OP CEDAW Overview
An optional protocol is a treaty that complements and adds to an existing human rights treaty. For this reason, only States that have already agreed to be bound by a parent treaty may be considered as parties to optional protocols.
There are only two kinds of optional protocols:
a) Those that address a new substantive area that has not been included in the original text of a treaty. For example the Second Optional Protocol to the International Covenant on Civil and Political Rights which considers the question of the abolition of the death penalty; and
b) Those that address procedural aspects that may affect the way a treaty operates and is enforced. For instance, by creating new compliance mechanisms as in the case of the Optional Protocol to CEDAW.
Most optional protocols establish grievance procedures by which individuals and groups of individuals can file formal complaints in cases where States have violated rights set forth in a human rights treaty. In this connection, when an optional protocol creates one or more enforcement mechanisms, the monitoring body established by the parent treaty administers these. It is important to note that by means of complaints and inquiry procedures, treaty bodies are further enabled to elaborate on the meaning of the provisions of the parent convention/covenant and contribute to the development of international jurisprudence on the subject of the treaty.
The majority of UN human rights treaties have optional protocols attached. The International Covenant on Civil and Political Rights (ICCPR) has two optional protocols, the first which enables individual complaints to be brought to the Human Rights Committee, while the second, as mentioned, deals with the death penalty. Further, the Convention Against Torture (CAT) and the Convention on the Elimination of All Forms of Racial Discrimination (CERD) have articles enabling individual communications. In fact, CAT also has an inquiries procedure that enables its Committee to investigate gross and systematic violations.
Although it is important to keep all optional protocols in mind, this website focuses on the OP-CEDAW.
It is a human rights treaty that complements the CEDAW Convention. The human rights guarantees established by the CEDAW Convention are far-reaching. This treaty seeks to:
- Eliminate discrimination against women in the exercise of their economic, social and cultural rights as well as civil and political rights
- Eliminate discrimination against women in public and private or family life; and
- Sanction discrimination perpetrated by both government officials and non-governmental individuals, groups or enterprises.
However, the gap between the promise of the CEDAW Convention and the reality of women's lives remains significant. Despite the challenges ahead, the OP-CEDAW goes a long way towards bridging this gap.
The OP-CEDAW creates access to justice for women at the international level. In itself, this treaty does not create new substantive rights. What it does is allow women who have been denied access to their rights as enshrined in the CEDAW Convention at the national level to have their claims reviewed by a committee of independent experts that monitors compliance with the CEDAW Convention.
The OP-CEDAW constitutes a separate treaty and must be independently ratified or acceded to by governments that are already CEDAW Convention States parties. As of December 2013, there are 104 OP-CEDAW States parties. This means that out of the 188 States parties to the CEDAW Convention, 84 are not bound by the OP-CEDAW (source).
It is a human rights treaty that establishes two additional procedures aimed at addressing violations of women's rights.
The OP-CEDAW provides a mechanism through which the rights contained in the CEDAW Convention can be interpreted and applied. It establishes:
- A Communications Procedure through which the CEDAW Committee can review complaints to decide if rights guaranteed by the CEDAW Convention have been violated and identify remedies for victims; and
- An Inquiry Procedure through which the CEDAW Committee can launch an inquiry into grave or systematic violations on its own initiative.
Both the communications and inquiry procedures allow the CEDAW Committee to issue its views and recommendations for addressing women's human rights violations in particular contexts/situations as means to further promote the implementation of the CEDAW Convention at the national level. However, it is important to note that from the moment the CEDAW Committee receives a communication or initiates an inquiry, it works within a set of rigid Rules of Procedure.
- The OP-CEDAW does not create new substantive rights. It creates procedures for addressing and redressing violations of rights established in the CEDAW Convention. The CEDAW Convention and the OP-CEDAW act as a pair.
- The OP-CEDAW is a separate treaty. Only States parties to the CEDAW Convention can become States parties to the OP-CEDAW. A State has to ratify or accede to the OP-CEDAW in order to become bound by it.
- The OP-CEDAW is an optional undertaking. States parties to the CEDAW Convention are not obliged to ratify or accede to the OP-CEDAW. They can, however, be encouraged to do so by civil society or NGO campaigns for ratification.
- The Communications Procedure and Inquiry Procedure are not mutually exclusive. Nothing prevents the submission of an individual communication based on the same circumstances that have triggered an inquiry