Will
NGOs and individuals be in a position to manipulate the OP-CEDAW?:
The potential for frivolous complaints brought before the CEDAW
Committee
Concern:
The optional protocol has the potential to be a tool to embarrass
and harass States Parties by individuals and groups who aim
to lodge communications and requests for inquiries on primarily
frivolous and vexatious motives. |
Response:
The concern that the OP-CEDAW would provide an avenue for individuals
to initiate frivolous and vexatious complaints against a State
Party is an issue that was discussed at length over the course
of the discussions of the open-ended working group which drafted
the Optional Protocol. In response to this concern, the working
group adopted several provisions that would minimise the potential
for such abuse. The working group drew on the experience of existing
human rights communications procedures as well as its own innovations
to overcome potential abuse of the protocol. The result is a protocol
which has concrete mechanisms and procedures by which a complaint
can be lodged or by which the inquiry procedure can be initiated.
They are as follows:
With regards
to the communications procedure:
-
Admissibility
criteria: The first stage after a communication is
submitted to a treaty body is the determination of its admissibility.
Admissibility of a communication is determined by formal admissibility
criteria which must be fulfilled in order for the expert body
to receive and consider a communication. If any of this criteria
is not met or remedied, a communication is declared inadmissible
on procedural grounds and no consideration of the merits occurs.
This will prevent the OP-CEDAW from being used to embarrass
the State Party concerned.
-
Proceeding on the merits of the claim: The
decision declaring a communication admissible is confidentially
relayed to the State Party and to the author of the complaint.
This provision was adopted out of respect for the integrity
of both the State Party and the complainant. The confidentiality
provisions are an important concession to States Parties who
may be hurt by negative publicity regarding their compliance
with the CEDAW Convention, especially if the alleged violations
of the Convention are untrue. In all cases, the State will be
provided with opportunities to respond and submit information
on the alleged violations.
With regards
to the inquiry procedure:
-
The
inquiry procedure operates much like the communications procedure
in its respect for the confidentiality, cooperation and input
of the State Party. However, there are fewer procedural requirements
involved in initiating an inquiry. In effect the inquiry procedure
is initiated at the discretion of the CEDAW Committee given
“reliable information indicating grave or systematic violations”
(Article 8(1)). As a result, while the value of an inquiry procedure
to an Open-Ended Working Group was appreciated by most delegates,
some delegates were concerned about its potential for inspiring
false claims against governments.
The
underlying concern was that such a procedure would expose the
CEDAW Committee to charges of selectivity and political bias
as resource limitations would not allow the Committee to undertake
any number of inquires. It was argued that while the Convention
Against Torture (CAT) has a similar inquiry procedure, the OP-CEDAW
is broader than this instrument in that it allows more discretion
to the CEDAW Committee with regard to the threshold of evidence
required to initiate the procedure. Further, from a tactical
perspective, it was argued that the inclusion of a mandatory
inquiry procedure would deter many States Parties – who
would otherwise adopt the communications procedure – from
adopting the protocol. In response to these sentiments, the
Chairperson introduced a provision which would allow States
Parties, upon signature, ratification or accession to the OP-CEDAW,
to be in a position to declare that they do not recognise the
competence of the Committee under its Articles 8 and 9 of the
protocol. Article 10 ultimately became the “opt-out”
clause for the inquiry procedure, allowing the inquiry procedure
to be non-binding for States Parties that so desired.
It
is important to note however, that States Parties that decide
to “opt-out” of the inquiry procedure upon ratification/accession,
have the possibility to “opt-into” the inquiry procedure
in the future.
This
page was last updated on August 16, 2004
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