Key considerations

This page sets out, in brief, key considerations with regards to a communication under OP-CEDAW. For a more detailed document, please download this PDF document.

The State

The Communications Procedure is a mechanism for individuals to access redress from a State party which, by virtue of an act or an omission, has failed protect or guarantee rights outlined in the CEDAW Convention. Therefore:

• Individual complaints under the OP-CEDAW can only be brought against a State.
  
  
• Communications submitted to the CEDAW Committee therefore, can only be brought against States parties to both the CEDAW Convention and its Optional Protocol.
  Click here for list of States parties to the OP-CEDAW.
• The OP-CEDAW must either (a) have been in force within the States party at the time when the violation(s) occurred; or (b) the violation(s), although occurring before the advent of the Optional Protocol within the State, constitute on-going violations, the interconnected effects of which continue after the Optional Protocol came into effect.

In addition to the above, it is useful also to remember that a State party to the OP-CEDAW has certain obligations under this treaty.

• Jurisdiction

There is no requirement that the individual woman or group of individuals who claim to be victims of the violations concerned be citizens or even residents of the State party against whom the communication is being submitted, e.g. refugees, trafficked women and illegal immigrants.

The violation must, however, have occurred at a time when the individual(s) was subject to the jurisdiction of the State party concerned. While in the majority of communications this will mean that the individual, at the time the violation occurred, was physically present within the territory of the state party, this need not necessarily be the case always since international law recognises that a state’s “jurisdiction” is not limited to its territory.

Source: Inter-American Institute of Human Rights. Optional Protocol. Convention on the Elimination of All Forms of Discrimination against Women. San Jose: 2000. p44

• Reservations

When a State party has entered a reservation to an article of the CEDAW Convention – thereby indicating that it does not consent to be bound by the obligation contained in that article – a communication based on a violation of such an obligation will generally be considered inadmissible.

Even so, historically, the CEDAW Committee has been vocal about reservations that it deems contrary to the object and purpose of the convention. Where a communication is based on an article reserved by the State party, and the CEDAW Committee considers that reservation to be contrary to the object and purpose of the convention, it may consider it appropriate to treat the obligation as binding on the State party, regardless of the reservation.

Moreover, there is no limitation to the number of articles that can form the basis of a communication. While a communication might fail if based on one article which has been reserved, a communication based on several articles can continue to be considered with reference to the non-reserved articles.

The CEDAW Committee is currently considering a working paper on the practice of other human rights treaty bodies in relation to communications concerning any provisions of their relevant treaties which are subject to reservations. The Committee has not yet pronounced itself on the legal effect of reservations in the context of individual communications. The question as to whether the Committee considers that the determination of the permissibility of a reservation falls within its functions in the examination of an individual communication thus remains open.

See also Practical Application of the CEDAW Convention. (link: )

• Domestic remedies

States parties to CEDAW have an obligation to ensure there are national mechanisms and remedies to enable women who experience gender/sex discrimination to seek redress and thus, access justice. Domestic courts and domestic laws should protect against the infringement of any or all rights allocated to women by virtue of the CEDAW Convention. For this reason, as well as to avert frivolous claims, and to encourage States parties to provide effective remedies for violations of the CEDAW Convention, a communication submitted prior to the exhaustion of domestic remedies will not normally be admitted for consideration by the CEDAW Committee.

The requirement that all domestic remedies must be explored and exhausted before seeking remedies from an international forum is one of the basic rules in international law. Nevertheless, the requirement to exhaust domestic remedies is not absolute and should not constitute an impediment to accessing international remedies. Both the OP-CEDAW and the jurisprudence of international human rights law provide for exceptions to this rule, for instance, in situations where no remedies for the violation are available, where the remedies available are “unreasonably prolonged” (i.e. unreasonably time-consuming) or where remedies are “unlikely to bring effective relief”.

Victim/author of communication

Only individuals who have “standing” can bring initiate or bring forward a communication. The requirements for “standing” are outlined in Article 2 of the OP-CEDAW:

“Communications may be submitted by or on behalf of individuals or groups of individuals, under the jurisdiction of a State Party, claiming to be victims of a violation of any of the rights set forth in the Convention by that State Party. Where a communication is submitted on behalf of individuals or groups of individuals, this shall be with their consent unless the author can justify acting on their behalf without such consent.”

Communications can also be brought by or on behalf of the individual(s) whose rights have been violated (e.g. a mother on behalf of her daughter or an NGO on behalf of a woman or group of women). Those communications brought on behalf of an aggrieved individual or group, however, have the additional requirement of having obtained the consent of the woman or women aggrieved. In situations where the consent of the individual or group of individuals has not been secured, the lack of consent must be justifiable.

It is noteworthy that the person(s) or organisation lodging the communication on behalf of another need not be within the jurisdiction of the States party concerned.

Source: Inter-American Institute of Human Rights. Optional Protocol. Convention on the Elimination of All Forms of Discrimination against Women. San Jose: 2000. pp41-44.

• Anonymity

For a complaint to be considered by the CEDAW Committee, the identity of the alleged victim(s) and the author of the complaint (if different) must be disclosed in the communication. At this stage, the author/individual(s) will be informed that if the individual(s) consent to the disclosure of her/their identity to the State party concerned, the communication will be brought to the attention of that State party. In turn, the State party has to ensure that details of the communication remain confidential. Should the individual(s) fear retaliation from the State party as a result of bringing the communication, however, a request can be made that the identity of the individual(s) and/or author not made known to the State party and/or the public.

Anonymity should be differentiated from confidentiality.

• Confidentiality

In situations where an individual(s)/author(s) fear that submitting a communication may result in threats or actual retaliation by agents of the state or those directly responsible for the violations (e.g. a community, a company, etc) the CEDAW Committee has developed procedural safeguards. Thus, although communications cannot be made anonymously, requests to shield the identity of the author(s) and/or individual(s) will be considered by the CEDAW Committee.

Moreover, it must be noted that the States party is under an obligation “to take all appropriate steps to ensure that individuals under its jurisdiction are not subjected to ill treatment or intimidation as a consequence of communicating with the Committee” (CEDAW Optional Protocol Article 11).

See also Rule 74

• Interim measures

At any stage of the Communication Procedure, the CEDAW Committee, working group or rapporteur may request that the State party concerned “take such interim measures as the Committee considers necessary to avoid irreparable damage to the victim or victims of the alleged violation” [Rule 63].

This rule is for situations where the victim(s) may be at risk of imminent harm (e.g. torture or execution), and cannot wait for the potentially timely resolution of the Communication Procedure before receiving protection. In such cases, the CEDAW Committee may ask the State party to provide the victim with interim measures.

The CEDAW Committee takes special care to note that such a request is not indicative of its views on whether the State party has breached its obligations: it is not a determination of the merits of the case. Neither does such a request prejudice any future submissions made by the State party on the admissibility or merits of the communication.

Other International Mechanisms

As a general rule, if the subject of the communication is the same – i.e. same author(s), same victim(s), similar alleged violations – as that which has previously been examined by the CEDAW Committee or has been/is being examined by a procedure of another international investigation or settlement (e.g. the HRC, CAT, CERD, CRC, the European Court of Human Rights, the Inter-American Court of Human Rights, the Human Rights Council , the African Commission on Human and Peoples’ Rights) it will be deemed inadmissible by the CEDAW Committee.

Not all international procedures, however, constitute “procedures of international investigation or settlement”.