THE CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN AND THE OPTIONAL PROTOCOL

THE CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN AND THE OPTIONAL PROTOCOL

Yakin Ertürk

Director

Division for the Advancement of Women

Introduction

December 1999 marked the twentieth anniversary of the adoption of the Convention on the Elimination of All Forms of Discrimination against Women by the General Assembly of the United Nations. On December 10 1999, the Optional Protocol to the Convention was opened for signature, ratification and accession. The Convention has now been ratified or acceded to by 167 States parties. The Optional Protocol to the Convention entered into force on 22 December 2000, after the receipt of the tenth instrument of ratification. There are now 18 States parties to the Optional Protocol and it has been signed by 65 States parties to the Convention.

The Convention was prepared over a seven-year period. It brings together in a single legally binding instrument the notion of elimination of discrimination on the basis of sex and existing international legal standards for the promotion of the rights of women. The Convention is a landmark multilateral treaty which moves beyond guarantees of equality and equal protection before the law in existing legal instruments and sets out measures for the achievement of the equality between women and men, regardless of status, marital or otherwise, in all fields of political, economic, social and cultural life. The Convention allows for temporary special measures of affirmative action and binds States parties to seek to modify stereotypical values and attitudes regarding female and male roles and identities. The obligation of States parties to eliminate discrimination against women applies to all spheres of life starting with the private sphere of the family. The Convention and its Optional Protocol represent a broadened understanding of the concept of "rule of law" which transcends all socio-cultural distinctions, converging with an universalized conception of human rights

The adoption of the Optional Protocol in 1999 is reflective of the strong link between the international legal framework for the advancement of women and the international human rights discourse. Both the Convention and its Optional Protocol have the potential to act as change agents in the quest for the elimination of discrimination against women and the achievement of their equality with men at the national level.

In the foregoing, a brief discussion of the primary mechanism instituted to oversee the implementation of the requirements of the Convention, i.e. the Committee on the Elimination of Discrimination against Women (CEDAW), will be presented, followed by an overview of the Convention and the Optional Protocol. Lastly, the role of parliaments in the promotion and protection of women's human rights and institutional collaboration in this regard will be explored.
The Committee on the Elimination of Discrimination of Women (CEDAW)

The Committee is comprised of 23 experts who are elected by secret ballot from a list of persons of "high moral standing and competence in the field covered by the Convention" nominated by States parties. In the election of members, who serve four year terms, consideration is given to equitable geographical distribution and the representation of different forms of cultural and legal systems. Although nominated by their own governments and elected by States parties, Committee members serve in their personal capacities as independent experts and not as delegates or representatives of their countries.

The Convention assumes that the major function of the CEDAW is the consideration of States parties’ reports. The Committee is also empowered by the Convention to make suggestions and general recommendations based on the examination of reports and information received from States parties. Suggestions are directed to organs of the United Nations, while general recommendations are addressed to States parties and usually elaborate the Committee’s view of the obligations assumed under the Convention. To date, the Committee has formulated 24 general recommendations. Under the Convention, the Committee may invite specialized agencies of the United Nations, which are entitled to be represented during its sessions, to submit reports for its consideration. The Committee also welcomes information from non-governmental organizations, although the Convention makes no explicit provision for NGO input. While, article 20 of the Convention limits the Committee’s meeting time to no more than two weeks annually, progressive decisions of the General Assembly now allow the Committee to meet for two sessions of three weeks annually, each preceded by a one week working group during which preparations are made for the consideration of second and subsequent reports which will be considered by the Committee at the next session.

The Committee, with the adoption of the Optional Protocol, has assumed additional functions, including the receiving and reviewing of complaints from individuals or groups of individuals alleging violations of the Convention by a State party to the Protocol. The Committee may also inquire into systematic and persisting violations. The first working group established to undertake responsibilities in response to the requirements of the Protocol will start its work at the upcoming CEDAW session in July 2001.
The Convention on the Elimination of All Forms of Discrimination against Women

The preamble of the Convention recalls that the elimination of discrimination against women and the promotion of equality between women and men are central principles of the United Nations and constitute binding obligations under the Charter and other instruments. By pointing out that extensive discrimination against women continues to exist, it indicates that the existing international human rights machinery had been insufficient to guarantee the protection of women’s human rights. The preamble states that discrimination against women violates the principles of equality of rights and respect for human dignity and amounts to an obstacle to women’s participation on equal terms with men in the political, social, economic and cultural life of their countries. It also indicates that sustainable development and world peace require the full participation of women on equal terms with men in all fields.

The preamble is followed by sixteen substantive articles which bind States which have ratified or acceded to its terms to certain specific obligations. Although the treaty requires progressive, rather than immediate implementation of many provisions, ratification or accession demonstrates an unqualified positive commitment to the comprehensive elimination of discrimination against women.

