into force . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Article 19: Federal States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Article 20: Reservations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Article 21: Amendments to the Protocol . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Article 22: Denunciation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Articles 23 and 24: Depository functions of the Secretary-General . . . . . . . . . . . . . .
Articles 1 and 2: Competence of the
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.
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
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
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.
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
Committee and standing
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
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 bodys
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
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 OPs
admissibility criteria. It may be noted that the Secretariat
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.
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.
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.
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
on behalf of individuals.10
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
partys 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 partys] jurisdiction and CERD that the
instruments. This is discussed in the comparative summary.
claimant(s) be within its jurisdiction.
None of the existing procedures contains explicit provisions
concerning the right of a claimant or claimants to be
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
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 Committees
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
Committees right to receive and consider communications
and article 2 establishing the right of the claimant(s) to submit
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)
Alternative 1, alternative 2 and the alternative to 2 (a)
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
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
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
explicitly establishes that communications must be in written
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.
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
a distinction between prima facie inadmissibility and
declare a communication inadmissible. CERD has no
declaration of inadmissibility following examination.
Both alternatives incorporate a number of criteria that
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
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
Existing instruments distinguish between factors that
although an author does not need to prove the alleged
cause prima facie inadmissibility, on the one hand,
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
Where a claim is not substantiated for
of a communication. The latter factors include the exhaustion
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
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
The draft OP incorporates the criterion of exhaustion
articles into paragraphs.
of domestic remedies in alternative 1, paragraph 1, and
Certain criteria of inadmissibility, in particular
of the right of submission and
incompatibility with the provisions of the instrument, make
a communication inadmissible prima facie. These are the first
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
information on any remedy that may have been taken.
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.
After several years practice of joining consideration
Three existing instruments
contain these two elements in
of admissibility and consideration of merits, the Human
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.
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
Committees 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 Committees
examination of certain criteria.
investigation or settlement.
Examination of these two
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.
complainant(s) and the State party forms the basis for the
treaty bodys decision of admissibility or inadmissibility,
which precedes consideration of the merits of the
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
Alternative 1 addresses first, in paragraph 1, the
requirement of the exhaustion of domestic remedies, which
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
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
Alternative 2 combines under the same chapeau prima
facie inadmissibility criteria with criteria requiring the
Committees active examination based on information
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
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
Unlikely to bring effective relief is also
explicitly gives the Committee the
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
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
none of the existing procedures
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
In this regard, the admissibility criterion applied
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
Article 4, alternative 1, subparagraph 2 (v), and
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
inadmissibility when the same matter has been examined in
such manner. The comparative summary discusses the
simultaneous and subsequent consideration of the same
The alternatives of article 4 also preclude
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.
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.
Article 5: Interim measures
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.
The use of interim measures under existing procedures
was discussed in the comparative summary.
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
Article 6: Reference of
communications to a State party
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
The opening phrase of article 6.1 (Unless the
Committee considers a communication inadmissible without
reference to the State party concerned ...) has equivalents in
These articles, however, subject the
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.
Article 6.1, alternative 1, of the draft OP exhibits
greater similarities with CERD,
which states that The
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.
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
requirement. Reference is also made to the comparative
summary, in particular to the confidentiality of documents.43
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
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
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.
Article 6.3 of the draft OP foresees the Committees
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
The first part of article 7.1 of the draft OP covers the
Committees 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
existing instruments. The requirement that such information
such as by providing adequate compensation for the violations
be limited to material available to the Committee in written
found by the Committee. A time-frame within which
form has an equivalent in the first OP.
The option that
Committees wish to receive from the State party information
information be submitted to the Committee by or on behalf
about the measures taken to give effect to the Committees
of the claimant(s) has an equivalent in CAT and MWC. The
views is usually also provided. The comparative summary
provision in the second part of article 7.1 of the draft OP
discusses the current practice of the treaty bodies with regard
whereby the Committee may also take into consideration
to views and follow-up.
The Human Rights Committee
information from other sources provided that this is
actively monitors compliance through its follow-up
transmitted to the author of the communication and the State
party concerned for comment is not contained in other
instruments. The comparative summary discusses the question
of information made available to Committees in the
consideration of communications.
