When, five years ago, KARAT Coalition launched a capacity-building program focused on promoting the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (Optional Protocol), knowledge about this mechanism was extremely low in Central and Eastern Europe and Central Asia (CEE-CA). Although the Optional Protocol was already widely ratified in the region, it was certainly underutilized. It also seemed that it was not well recognized as an important tool for advancing women’s rights. This was quite problematic in the region, where women’s socio-economic position is being constantly challenged by the revival of conservatism and fundamentalism and where the policies affecting the situation of women are so vulnerable to political changes.
Where gender-sensitive approaches are commonly lacking, states’ commitments to international treaties should be used as instruments for improving understanding and observance of women’s rights, freedoms and needs. The two procedures that the Optional Protocol provides – the communication procedure and the inquiry procedure – can play an important role in addressing these needs.
The communication procedure allows victims of alleged violations of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) to submit complaints to the Committee on the Elimination of Discrimination against Women (CEDAW Committee). This procedure is more than just a measure for seeking individual or group justice. It also has the potential to change discriminatory systems as a result of the comprehensive recommendations that the CEDAW Committee makes to State Parties in its views in favour of victims.
One of the aims of KARAT’s Optional Protocol campaign was to explore, together with its partner organisations in nine CEE-CA countries, potential communications under the Optional Protocol. The campaign identified a number of problems and barriers that hamper women’s access to the communication procedure, most of which appeared to relate to the requirement to exhaust domestic legal remedies.
Exhausting domestic remedies is a real challenge for women who suffer violations that are part of a widely accepted value system. Questioning this system exposes those women who claim their rights to ostracism, loss of livelihood and/or custody over children etc. Therefore, it is not surprising that women often do not even consider reporting violations of their rights, not to mention going through the process of seeking justice.
It is disappointing, then, that some of the Committee’s decisions under the Optional Protocol have lacked a gender-sensitive approach to the exhaustion of domestic remedies requirement in article 4(1) of the Optional Protocol. It would be helpful for improving women’s access to justice at the international level if the Committee (and other human rights treaty bodies) more carefully analyzed the reasons why a woman might not have been able to exhaust domestic remedies.
In 2010-2012, KARAT, together with its partner organisations in Azerbaijan, Kyrgyzstan, Poland, Tajikistan and Uzbekistan, explored the barriers that prevent women who experience discrimination from using domestic laws and international mechanisms, such as the Optional Protocol to CEDAW, to protect and claim their rights. Each country team focused on a different violation of women’s human rights: bride kidnapping (Kyrgyzstan); domestic violence (Azerbaijan and Tajikistan); denial of lawful abortion (Poland); and, violations faced by victims of trafficking (Uzbekistan). The general conclusion of these studies was that the CEDAW Committee must proactively address socio-cultural taboos that impede women’s access to justice at the domestic level.
The outcomes of the research are presented in the reports prepared by Azerbaijan Gender Association “Symmetry”, Forum of Women’s NGOs of Kyrgyzstan, Public Foundation “Panorama”, KARAT Coalition and Istiqbolli Avlod.
Hopefully, the General Recommendation on access to justice, which is now being developed by the CEDAW Committee, will enhance understanding of states’ obligations in this area and contribute to eliminating prejudices that so often influence the reality of women’s access to justice.
The Optional Protocol inquiry procedure seems to be an appropriate tool to address the barriers that impede women’s access to justice. This procedure could really contribute to a permanent change in the approach to women’s rights violations, to the perpetrators and the victims themselves. In particular, it could play a crucial role in the creation of a supportive environment for eliminating gender discrimination in access to justice. It is important to remember that domestic law systems are practically unavailable to victims of the widespread and socially-accepted grave violations of their rights.
Taking all this into account, KARAT believes that the inquiry procedure would be a good tool to address the systematic violation of women’s right to lawful abortion in Poland. Polish abortion law, though very restrictive, does allow pregnancy termination on some grounds. However, women entitled to it have no effective means to exercise their right in cases of denial. The appeals mechanism, which was established to protect patients’ rights, does not consider the specific needs of pregnant women (e.g., time limits) and, in fact, has never been used to claim the right to lawful abortion. It even seems to acts as a barrier to exhausting domestic legal remedies and well illustrates how discrimination in access to justice at the national level also limits access to it at the international level.
KARAT Coalition, Poland
25 June 2012
For more information about KARAT Coalition, see: http://www.karat.org