Overview of the Communication Procedure
The communications procedure is a mechanism through which an individual or a group of individuals from within the jurisdiction of a State party to the CEDAW Convention and the OP-CEDAW, can bring an alleged violation of a woman’s right enshrined by the CEDAW Convention to the attention of the CEDAW Committee.
It is a mechanism designed for use by an individual or a group of individuals seeking redress for a specific violation(s) resulting from an act or omission by a State party. By ratifying or acceding to the OP-CEDAW, a state acknowledges the competence of the CEDAW Committee to provide views and recommendations regarding written communications alleging violations of rights set out in the CEDAW Convention.
The communications procedure offers the individual an opportunity to access and claim rights guaranteed at the international level, which have not been implemented or are not enforceable domestically. It can be viewed as an extension into the international arena of domestic legal procedures.
The communications procedure:
- Provides an opportunity for specific redress in individual cases when a state violates women’s human rights;
- Provides the possibility of international redress for women who have been denied access to justice at the national level;
- Allows the CEDAW Committee to highlight the need for more effective remedies at the national level;
- Allows the CEDAW Committee to develop a new body of jurisprudence on how to guarantee women’s human rights;
- Assists States parties in determining the content of their obligations under the CEDAW Convention and thus assists them in implementing those obligations.
Source: Confronting Discrimination: The Convention on the Elimination of All forms of Discrimination against Women and its Optional Protocol. Handbook for parliamentarians. 2003. Inter-Parliamentary Union. p. 77
The communications procedure differs from many other CEDAW procedures (such as the consideration of States parties’ reports or even the inquiry procedure) in that, rather than addressing the overall advancement of women within a country, it applies to particular violations of individual rights. In this way, it reflects the similar communications procedures of the Convention Against Torture (CAT), the International Covenant on Civil and Political Rights (ICCPR) and the Convention on the Elimination of Racial Discrimination (CERD).
The communications procedure is established in Articles 1 to 7 of the OP-CEDAW. The proceedings for consideration of communications can be found in Section XVI of the Rules of Procedure [Rules 56 to 75].
Articles 2 through 7 of the OP-CEDAW set out the conditions and procedures by which an individual complaint may be lodged and considered by the CEDAW Committee. The Communications Procedure enables women to lodge a communication with the committee claiming a violation of the rights contained in the CEDAW Convention.
For a communication to be considered, it must first meet a series of procedural requirements. When this happens, the CEDAW Committee will then consider the substantive issues raised by the communication. At the final stage, the committee will issue its views, along with recommended actions to address any violations of rights contained in the CEDAW Convention.
Thorough research and preparation in the initial stages of lodging a communication with the CEDAW Committee can help avert delays and disappointments in the course of the process.
Stage 1: Submission and registration of the communication
Step 1: Individual or group of individuals submit a communication
The first step in lodging a complaint is to submit a formal communication. Articles 2 [Rule 67, 68] and 3 Article 3 [Rule 56, 67] of the OP-CEDAW set out the pre-admissibility requirements for who may submit a communication and in which format the communication must be submitted. These pre-admissibility criteria are non-negotiable and the CEDAW Committee has no discretion in overriding their requirements.
Stage 2: The admissibility test
Step 2: The CEDAW Committee determines the admissibility of the communication
At this point, given that the communication satisfies the requirements of submission, the CEDAW Committee must decide whether the communication is admissible. Article 4 of the OP-CEDAW [Rule 67] sets out the two main criteria by which the CEDAW Committee determines the admissibility of a communication. While these criteria mandate concrete conditions that must be established before the complaint can go on to be heard on its merits, the CEDAW Committee is allowed some amount of discretion in its admissibility rulings based on the circumstances of the communications.
Stage 3: The initial review
Step 3: (Discretionary): The CEDAW Committee requests the State party to take interim measures regarding the alleged violation(s)
Upon receiving a complaint, Article 5 [Rule 63] (link: http://www.iwraw-ap.org/protocol/rules_procedure.htm) allows the CEDAW Committee, at its discretion, to urge the relevant State party to take interim measures in order to “avoid irreparable damage to the victim or victims of the alleged violation”.
Step 4: The CEDAW Committee submits the communication to the State party
Once a communication has been deemed admissible, Article 6(1) [Rule 69] mandates the CEDAW Committee to confidentially submit the communication to the relevant State party. The identity of the complainant will also be submitted to the State party, provided said complainant has given consent to disclose her identity.
Step 5: The State party provides explanation/clarification of the alleged violation(s)
Once the State party has received the complaint, Article 6(2) [Rule 69] allows it to provide, within six months, written explanations or clarifications of the complaint. The State party at this time may also report on any remedies, if any, that have been granted in regard to the complaint for the CEDAW Committee’s consideration.
Stage 4: Consideration of the merits
Step 6: The CEDAW Committee considers the communication in-depth
Once it has received all of the relevant information about the communication, the CEDAW Committee shall proceed to deliberate on its merits. The committee relies on “all information made available to it by or on behalf of individuals or groups of individuals and by the state Party concerned” to inform its deliberations (Article 7(1)) [Rule 72].
Stage 5: Views, recommendations and follow-up
Step 7: The CEDAW Committee arrives at views and recommendations on the communication
Once the CEDAW Committee has had a chance to deliberate on the communication, it will arrive at its final views about this. If it finds that the State party had engaged in the violations alleged in the communication, the committee will make recommendations to the relevant State party regarding its obligations to remedy this situation. Article 7(3) [Rule 72] mandates the CEDAW Committee to transmit its views and recommendations to the concerned parties to the communication.
Step 8: The State party responds to views and recommendations of the CEDAW Committee
Once the views and recommendations of the CEDAW Committee have been transmitted to the State party, Article 7(4) [Rule 73] mandates that the relevant State party must take “due consideration” of this. In addition, within six months the State party must submit to the CEDAW Committee a written response to these views and recommendations including any relevant action that has been taken.
Step 9 (Discretionary): The CEDAW Committee requests the State party for a follow-up response to its views and recommendations
In addition to the State party’s written response to its views and recommendations regarding the communication, Article 7(5) [Rule 73] allows the CEDAW Committee, at its discretion, to request the State party to submit further information about the measures that it Party has taken in response to the committee’s views and recommendations.