Either party may avail
itself of information prepared by third parties (for example,
amicus curie briefs) and make it part of its own submission,
if it so wishes.
Article 7.2 of the draft OP requiring the Committee to
hold closed meetings when examining communications has
an equivalent in existing procedures.53
Article 7.2 bis of the draft OP, relating to the
participation of the State party during the Committees
consideration of a communication and envisaging it offering
oral and/or written submissions, has no comparable provision
in existing instruments. Reference is made to the comparative
summary, which discusses the proceedings on the merits of54
a case under existing procedures and the participation of
representatives during proceedings.55
Article 7.3 of the draft OP and its alternative address
the conclusion of the consideration of a communication by the
Committee through the adoption of views. In addition to
forwarding such views and recommendations to the parties
concerned, article 7.3 and its alternative refer to the adoption,
by the Committee, of its views, after examining a
communication. Existing instruments state that the
Committee shall forward its views to the State party
concerned and to the individual; CERD refers to suggestions
and recommendations, if any. In the practice of the treaty56
bodies, such views commonly contain recommendations of
remedies a State party is expected to take following a
Committees finding of a violation. This is also discussed in
the comparative summary.57
Article 8: Remedies for violations
Article 8 of the draft OP covers the last stage of a
communications procedure that is, the follow-up phase after
the Committees findings on the merits and issuance of its
views on a communication. While there is no direct equivalent
to article 8 in existing procedures, the treaty bodies ask a
State party to take appropriate steps to remedy a violation,
With regard to the provision of statements or
explanations by a State party concerned, the different stages
of such submissions may be noted: article 6.2 of the draft OP
addresses the submission of explanations by the State party
during the consideration of the merits of a communication;
article 8.3 and alternative 1 cover follow-up after the
Committees adoption of views on a communication.
Article 9: Follow-up mechanism
Although existing instruments do not contain an
equivalent to article 9 of the draft OP, the treaty bodies have
developed the practice of following up on decisions taken
with regard to specific communications. This was discussed
in the comparative summary.
For example, the Human
Rights Committee has introduced the mechanism of a Special
Rapporteur for the Follow-Up on Views, which enables the
Committee to evaluate State party compliance with its
The Special Rapporteur is called upon to ascertain
the measures taken by States parties to give effect to the
Committees views (rule 95).
Since 1991, the Special
information in respect of all views with a finding of a
violation of the Covenant. Information on the Committees
follow-up activities are included in its annual report.63
Article 10: Inquiry procedure
Article 10 of the draft OP is comparable to article 20
of CAT. The opening clause of article 10.1 of the draft OP
(If the Committee receives reliable information) is identical
to article 20.1 of CAT. While article 10.1 continues by stating
that the information would need to indicate a serious and/or
systematic violation by a State party to the Protocol of rights
set forth in the Convention, article 20.1 of CAT requires that
such information must appear to the Committee to contain
well-founded indications that torture is being systematically
practised in the territory of a State Party. The concluding
clause of article 10.1 of the draft OP is identical to that of
CAT goes into greater detail and states that all the
article 20.1 of CAT.
proceedings of the Committee referred to in paragraphs 1 to
Article 10.2 has its equivalent in articles 20.2 and 20.3
of CAT. The opening clauses are again identical, except that
the draft OP refers to reliable information whereas CAT
refers to relevant information available to the Committee as
the basis upon which the Committee may designate one or
more of its members to make an inquiry and to report urgently
to the Committee. This procedure is also foreseen in article
10.2, but without the qualifying clause contained in CAT (art.
20.2) that such designation occur if [the Committee] decides
that this is warranted. CAT requires its designated members
to make a confidential inquiry, whereas article 10.2 foresees
that an inquiry would be conducted with the consent of the
State party. In article 20.3, CAT states that for inquiries made
in accordance with article 20.2, the Committee shall seek the
cooperation of the State party concerned. Article 20.3 also
foresees a visit to the territory in agreement with the State
party, a procedure envisaged in the last sentence of article
10.2 of the draft OP. The where warranted clause that opens
the last sentence has an equivalent in article 20.2 of CAT.
