Victim/author of communication

Who can bring/initiate a communication?

Only individuals who have “standing” can bring initiate or bring forward a communication. The requirements for “standing” are outlined in Article 2 of the OP-CEDAW:

“Communications may be submitted by or on behalf of individuals or groups of individuals, under the jurisdiction of a State Party, claiming to be victims of a violation of any of the rights set forth in the Convention by that State Party. Where a communication is submitted on behalf of individuals or groups of individuals, this shall be with their consent unless the author can justify acting on their behalf without such consent.”

During the drafting process of the OP-CEDAW, supporters were extremely vocal in their support for an optional protocol that would permit communications to be brought both by and on behalf of women whose rights had been violated. While some States parties that participated in the OP-CEDAW negotiations were wary that allowing those acting on behalf of an individual or individuals to file communications might give rise to frivolous or hypothetical cases being brought under the OP-CEDAW, there was an awareness that not all victims of violations would be in a position – financial, physical, personal or otherwise – to lodge and pursue a communication themselves.

To this end, the OP-CEDAW permits communications to be lodged “on behalf of individuals or groups of individuals”, a provision welcomed by NGOs and other organisations representing the most disadvantaged women and those whose personal situation, be it isolation, illiteracy, lack of awareness or fear, does not permit them to access and enforce their rights.

Communications can therefore be brought by or on behalf of the individual(s) whose rights have been violated (e.g. a mother on behalf of her daughter or an NGO on behalf of a woman or group of women). Those communications brought on behalf of an aggrieved individual or group, however, have the additional requirement of having obtained the consent of the woman or women aggrieved. Acting as a safeguard against hypothetical or abusive communications, in practice this requirement of consent ensures the communication is brought by those who have a sufficiently close connection to the original alleged violation. It also ensures authors of a communication are committed to representing the best interests of the alleged victims, keeping their well-being and welfare as a priority. Evidence of consent can be in the form of an agreement to legal representation, power of attorney, or other documentation indicating that the victim has authorised the representative to act on her behalf.

In situations where the consent of the individual or group of individuals has not been secured, the lack of consent must be justifiable. For example, where an activist or an organisation seeks to bring a communication on behalf of a very large group of individuals (a “class” of victims), it might be argued that it is impractical to get consent from each victim. Or alternatively, where a 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 where 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.

It is noteworthy that the person(s) or organisation lodging the communication on behalf of another need not be within the jurisdiction of the States party concerned.

Source: Inter-American Institute of Human Rights. Optional Protocol. Convention on the Elimination of All Forms of Discrimination against Women. San Jose: 2000. pp41-44

 

Anonymity | Confidentiality | Interim measures