Q:
What are the requirements for submitting a communication on
behalf of victims?
A: The victim's consent is normally required in order to submit
a communication on her behalf. Evidence of consent can be offered
in the form of an agreement to legal representation, power of
attorney, or other documentation indicating that the victim
has authorized the representative to act on her behalf.
Q: When can a communication
be submitted without the victim's consent?
A: A communication can be brought on behalf of victims without
their consent if the individual or group submitting it can
'justify' acting on the victims' behalf. For example, an activist
or an organisation seeking to bring a communication on behalf
of a very large group of individuals (a "class"
of victims) might argue that it is impractical to get consent
from each victim; or that the victim faces a risk of ill-treatment
or other retaliation, including physical injury or economic
loss, if she consents to the communication on her behalf;
or that the victim is unable to give her consent for any reason,
including detention or other confinement, serious ill health,
or the lack of legal authority to consent; or any other circumstance
in which it would be unreasonable to require the victim's
consent.
Q:
How will the CEDAW Committee decide if a State has a duty to
take action?
A: It will analyse the language of specific articles and then
consider any interpretations of that language or similar language
in other human rights instruments. The CEDAW Committee could
refer to its own General Recommendations, established interpretations
of other human rights instruments that have provisions similar
to those in CEDAW, and other sources of international law, such
as the opinions of scholars and consensus regarding best practice
as reflected in commitments made in plans of action adopted
at various UN World Conferences.
Q: What is the criteria to determine that the harm to the
victim is due to a violation by the States party?
A: The harm must be causally linked to an act by the States
party or a failure to take action required under CEDAW.
Q: Can the Communications Procedure be used to deal with
violations by private individuals, groups or enterprises?
A: Yes. The OP-CEDAW allows individuals to seek remedies for
violations by non-governmental individuals, groups or enterprises
because CEDAW itself applies to such violations. For example,
if a private employer is violating the rights of women workers,
a case may be brought against the State for failing to take
steps to prevent or respond to the employer's actions.
Q. What if the case is being, or has been, examined under
another procedure of "international investigation or settlement"?
A: It will be declared inadmissible if it concerns the "same
matter". To determine whether it is "same matter",
the CEDAW Committee will consider both the facts underlying
the claim and the content of the rights in question. If the
committee finds that the facts have changed significantly, or
the claims raised through the other international procedure
concerned different rights or obligations (even though the facts
were the same), it may admit the communication.
Q: What is considered a procedure of international investigation
or settlement?
A: The procedure must provide for (a) consideration of the facts
of the specific case; (b) an opportunity for both the victim
and the States party to submit their arguments; (c) a finding
that the States party has (or has not) violated specific legal
obligations; and (d) the identification of remedies for the
victim. For example, you can submit a communication under the
OP-CEDAW about a case that has already been sent to the Special
Rapporteur on Violence Against Women, because a reporting procedure
of that type is not another procedure of international investigation
or settlement. If a claim can be raised under more than one
treaty, you should compare the strategic and substantive advantages
of the OP-CEDAW to the other procedures.
Q. What constitutes an "abuse of the right" to
submit a communication?
A: It will be considered an abuse of the right to submit a communication
if the author's purpose in submitting the communication is to
harass or defame an individual or some other malicious intent,
or if the claim that has been previously found by the CEDAW
Committee to be unfounded.
Q: Can a communication deal with a violation that took place
before the State ratified the OP-CEDAW?
A: The CEDAW Committee will declare a communication inadmissible
if it deals with a violation that occurred before the States
party's ratification became effective, unless the violation
is continuing. If the violation began before ratification but
the facts giving rise to the communication are ongoing, or the
States party fails to remedy the ongoing consequences of a past
violation, the CEDAW Committee can admit the communication.
In the case of a failure to remedy the ongoing consequences
of a past violation, the State's inaction can be can be viewed
as an affirmation of its previous violation.
Q:
What is the obligation of a States party once the CEDAW Committee
transmits its views and recommendations?
A: Within six months the States party must inform the CEDAW
Committee about any action taken in response to its views
and recommendations. Article 2 of CEDAW creates general obligations
to implement this convention. This implies a duty to eliminate
laws, policies and practices that the CEDAW Committee has
found to be discriminatory and a duty to take steps to prevent
similar violations in the future.
Q:
After this initial response from the States party, can the CEDAW
Committee continue to monitor the action taken in response to
its recommendations?
A: Yes, the OP-CEDAW and the CEDAW Committee's Rules of Procedure
provide for follow-up measures that will enable this expert
body to monitor the steps taken to implement its view and recommendations.
The CEDAW Committee may request the States party to provide
additional information in its periodic reports under CEDAW and
may appoint a special rapporteur or working group to follow-up.
The Rules of procedure authorise the special rapporteur or working
group to make "contacts and take such action" as appropriate.
Q: What
would be "appropriate" follow-up measures that the
CEDAW Committee could be urged to take?
A: Examples of action that might be appropriate include publicising
the CEDAW Committees follow-up activities through the media;
including a separate chapter on follow-up activities under the
OP-CEDAW in the CEDAW Committee's annual report, with detailed
information about action and inaction by States parties; establishing
direct contacts with national officials; inviting NGOs to submit
information; or conducting on-site follow-up missions by the
special rapporteur or working group at the invitation of the
States party.
This
page was last updated on November 1, 2003
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