Under CAT, however, this clause refers to the designation of
Committee members for the purpose of conducting an inquiry,
whereas in the case of draft article 10.2, the clause refers to
a visit to the territory of the State party.
Article 10.3 of the draft OP is comparable to article
20.4 of CAT. The content of both articles is identical except
that article 10.3 refers, in an abbreviated form, to the findings
of such an inquiry while CAT article 20.4 refers to the
findings of its member or members submitted in accordance
with paragraph 2 of this article. A second difference is that
article 10.3 refers to the Committees comments and
recommendations. CAT article 20.4 refers to the
Committees comments or suggestions which seem
appropriate in view of the situation.
Article 10.4 of the draft OP foresees the submission,
after the Committees issuance of its findings, of the State
partys observations to the Committee. While there is no
comparable provision in CAT, the rules of procedure of the
Committee against Torture
cover this matter. Rule 83.1
deals with the transmission of the Committees findings to the
State party, as established in article 20.4. Rule 83.2 states that
the State party concerned shall be invited to inform the
Committee within a reasonable delay of the action it takes
with regard to the Committees findings and in response to
the Committees comments or suggestions.64
Article 10.5 of the draft OP is comparable to the first
sentence of article 20.5 of CAT. While article 10.5 refers to
the confidential conduct of such an inquiry, article 20.5 of
4 of this article shall be confidential. While the confidential
nature of the proceedings is emphasized in CAT (shall be),
article 10.5 of the draft OP foresees that such an inquiry
would be conducted confidentially. Both articles require
that at all stages of the proceedings the cooperation of the
State party shall be sought. Article 10.5 of the draft OP
refers to the consent and cooperation of the State party,
whereas CAT refers to the cooperation of the State party.
Article 11: Measures taken and
Article 11 of the draft OP has no comparable equivalent
in CAT or in the rules of procedure of the Committee against
Article 12: Effective exercise of the
right to submit communications
Article 12 of the draft OP and its alternative
formulations have no comparable provision in existing
instruments. The emphasis in article 12 (c) of the draft OP on
cooperation between a State party and the Committee in
proceedings under the Protocol is reflected in the practice of
other treaty bodies. For example, the Human Rights
Committee has noted that the procedure established under
the Optional Protocol aims at helping victims rather than
condemning States parties for violations of the Covenant. The
Committee therefore welcomes the early cooperation by
States parties in finding solutions to human rights
Article 13: Annual report
Article 13 of the draft OP was adopted ad referendum
by the Working Group. It has an identical equivalent in the
first OP and a comparable provision in CERD.
provision can be found in CAT,
covering all of the
Committees activities, including those under articles 20
Article 14: Publicity
Existing instruments do not have a provision
that have signed, acceded to or ratified the Convention also
comparable to article 14 of the draft OP, although a similar
to sign the Protocol. By article 8.1, the first OP is open for
provision relating to a substantive treaty is to be found in the
signature by States that have signed the International
Convention on the Rights of the Child.
The rules of
Covenant on Civil and Political Rights. The Covenant and the
procedure of the three treaty bodies underline the desirability
first OP were adopted on the same day. The formulation
of publicity for the procedures and the work of the
contained in article 8.1 allowed States that signed the
Committees in this regard.
Covenant to sign the first OP at the same time.
Article 15: Rules of procedure
Existing instruments refer to the power of the treaty
bodies to establish their own rules of procedure.
first Optional Protocol to the International Covenant on Civil
and Political Rights does not address separately the
Committees power to establish its rules of procedure when
acting under the OP, it may be noted that the Covenant and
the first OP were adopted simultaneously and opened for
signature, ratification and accession through the same
resolution of the General Assembly. The Convention on the72
Elimination of All Forms of Discrimination against Women,
however, has been in force since 1981.
