The Optional Protocol to CEDAW was adopted by the UN General Assembly in 1999. It is an international treaty that establishes an inquiry and complaints procedure for individuals or concerned groups to bring cases of violations under CEDAW to the Committee. Generally, this procedure happens only after all domestic remedies have been exhausted.1For more information please see: IWRAW Asia Pacific. (2009). IWRAW Asia Pacific Occasional Papers Series No. 13: The OP-CEDAW as a Mechanism for Implementing Women’s Human Rights: An analysis of decisions Nos. 6–10 of the CEDAW Committee under the Communications procedure of the OP-CEDAW.
The complaints procedure (also called the communications procedure) allows individuals and groups of individuals to send petitions to the CEDAW Committee about a violation of their rights under CEDAW.2There are certain prerequisites to be able to apply to this procedure, detailed in CEDAW’s official website (the complaints procedure heading can be found below the column on the left). This procedure allows the Committee to look into a case-by-case context of women’s human rights in party States. On the other hand, the inquiry procedure allows the CEDAW Committee to undertake an inquiry process into one or more ‘serious, grave or systematic violations’ of the rights enshrined in the Convention by a State party. This inquiry may or may not include a visit to the concerned State party.3The conditions and rules to the inquiry procedure can be found here.
Decisions made through the Optional Protocol, especially in the case of the complaints procedure, can take several years to reach their final conclusion. This does dissuade some women’s organisations from engaging in advocacy with these processes. However, the Optional Protocol presents a vital process for recognition of violations of women’s human rights, in a more specific way than can happen through the reporting process to the CEDAW Committee.
It can also provide an avenue for building international-level case law on gender and other forms of discrimination, including relief measures that governments must take when discrimination is proven. This approach can be particularly helpful when a country does not have strong domestic case law or legislation on non-discrimination and equality obligations. Furthermore, the recognition of these violations by the Committee strengthens the understanding and recognition of women’s human rights and how they are violated, especially in areas where governments may argue that the law or policy under review is ‘gender-neutral’.
An example of the Optional Protocol in use: Gender equality and privatisation
Communication No. 17/2008 of the CEDAW committee on the case of Maria de Lourdes da Silva Pimentel v. Brazil represents a helpful example of how the due diligence responsibility of the States can be interpreted for the need to prevent or remedy the women’s human rights violations of private entities.
In this complaint, Ms. Silva Pimental was not able to receive the necessary medical treatment from a private health institution during her pregnancy. The Committee decided that “in accordance with Article 2(e) of CEDAW the State has a due diligence obligation to take measures to ensure that the activities of private actors in regard to health policies and practices are appropriate. The State is directly responsible for the action of private institutions when it outsources its medical services, and has the duty to regulate and monitor private health-care institutions.”
When concluding on their decisions, the Committee will look into the language of the related articles of the Convention and/or to similar human rights instruments, as well as its own General Recommendations or Concluding Observations. Other sources of international law (such as opinions of scholars and consensus regarding best practices), and also established interpretations under other human rights mechanisms, are also resources the Committee may consult when giving their decisions on a specific case within the Optional Protocol mechanism.
As the Committee can use other international human rights instruments to drive and/or support their decision, this intersectional approach can also be a helpful tool for women’s rights organisations to strengthen their advocacy through CEDAW and other processes, such as the ICESCR, SDGs, and other international-level advocacy possibilities (which we will examine further in the later sections).
Civil society can play a critical role in ensuring that these processes are informed and inspired by each other, that one suggestion in a monitoring body is supported in another body. Such advocacy can make visible the gaps and omissions in states’ implementation of their responsibilities in a wide array of issues.
- 1For more information please see: IWRAW Asia Pacific. (2009). IWRAW Asia Pacific Occasional Papers Series No. 13: The OP-CEDAW as a Mechanism for Implementing Women’s Human Rights: An analysis of decisions Nos. 6–10 of the CEDAW Committee under the Communications procedure of the OP-CEDAW.
- 2There are certain prerequisites to be able to apply to this procedure, detailed in CEDAW’s official website (the complaints procedure heading can be found below the column on the left).