Madhu Mehra of Partners for Law in Development in India debunks a number of myths related to the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (Optional Protocol)
It is worth probing why only 104 of the 186 state parties to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) have ratified the Optional Protocol. What holds State Parties committed to implementing the substantive obligations of CEDAW back from embracing additional mechanisms of redress that advance women’s equality? The communications procedure for individual complaints to CEDAW, and the inquiry mechanism that allows the Committee to respond to grave and systematic violations of rights under CEDAW can only be a step forward for a State Party committed to fighting discrimination and implementing equality for women. Yet, there seems hesitation, misgivings and misconceptions about what the ratification of the Optional Protocol entails and what can be gained therefrom. Here is a look at common misconceptions with an accompanying clarification for each.
The Optional Protocol is premised on the assumption that the domestic redress system is deficient for delivering justice to women.
A robust domestic judicial and rights-monitoring system should not preclude a State Party from taking advantage of additional helpful oversight mechanisms. The existence of appeal options within domestic court systems shows that judicial perspectives, interpretation and reasoning are variable and evolving. The domestic judicial hierarchy also allows the complainant to move higher if unsatisfied with the judicial outcome, and a reversal of judgment is also common. In much the same way, the Optional Protocol is an additional forum for grave matters that embody issues of wider import.
The OP expands the substantive obligations of the state beyond the scope of CEDAW, imposing additional obligations for the protection of women’s rights.
The substantive scope of obligations of State Parties to the Optional Protocol remains confined to those outlined in CEDAW. The Optional Protocol does not touch upon substantive rights at all – rather it provides additional mechanisms of redress to women through the communications and the inquiry procedures.
If the substantive scope of rights is the same as that prescribed by CEDAW, and a country’s domestic laws provide for individual redress, the Optional Protocol does not offer any additional substantive value.
India’s response to the recommendation that it ratify the Optional Protocol in its first Universal Periodic Review illustrates this perception. India stated in response: ‘[t]here exists…effective legal and constitutional framework to address individual cases of violations within India.’ Indeed, in India the national constitution provides for direct access to the Supreme Court and High Courts to redress violations of women’s equality and remedy discrimination. In addition, several other statutory mechanisms to address human rights violations exist, including the National Human Rights Commissions and the State Human Rights Commissions, as well as dedicated women’s machineries at the national and state level. However, gender-related issues are a particularly specialised area, and the opportunity for 23 experts in the field to weigh in on a case/ issue, even if that issue has already been considered domestically, seems an excellent one. It is hard to see how this would be an ‘unnecessary’ contribution to the law of any State Party.
Furthermore, in addition to offering specialised additional oversight, the inquiry mechanism under the Optional Protocol can also assist states to identify a pattern of discrimination caused by systemic failure that might not become apparent through individual court cases. For example, in the inquiry in relation to Mexico (2005) concerning the systemic pattern of abduction, rape and murder of women in Ciudad Juárez, the Committee on the Elimination of Discrimination against Women (CEDAW Committee) found that the murders investigated were not “instances of sporadic violence against women, but rather … systematic violations of women’s rights, founded in a culture of violence and discrimination that is based on women’s alleged inferiority, a situation that has resulted in impunity.” The Optional Protocol process thus enabled Mexico to identify a pattern of systematic violence that had not been identified by its domestic legal system, and was the catalyst for a number of positive initiatives aimed at eliminating discrimination against women.
It needs to be emphasised that the Optional Protocol is a remedy available where justice remains wanting despite exhaustion of all domestic remedies, and not prematurely or in substitution of domestic remedies.
The Optional Protocol imposes an additional burden on the state.
It is true that monitoring cases filed under the Optional Protocol would add some extra administrative burden to the state. However, whilst the realization of justice is always going to require some administrative efforts on the part of the state, ultimately the Optional Protocol offers a way to reduce that burden by quickly identifying problems with the state’s current approach to gender justice issues, which can then be swiftly rectified.
The Optional Protocol allows CEDAW to assist the State Parties in identifying implementation gaps and working to improve implementation of their laws. The case of Şahide Goecke v. Austria highlighted how the state failure to take domestic violence law seriously can cost the woman her life. Here the Public Prosecutor repeatedly refused to detain a woman’s husband despite evidence of a pattern of domestic abuse and several protection orders. The woman was subsequently shot dead by her husband. The CEDAW Committee found that, despite the presence of gender-sensitive laws in Austria, the right of an alleged perpetrator to fundamental freedoms such as mobility had been given priority over a woman’s right to life and physical and mental integrity. The CEDAW Committee recommended several ways of redressing the balance, including better training for police on domestic violence issues.
Madhu Mehra is Executive Director of Partners for Law in Development (India)
26 September 2012
For further information about Partners for Law in Development, see http://www.pld-india.org/.