Article 16: Meeting time
The four human rights instruments considered contain
no provisions concerning the meeting time of the relevant
treaty body for the purposes of discharging all its
communications and/or inquiry procedures. The Convention
on the Elimination of All Forms of Discrimination against
Women (CEDAW) is unique among the international human
rights treaties in containing a limitation on the meeting time
for its treaty body. In view of the constraints caused by this73
limitation, a process of amending the treaty is under way to
provide a legal basis for the Committee to be allocated
meeting time commensurate with its functions. At this point,
the Committee has been given six weeks annual meeting time
by the General Assembly, plus two weeks annually for its pre-
session working group. The comparative summary outlines
the average meeting time allocated by the treaty bodies to the
discharge of their functions under the complaints/inquiry
Article 17: Ratification procedure
Article 17 of the draft optional protocol follows article
8 of the first OP very closely. Article 17.1, however, is
formulated more extensively than article 8.1, enabling States
It may also be noted that, while the usual formulation
for a clause such as that contained in article 17.1 of the draft
OP is ... any State which has signed, ratified or acceded
to ..., article 17.1 of the draft OP uses the wording ...
signed, acceded to or ratified ....
The responsibilities of the Secretary-General as
depository of the treaty, which are contained in articles 8.5
and 13 of the first OP, are combined in one article (article 23)
in the draft OP.
Article 18: Entry into force
Article 18 of the draft optional protocol is comparable
to article 9 of the first OP. As regards the number of
instruments of ratification required for entry into force, the
first OP, CERD and MWC require ten such instruments and
Article 19: Federal States
A formulation comparable to article 19 of the draft OP
can be found in the International Covenant on Civil and
Political Rights and the first OP.
These have an identical
article stating that the provisions of the present
Covenant/Protocol shall extend to all parts of federal States
without any limitations or exceptions. It will be recalled that
the Covenant and the first OP were adopted in 1966, prior to
the adoption of the 1969 Vienna Convention on the Law of
Treaties. This Convention, which entered into force in 1980,
provides in its article 29 that unless a different intention
appears from the treaty or is otherwise established, a treaty
is binding upon each party in respect of its entire territory.78
It thereby establishes a presumption of application of treaties
to the entire territory of a Contracting State. This presumption
is expressly confirmed by article 19 of the draft OP. CERD,
CAT, MWC and CEDAW itself have no such provisions.
Article 20: Reservations
There are no provisions in the four existing instruments
Article 22 of the draft OP is identical to article 12 of the
comparable to the formulations contained in article 20 of the
first OP, except for some minor variations. For example,
draft OP and its alternative. The first OP is silent on the
article 22.1 uses the words can denounce this Protocol,
question of reservations and none of the other instruments
whereas article 12 states may denounce the present
addresses the question of reservations in the context of the
Protocol. The first OP specifies that denunciation does not
communications procedure. The comparative summary gives
apply to any communication submitted under article 2 before
an overview of the current practice of the treaty bodies with
the effective date of denunciation.
regard to reservations to their communications procedures.79
With regard to the inquiry procedure set out in article 20 of
CAT, article 28 of CAT contains a so-called opt-out
provision. This provision offers a State party the option upon
ratification of, or accession to, the Convention to make a
declaration that it does not recognize the competence of the
Committee to initiate an inquiry in accordance with article 20.
An opt-out may be withdrawn at any time by notification
to the Secretary-General. As of 8 December 1997, 11 of the80
104 States parties to CAT had made a declaration that they
do not recognize the competence of the Committee under
Article 21: Amendments to the
Article 21 is identical to article 11 of the first OP and
to article 51 of the International Covenant on Civil and
Political Rights. MWC also has an identical article (art. 90),
but adds time-frames for its operation. First, requests for
revisions may be made after five years from the entry into
force of the Convention, and secondly, a four-months time-81
frame is given for receiving a favourable reply from one third
of the States parties with respect to a conference to consider
the proposed amendments.
establishes that any
amendment adopted by the majority of the States parties be
submitted by the Secretary-General for acceptance to all the
States parties, as opposed to the General Assembly, as is the
case in the International Covenant on Civil and Political
Rights and the first OP. The procedure for a revision of
is identical to the CEDAW revision procedure.
Accordingly, a request for a revision may be made at any time
by a State party by means of a written notification to the
Secretary-General. The General Assembly is then called upon
to decide upon the steps, if any, to be taken in respect of such
a request. There are some minor drafting differences between
article 21 of the draft OP and article 11 of the first OP.