Article 1 of the Convention defines discrimination against women. It encompasses any distinction, exclusion or restriction on the grounds of sex, which prevents the equal exercise or enjoyment by women, irrespective of marital status, on the same basis as men, of their human rights and fundamental freedoms in all spheres of life. In Part I of the Convention (articles 1-6), States parties agree to take all appropriate measures to bring about the advancement of women. These take the form of legal, administrative and other measures, including affirmative action, modification of social and cultural patterns of conduct and suppression of traffic in women and the exploitation of prostitution of women. In Part II (articles 7-9), States parties undertake to protect women’s rights in public and political life. They agree to grant women the right to vote and be elected on a basis of equality with men, to participate in government as officials and policy makers, to participate in non-governmental organizations and to represent their countries internationally. They also agree to grant women equal nationality rights and equal rights with respect to their children’s nationality. In Part III (articles 10-14), States parties make various commitments to eliminate discrimination in education, employment, health, economic, social and cultural life. In a unique provision, States parties also bind themselves to take into account the particular problems faced by rural women, to eliminate discrimination against them and ensure that they participate in and benefit from rural development on the same basis as men. Final substantive provisions are found in Part IV, where States parties agree to afford women equality with men before the law, in the exercise of legal rights, and in marriage and family law.

In addition to binding themselves to implement the Convention at the national level, States parties also undertake to submit reports on measures they have adopted to give effect to the Convention, and the difficulties they may have encountered in implementing its provisions. These reports are to be submitted to the Secretary-General of the United Nations who forwards them to the Committee on the Elimination of Discrimination against Women for consideration. Reports are to be submitted within one year after the entry into force of the treaty for the State party concerned, and thereafter every four years, or whenever the Committee requires.
The Optional Protocol to the Convention

During the drafting of the Convention, there was little discussion of whether the treaty should provide a procedure under which individuals or groups of individuals could lodge with the body responsible for monitoring implementation of the Convention complaints alleging violations by a State party.

Some States, including Canada and Sweden had suggested that consideration be given to the adoption of both an individual and interstate complaints procedure. No draft was put forward during the drafting process in the Commission on the Status of Women (CSW), the main intergovernmental forum within the United Nations mandated with the promotion of the advancement of women and gender equality. It was only at the stage of the third Committee that a draft interstate procedure was put forward. Belgium proposed an additional article calling on States parties to examine in the Commission the possibility of establishing a complaints procedure for individuals and States parties, but no detailed draft was offered, and the proposal was defeated.

The question of a complaints procedure was raised once again during the drafting of the Convention, with the Netherlands in its comments on the CSW draft suggesting that there be a process of interstate complaints and individual petition, but no draft was put forward. Accordingly, the enforcement procedures contained in the Convention are limited to the reporting procedure and a provision allowing for the reference of disputes between States parties concerning the interpretation or application of the Convention to the International Court of Justice.

The idea of a complaints mechanism for the Convention gained life in the early 1990s with the emergence of the women’s human rights movement, which called for the strengthening of the existing United Nations human rights machinery for the advancement of women, including the Convention and the Committee. The Secretary-General's report reviewing the communications procedure of the Commission on the Status of Women submitted to the CSW in 1991, reflected NGO demands, suggesting the creation of a communications mechanism for the Convention. This notion was also discussed at the expert group meeting on violence against women held in Vienna in 1991 where the first draft of the Declaration on the Elimination of Violence against Women was prepared.

The women’s human rights movement focused on the World Conference on Human Rights which took place in Vienna in 1993. This activism was instrumental in bringing about an open acknowledgement on the part of the international community attending the Conference that human rights o f women had not been properly taken into account in existing international human rights law and implementation mechanisms. Hence, the Vienna Declaration and Programme of Action which directed the CSW and CEDAW "to quickly examine the possibility of introducing the right of petition through the preparation of an optional protocol to the Convention", clearly reflected this recognition.

At its fourteenth session in 1994, CEDAW called for the convening of an expert group meeting during 1994 to prepare a draft protocol to be presented to the Committee at its fifteenth session, a request which was forwarded to the CSW. No meeting was authorized by the CSW, but in late 1994 a pivotal NGO meeting was held at the Maastricht Centre for Human Rights in the Netherlands where a draft protocol was elaborated. Three members of the Committee participated in this meeting. The drafting of the protocol closely followed existing human rights procedures and introduced innovations designed to address violations of women’s human rights as well as difficulties women experienced in claiming their rights.

