Page created
27 Nov. 98
SUBMISSION TO THE OFFICE FOR THE STATUS OF WOMEN ON THE DEVELOPMENT OF AN OPTIONAL PROTOCOL TO THE Convention on the Elimination of All Forms of Discrimination Against Women, 1999
INTRODUCTION
*PREAMBLE
*ARTICLE 1: COMPETENCE
*ARTICLE 2: STANDING
*ARTICLE
4 (1): ADMISSIBILITY CRITERIA – DOMESTIC REMEDIES
*ARTICLE
4(2): ADMISSIBILITY CRITERIA – SPECIFIC GROUNDS
*ARTICLE 5(1):
INTERIM MEASURES
*ARTICLE
6(1): CONFIDENTIALITY OF COMMUNICATIONS
*ARTICLE
6(3): SETTLEMENT OF COMPLAINTS
*ARTICLE
7(1): CONSIDERATION OF COMMUNICATIONS –OBJECTIVITY AND IMPARTIALITY
*ARTICLE
7(1): CONSIDERATION OF COMMUNICATIONS – INFORMATION
*ARTICLE
7(2 BIS): CONSIDERATION CONTINUED– PARTICIPATION OF STATE PARTIES
*ARTICLE
7(4): CONSIDERATION OF COMMUNICATIONS – RESPONSE OF STATE PARTIES
*ARTICLE
10(1): INQUIRY PROCEDURE – TRIGGER MECHANISM
*ARTICLE
10(2) – (5): INQUIRY PROCEDURE
*ARTICLE
11 BIS: INQUIRY PROCEDURE - OPT-OUT CLAUSE
*ARTICLE 12: STATE UNDERTAKINGS
*ARTICLE
14: PUBLICITY OF THE OPTIONAL PROTOCOL
*ARTICLE 16:
RESOURCING OF COMMITTEE
*ARTICLE 18:
ENTRY INTO FORCE
*ARTICLE 20: RESERVATIONS
Additional links: for a more general briefing on the Optional Protocol [NWJC web]
We, the organisations endorsing this submission, urge the Australian Government to continue its support for an effective and accessible Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). Issues of discrimination against women continue to prevent many women's full enjoyment of their human rights. Australian women see it as vital that our Government joins with others to provide a mechanism by which women across the world, whose governments fail to provide adequate or effective national machinery, can help ensure that international human rights obligations are fulfilled.
At the forty-second session of the United Nations Commission on the Status of Women (CSW), significant progress was made in the development of the Optional Protocol. However, the most contentious aspects of the draft text remained in dispute, in part due to the success of a few states’ obstructionist tactics. In early 1999 at the forty-third session of CSW, there will be the opportunity to resolve the "too hard" issues which remain bracketed in the draft text.
We urge the Australian Government to take an active role in the ongoing negotiations; through bilateral and regional opportunities, by liaising with like-minded states (the "Friends of the OP") in the preparation for CSW 43, and by taking a strong and constructive stance during the three week drafting session. We value the opportunity provided by the Australian Government to contribute the Government's position and we look forward to the ongoing and active involvement at all levels of NGOs in progressing the Protocol. We hope this substantive submission on the current draft text * will be of assistance throughout this process.