Article 22: Denunciation
Articles 23 and 24: Depository
functions of the Secretary-General
Articles 23 and 24 of the draft OP are largely identical
to articles 13 and 14 of the first OP. The chapeau of article
23 reiterates the language of article 25.1 of CEDAW when
it refers to all States. The draft OP refers to entry into force
of the Protocol, entry into force of amendments, and
denunciations in the same subparagraph, whereas in the first
OP these issues are contained in two separate subparagraphs.
Article 24 reflects article 30 of CEDAW, which states that
the six language texts are equally authentic.
1 Official Records of the Economic and Social Council,
1997, Supplement No. 7 (E/1997/27), chap. I, sect. C.2.
2 Ibid., 1997, Supplement No. 7 (E/1997/27), annex III,
3 General Assembly resolution 2200 A (XXI), annex.
4 General Assembly resolution 39/46, annex.
5 General Assembly resolution 2106 A (XX), annex.
6 General Assembly resolution 45/158, annex.
7 Art. 1 of the first OP, art. 22.1 of CAT, art. 14.1 of CERD
and art. 77.1 of MWC.
8 E/CN.6/1997/4, paras. 20 and 21.
9 Last sentence of art. 1 of the first OP, art. 22.1 of CAT, art.
14.1 of CERD and art. 77.1 of MWC.
10 Art. 1 of the first OP, art. 22.1 of CAT, art. 14.1 of CERD
and art. 77.1 of MWC.
11 E/CN.6/1997/4, paras. 44-48.
12 E/CN.6/1997/4, paras. 47 and 48.
13 Art. 1 of the first OP, art. 22.1 of CAT, art. 77.1 of MWC
and art. 14.1 of CERD.
14 Art. 22.5 (b) of CAT, art. 14.7 (a) of CERD and art. 77.3
(b) of MWC.
15 Art. 3 of the first OP, art. 22.2 of CAT, art. 14.6 (a) of
CERD and art. 77.2 of MWC.
16 Art. 2.
18 Official Records of the General Assembly, Fifty-second
Session, Supplement No. 40 (A/52/40), vol. I, para. 478;
para. 479 provides examples of cases declared inadmissible,
inter alia, for lack of substantiation of the claim or failure
to advance a claim.
19 The Human Rights Committee has used article 2 of the first
OP in conjunction with rule 90 (b) to dismiss
communications that are manifestly ill-founded, although
such an admissibility criterion is not contained in the first
OP. The Committee has also used the formula that the
author has failed to advance a claim within the meaning of
article 2 of the Optional Protocol to dismiss at the
admissibility stage communications that would inevitably
fail at the merits stage.
20 The first OP (art. 3), CAT (art. 22.2) and MWC (art. 77.2).
21 Art. 5.2 of the first OP, art. 22.5 of CAT, art. 14.7 (a) of
CERD and art. 77.3 of MWC.
22 That is, anonymity, abuse of the right of submission and
incompatibility with the provisions of the instrument,
contained in art. 3 of the first OP, art. 22.2 of CAT and art.
77.2 of MWC.
23 See arts. 2 and 5.2 (a) and (b) of the first OP, art. 22.5 (a)
and (b) of CAT, art. 14.7 (a) of CERD and art. 77.3 (a) and
(b) of MWC.
24 The Human Rights Committee designates one of its
members as Special Rapporteur on new communications
who processes new communications as they are received,
either dismissing them as inadmissible (e.g., because of
anonymity) or transmitting them to States parties requesting
information or observations relevant to the question of
admissibility. The Special Rapporteur may also recommend
to the Committee that a communication be declared
inadmissible without forwarding it to the State party. See
Official Records of the General Assembly, Fifty-second
Session, Supplement No. 40 (A/52/40), vol. I, para. 466.
See also the comparative summary (E/CN.6/1997/4), para.
60. The Committee against Torture appoints a case
rapporteur for new cases.
25 Art. 4.1 of the first OP, art. 22.3 of CAT, art. 14.6 (a) of
CERD and art. 77.4 of MWC.
26 See Official Records of the General Assembly, Fifty-second
Session, Supplement No. 40 (A/52/40), vol. I, paras. 470
27 For example, abuse of the right of submission and
incompatibility with the provisions of the Convention.