At its fifteenth session in 1995, CEDAW considered the "Maastricht draft" and suggestion number 7 setting out the desirable "elements" of an optional protocol was adopted. This suggestion, which delineated a protocol with a communications procedure and an inquiry procedure, was forwarded to CSW, which requested views from Governments, intergovernmental and non-governmental organizations on the idea of an optional protocol, including its feasibility in light of those elements. These comments were to be compiled and considered by an in-sessional working group of the CSW at its 1996 session with a view to elaborating a draft protocol. While comments on suggestion number 7 were being formulated, the Beijing Platform for Action adopted by the Fourth World Conference on Women in September 1995 gave further political support to the idea of an optional protocol.

The working group of the CSW on the optional protocol met for the first time in 1996 and discussed the idea of the instrument in a preliminary way, without the benefit of a draft. Amongst the concerns raised in that session were standing, overlap or duplication and justiciability. The working group requested a further round of comments by Member States and a comparative analysis of existing communications and inquiry procedures. Discussions at the 1997 session were facilitated by a draft text put forward by the Chairperson of the Working Group which was based on the CEDAW "elements" as well as the views of Member States on those elements reflected in their comments on suggestion number 7 and articulated during the 1996 negotiations. Negotiations at the 1997, 1998 and 1999 sessions of CSW focussed on the Chair’s text and resulted in the adoption by consensus of a protocol at the forty-third session of the Commission. The Optional Protocol was adopted by the General Assembly on 6 October 1999, and opened for signature, ratification and accession on 10 December 1999.

The Optional Protocol contains a communications procedure allowing individual women and groups of individuals to submit communications to the Committee after fulfilling certain criteria, including the exhaustion of domestic remedies. Communications may be submitted on behalf of individuals or groups of individuals where the alleged victim or victims consent or where the author of the communication can justify acting without the consent of the victim or victims. The Optional Protocol also contains an inquiry procedure modeled on that of the Convention against Torture providing that the Committee may inquire into grave or systematic violations of the Convention. This latter procedure may be opted-out of by States parties, and Bangladesh has chosen to do so. No reservations can be entered to the Protocol’s terms thereby precluding States parties isolating areas within the Convention from the reach of the communications procedure. There are several innovatory aspects to the protocol, including an explicit follow-up procedure, an obligation to publicize the Convention, the Optional Protocol and views adopted under the procedure and an obligation to take appropriate steps to ensure that individuals under its jurisdiction are not subjected to intimidation or ill-treatment as a result of using the Optional Protocol.

While there was some disappointment amongst non-governmental organizations that the Protocol as adopted did not retain a number of the Convention's "elements", especially with regard to expanded standing, the successful passage and rapid entry into force of the Protocol are testimonies to the power of the advocacy of the women’s human rights movement and the growing commitment of governments to safeguard human rights.

Mechanisms developed within the United Nations to promote the interests of women had traditionally taken a "programmatic" rather than "legislative" approach, and had lacked effective enforcement mechanisms. Thus the communications mechanism of the CSW had been weaker than that of the Commission on Human Rights. The Convention on the Elimination of All Forms of Discrimination against Women had also had less effective enforcement mechanisms than similar treaties developed at the same time, including the International Convention on the Elimination of All Forms of Racial Discrimination on which it had been modeled. Perhaps the most powerful strategy to strengthen the United Nations women’s human rights framework was the adoption of the notion of an Optional Protocol which would allow for communications.

In addition to improving on and adding to the existing enforcement mechanisms for women’s human rights and thus providing the opportunity for individual relief, the Optional Protocol is important as a tool for improving States’ and individuals’ understanding of the obligations imposed by the Convention; as a stimulus for States to implement the Convention and to ensure change in discriminatory laws and practice; and as a tool for creating greater public awareness of human rights standards relating to discrimination against women.
The Role of Parliaments in Compliance with the Convention and its Protocol

Human rights issue has been central to the discussions of the Inter-Parliamentary Union statutory conferences held twice annually, resulting in specific recommendations for action by governments and parliaments to promote and guarantee human rights. The statement presented by IPU at the 1998 substantive session of the United Nations Economic and Social Council under item 14 of the provisional agenda indicates the following:

Parliament's role is to enshrine human rights and fundamental freedoms adequately in national law and to ensure that the standard it approves is given substance in the corresponding enabling legislation and judicial and administrative practice. In carrying out its essential function of overseeing the action of the Executive branch, parliament has a broad range of means at its disposal to ensure that human rights obligations are respected and complied with by the competent State authorities. Lastly, Parliament is the State body which adopts the national budget and can thus steer funds towards sectors of primary impact as regards the enjoyment by everybody of human rights by all.

