Q:
How does one decide which international or regional procedure
is the best means of seeking redress for a violation?
A: One should consider all available procedures in deciding
where to bring a case. The prohibition of discrimination on
the basis of sex applies to all human rights. Other human rights
bodies should be asked to develop interpretations of the relevant
treaty standards that take women's human rights fully into account.
The ICCPR, CERD and CAT all have Communication Procedures and
CAT also has an Inquiry Procedure. For example, if a State is
party to the ICCPR, the Human Rights Committee (HRC) may be
a good forum for cases involving formal equality and clear violations
of women's civil or political rights (such as the denial of
women's right to vote, discriminatory nationality laws or discriminatory
inheritance laws). The case law of the Human Rights Committee
can be influential because its members have included well-known
legal scholars and judges. You can begin to gather information
then decide which is the best strategy.
Q: How is a conflict between the provisions of CEDAW and
national law decided if national law does not give international
obligations priority?
A: The CEDAW Committee's views and recommendations will be based
on the CEDAW Convention. At the national level, courts or legislatures
must determine how to resolve a conflict between domestic law
and CEDAW, by referring to national law, doctrine or constitutional
provisions governing such conflicts.
Q: Can communications be brought for violations by transnational
enterprises? Can violations by transnational enterprises be
the subject of an inquiry?
A: A communication concerning violations by transnational enterprise
could be brought against the States party to the OP-CEDAW which
granted the transnational enterprise legal recognition as a
juridical entity (through registration or incorporation) and
against the Statse party which entered into the agreement that
authorised the enterprise to operate in its territory. In either
case, the CEDAW Committee would have to determine first whether
the States party had a duty to regulate the conduct of the transnational
enterprise so as to prevent the violation(s) and to investigate
and respond to violations. It would then determine the scope
of that duty and whether the facts indicated that the State
failed to meet its obligation. A similar analysis could be used
to trigger an inquiry if the violations are grave or systematic
in nature.
Q: What about women who are not in their native countries,
because of economic migration, trafficking, seeking asylum/refugee
status etc. Does the OP-CEDAW apply to them?
A: The OP-CEDAW applies to all women within the borders of States
parties. Women living in a country where they are not nationals
are still entitled to all the rights and freedoms provided for
in the CEDAW Convention and the OP-CEDAW. Its is important to
remember however that complaints made through the OP-CEDAW will
only be admissible of the violation experienced is based on
sex. If discrimination is based on political belief, race, ethnicity
etc. it should be taken to another forum.
Q: Where a woman has been trafficked from one States party
to another, which jurisdiction is she to be considered under
for the purposes of submitting a communication? Can she bring
an action, for example, both against the original State for
failing to prevent her from being trafficked and against the
State to which she is trafficked for failing to punish the traffickers?
A: Yes, because the woman was within the jurisdiction of two
States parties, both of which were under an obligation to prevent
a violation of her rights, she can in theory bring an action
against both States. It does not matter that she might be a
citizen of one State and be considered 'illegally' residing
in the other. Both States have violated provisions of the CEDAW
Convention and can be held accountable.
Q: Can the CEDAW Committee consider a communication and conduct
an inquiry into the same set of facts at the same time?
A: The CEDAW Committee could consider a communication from a
victim who is seeking remedies for a specific violation of her
rights that occurred in the context of systematic violations
being considered under the inquiry procedure. For example, it
could initiate an inquiry into systematic trafficking in women
and admit a communication from individual women seeking compensation
for violations committed against her when she was trafficked.
NGOs could investigate and document systematic violations in
order to submit information to the CEDAW Committee that will
trigger an inquiry and also file communications on behalf of
individual victims whose cases they document while investigating
the broader situation. The CEDAW Committee would not consider
a communication that concerns a violation against a woman whose
case is being investigated under the inquiry procedure as a
single "grave" violation, as this would amount to
the "same matter" and be an inappropriate use of the
committee's resources.
Q: Can a States party withdraw from the OP-CEDAW while a
communication against it is being considered or opt-out of the
Inquiry Procedure after the CEDAW Committee has begun an inquiry
into violations it is reportedly committing?
A: States parties can "denounce" (withdraw from) the
OP-CEDAW, but it takes six months for the denunciation to take
effect. Denunciation will not affect an inquiry or complaint
already in process before the effective date of denunciation.
Q: Where can I find out the process by which my government
can become a States party to the OP-CEDAW?
A: The process of ratification and accession of international
treaties is usually contained in national constitutions. You
may also want to approach members of parliament or representatives
of your Ministry of Foreign Affairs.
Source:
Donna J. Sullivan, "Commentary on the Optional Protocol
to the Convention on the Elimination of All Forms of Discrimination
Against Women" in Optional Protocol. Convention on the
Elimination of All forms of Discrimination Against Women.
(IIHR, 2000).
This
page was last updated on November 1, 2003
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