28 Official Records of the General Assembly, Fifty-second
Session, Supplement No. 40 (A/52/40), vol. I, para. 471.
29 See art. 5.2 (b) of the first OP, art. 22.5 (b) of CAT, art.
14.7 (a) of CERD and art. 77.3 (b) of MWC.
30 See art. 22.5 (b) of CAT and art. 77.3 (b) of MWC.
31 Art. 77.3 (b).
32 E/CN.6/1997/4, paras. 28 and 29.
33 E/CN.6/1997/4, paras. 32-35.
34 Ibid.; see also Official Records of the General Assembly,
Fifty-second Session, Supplement No. 40 (A/52/40), vol. I,
paras. 483 and 484.
35 Ibid., para. 483.
36 Art. 5.2 (a) of the first OP, art. 22.5 (a) of CAT and art.
77.3 (a) of MWC.
37 E/CN.6/1997/4, para. 27.
38 E/CN.6/1997/4, paras. 67-70.
39 Ibid., paras. 42 and 43.
40 Art. 4.1 of the first OP, art. 22.3 of CAT and art. 77.4 of
41 That is, anonymity, abuse of the right of submission and
incompatibility with the provisions of the Convention.
42 Art. 14.6 (a).
43 E/CN.6/1997/4, paras. 71-83.
44 Ibid., para. 76.
45 Official Records of the General Assembly, Fifty-second
Session, Supplement No. 40 (A/52/40), vol. I, para. 454.
46 Art. 14.6 (a).
47 E/CN.6/1997/4, paras. 71-83, in particular paras. 73 and
48 Art. 4.2 of the first OP, art. 22.3 of CAT, art. 14.6 (b) of
CERD and art. 77.4 of MWC.
49 Art. 5.1 of the first OP, art. 22.4 of CAT, art. 14.7 (a) of
CERD and art. 77.5 of MWC.
50 Art. 5.1.
51 Art. 22.4 of CAT and art. 77.5 of MWC.
52 E/CN.6/1997/4, paras. 85-88, in particular para. 88.
53 Art. 5.3 of the first OP, art. 22.6 of CAT and art. 77.6 of
54 E/CN.6/1997/4, paras. 49-55.
55 Ibid., para. 84.
56 Art. 5.4 of the first OP, art. 22.7 of CAT, art. 14.7 (b) of
CERD and art. 77.7 of MWC.
57 E/CN.6/1997/4, paras. 61-66, in particular para. 61.
59 See Official Records of the General Assembly, Fifty-second
Session, Supplement No. 40 (A/52/40), vol. I, para. 517.
60 E/CN.6/1997/4, paras. 63-65.
61 Official Records of the General Assembly, Fifty-first
Session, Supplement No. 40 (A/51/40), vol. I, para. 424.
62 See Rules of procedure of the Human Rights Committee
63 See Official Records of the General Assembly, Fifty-second
Session, Supplement No. 40 (A/52/40), vol. I, chap. VIII
(Follow-up activities under the Optional Protocol).
65 Official Records of the General Assembly, Fifty-first
Session, Supplement No. 40 (A/51/40), vol. I, para. 419.
66 Art. 6.
67 Art. 14.8.
68 Art. 24.
69 General Assembly resolution 44/25, annex, art. 42.
70 See also the comparative summary (E/CN.6/1997/4), para.
71 Art. 39.2 of the International Covenant on Civil and
Political Rights, art. 18.2 of CAT, art. 10.1 of CERD and
art. 19.1 of the Convention on the Elimination of All Forms
of Discrimination against Women.
72 General Assembly resolution 2200 (A) (XXI) of 16
73 General Assembly resolution 34/180, annex, art. 20.1.
74 E/CN.6/1997/4, paras. 93 and 94.
75 Art. 9.1 of the first OP, art. 14.9 of CERD, art. 77.8 of
MWC and art. 22.8 of CAT.
76 Art. 50.
77 Art. 10.
78 United Nations, Treaty Series, vol. 1155, No. 18232, p.
79 E/CN.6/1997/4, paras. 36-41.
80 Art. 28.2.
81 Art. 90.1
83 Art. 29.1.
84 Art. 23.
85 Art. 26.