Can
individuals launch communications on Articles of the Convention
that have been reserved?: The applicability of the OP-CEDAW to
existing reservations by States Parties
Concern:
The OP-CEDAW does not commit to respect the substantive reservations
lodged by States Parties with regard to the CEDAW Convention. |
Response:
Under the OP-CEDAW, the issue of the CEDAW Committee’s powers
in relation to reservations to the CEDAW Convention is not explicitly
addressed. Thus, it does not provide any guidance as to whether
the Committee can proceed to hear a case falling within the substantive
scope of a reservation if it were to consider that the reservation
is invalid on the ground of incompatibility with the object and
purpose of the CEDAW Convention. While the CEDAW Committee itself
has expressed clear views on the incompatibility of some types
of reservations with the object and purpose of the Convention,
the CEDAW Committee might likely be guided by the experience of
the Human Rights Committee in dealing with such a case. That is,
in the case of reservations deemed compatible with the object
and purpose of the Convention, the CEDAW Committee would first
consider whether the reservation applied to the subject matter
of the communication. If it did, the Committee would not be empowered
to proceed further with its consideration of the communication.
On the other hand, if the Committee found that the reservation
conflicts with the object and purpose of the Convention and the
communication fell within the scope of the incompatible reservation,
it could go forward on the merits of the complaint. The possibility
that the Committee will be in a position to hear complaints about
the legitimacy of reservations by States Parties provides an opportunity
to strengthen compliance to the CEDAW Convention as a whole.
Source:
“Understanding the Optional Protocol to the Women’s
Convention: A Guide to Adoption”. Written for IWRAW Asia
Pacific by Laboni Amena Huq (1999).