Furthermore, the IPU Council at its 162^nd. Session (Windhoek, 11 April 1998), upon the recommendation of women parliamentarians, has taken several decisions with regard to the Convention. These include: (1)urging the MP's of states that have not yet submitted an initial report or one or more of the subsequent reports to the CEDAW to, inquire about the reasons for the delay, arrange for the Government to present the report as soon as possible and ensure that the Government's report is detailed and complete and complies with the standards laid down by the CEDAW; (2)urges MP's of States having expressed reservations at the time of accession to the Convention to inquire about the continued validity of those reservations and if need be endeavour to have them removed; (3)as part of their role of overseeing Government action MP's could draw on an earlier IPU recommendation (1993) relating to reporting requirements of the Convention; and (4)invites Parliaments to support the adoption of the Protocol and take the necessary steps to secure its earliest possible entry into force.

These decisions provide a strong and solid basis for the IPU and its members to move forward the agenda for ensuring that women's human rights become a reality worldwide. For those States which are party to the Convention, there are clear obligations in the area of law and policy reform which follow as a result of ratification or accession. Laws in all areas must not discriminate against women directly or indirectly, and promises of de jure equality must be enjoyed de facto. The principle of equality between women and men is to be embodied in the national Constitution or other appropriate legislation, and legislative and other measures are to be adopted to prohibit all discrimination against women. Thus, a primary task for States which are party to the Convention is to review existing and proposed legislation for their discriminatory impact, repeal legislation where necessary, and develop and implement laws, including with regard to affirmative action, which promote non-discrimination on the basis of sex.

It is incumbent upon parliamentarians, as law-makers in their respective countries, to be aware of the legal obligations of the Convention which have been assumed voluntarily by their Governments. They should be aware that the Convention has a broad reach, and essentially provides that legal, policy and programmatic measures to eliminate discrimination against women and achieve their equality with men must be taken in all areas.

Parliamentarians need to be fully aware of the reporting process whereby the Committee on the Elimination of Discrimination against Women reviews implementation of the Convention on a periodic basis. Knowledge of when States parties’ reports should be submitted and when they will be reviewed by the Committee will enable parliamentarians to monitor the preparation and submission of reports and ensure that an informed delegation presents reports before the Committee. Parliamentarians who are an important link between civil society and governments should also ensure that their constituents are well informed that reports are being prepared so that they can follow the process both at national level and when reports are reviewed by the Committee. It is crucial that the results of consideration of reports by the Committee are widely disseminated at national level also. Parliamentarians should thus ensure that as soon as reports are considered, the concluding comments of the Committee become well-known.

Parliaments in a number of States parties have been involved in initiatives to publicize the CEDAW process and the outcome of reporting. In Mexico, for example, Parliament convened a meeting of NGOs to discuss the outcome of the consideration of the State party report by the Committee. The report, the questions posed by the Committee and the Committee’s concluding comments were compiled into a publication to facilitate this process.

Parliamentarians should also be actively aware of the Optional Protocol to the Convention, and the possibilities it provides to ensure enhanced implementation of the Convention. Non-governmental organizations have begun to campaign for ratification or accession of the Optional Protocol, and have included parliamentarians as amongst the target groups for such campaigns. Thus, a campaign launched jointly by International Women’s Rights Action Watch (Asia Pacific) and the Inter-American Institute of Human Rights seeks to raise awareness among parliamentarians of the Optional Protocol and the implications of ratification or accession for States parties.

The Convention, unlike other treaty bodies which are under the realm of the Commission on Human Rights, is serviced by the Division for the Advancement of Women (DAW) of the Department of Economic and Social Affairs (DESA), the UN entity which also provides substantive servicing to the CSW. Within such a structure the normative and the policy concerns governing women's human rights are kept in close proximity, supporting and influencing one another. The Division is well-placed to collaborate with the IPU to design programmes for parliamentarians on the implications of the Convention for law and policy making. It is also able to provide information on ratification or accession of the Optional Protocol. The DAW also has a well established technical assistance programme, whereby, upon the request of governments it provides training workshops at the regional, sub-regional and national level on preparation of reports required by the Convention. Its technical assistance programme will be expanded to respond to needs of States parties in their compliance with the Optional Protocol.

In 1999, the DAW raised extra-budgetary funds to convene a judicial colloquium for judges on how international human rights law, particularly relating to women and children, could be used at the domestic level in decision-making. The Division is planning to prepare an "accession kit" on the Optional Protocol directed at law- and policy-makers. This kit, which aims to demystify the Optional Protocol, will describe the procedures established by the Optional Protocol, the situations in which it can be used, including the pre-conditions required before a communication can be received by the Committee.

(Up to date information on the ratification status of the Convention and the Protocol as well as the Committee's work can be accessed from the DAW website at: http://www.un.org/womenwatch/daw.)