* We have not commented on text that was agreed at CSW 42; therefore those articles that were adopted in whole are omitted from the submission. In relation to the text still under negotiation, our comments are structured i nthe following way:
1. Existing text
2. WRANA's recommendation
3. Rationale
4. Relevant precedents
Existing Text: [The states
Parties to this Protocol,
Noting that the Charter of the United
Nations reaffirms faith in fundamental human rights, in the dignity
and worth of the human person and in the equal rights of women and
men,
Noting that the Universal Declaration
of Human Rights proclaims that all human beings are born free and
equal in dignity and rights and that everyone is entitled to all the
rights and freedoms set forth therein, without distinction of any
kind, including distinction based on sex,
Recalling that the international covenants
on human rights and other international human rights instruments prohibit
discrimination on the basis of sex,
Recalling also the Convention on the
Elimination of All Forms of Discrimination Against Women, in which
States Parties condemn discrimination against women in all its forms
and agree to pursue by all appropriate means and without delay a policy
of eliminating discrimination against women,
Reaffirming their determination to
ensure the full and equal enjoyment by women of all human rights and
fundamental freedoms and to take effective action to prevent violations
of those rights and freedoms,
[Recalling also that the Vienna Declaration
and Programme of Action reaffirms that all human rights are universal,
indivisible, interdependent and interrelated,]
[Recalling that the Vienna Declaration
and Programme of Action calls for the introduction of a right to petition
through the preparation of an optional protocol to the Convention
on the Elimination of All Forms of Discrimination against Women,]
[Recalling also that the Beijing Platform
for Action urges that such a protocol enter into force as soon as
possible,]
Have agreed as follows:]
RECOMMENDATION: Retain all text, removing all brackets.
RATIONALE: The Preamble should include references to the principles agreed by States at the Vienna and Beijing conferences. This reinforces the importance of these statements as a source of internationally agreed principles seeks to ensure there is no temptation for states to circumvent commitments previously made.
PRECEDENTS: Preambles to other international human rights treaties with complaints mechanisms make reference to the Universal Declaration of Human Rights and other United Nations declarations (Convention on the Elimination of All Forms of Racial Discrimination ("CERD"), Convention Against Torture ("CAT")). In addition to such General Assembly resolutions, the new class of international meetings of United Nations member states, including the Vienna and Beijing conferences, also produced written outcomes anc commitments and the status of these should be affirmed.
Existing Text: [A State Party to the present Protocol recognises the competence of the Committee to receive and consider communications [submitted in accordance with article 2].]
RECOMMENDATION:
1. Retain the paragraph.
2. Delete [submitted in accordance
with article 2].
RATIONALE: Although the competence of the Committee to receive and consider communications is arguably self evident in the text of the Protocol, this article reinforces the expertise and competence of the Committee in considering complaints and discourages criticism of the Committee’s capacity to perform its functions. The final bracketed phrase is unnecessary and undermines the preceding phrase.
PRECEDENTS: The First Optional Protocol
to the International Covenant on Civil and Political Rights ("ICCPR")
provides that a State Party recognises the competence of the Committee
to receive and consider communications from individuals subject to
its jurisdiction. CERD and CAT both provide that States Parties recognise
the competence of the Committee to receive communications.
Existing Text: [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][provisions] set forth in the Convention [through an at or failure to act] by that State Party.]
Existing Text (alternative): [Communications may be submitted by an individual or groups of individuals, or on their behalf, by [organisations/their designated representatives], subject to the jurisdiction of the State Party, claiming to be victims of violations of any of the rights set forth in the Convention.]
RECOMMENDATION:
As this article is of utmost importance, we propose the following text options in descending order of preference:
1. "Communications may be submitted by or on behalf of an individual or a group of individuals or an organisation subject to the jurisdiction of the State Party, claiming to be victims of violations of any of the rights set forth in the Convention."
2. "Communications may be submitted by an individual or group of individuals or, on their behalf, by an organisation subject to the jurisdiction of the State Party, claiming to be victims of violations of any of the rights set forth in the Convention."
3. "Communications may be submitted by or on behalf of individuals or groups under the jurisdiction of a State Party claiming to be victims of a violation of any of the provisions set forth in the Convention."
RATIONALE: It is essential that communications can be submitted by individuals, groups of individuals, their representatives and organisations. This is to overcome the risk of reprisal against individuals or groups of individuals who bring complaints themselves, to alleviate the consequences of the legal illiteracy of many women and to reflect the increasing recognition of the role of non government organisations in international human rights monitoring. Preferred text 1 or 2 is more appropriate because both unambiguously allow communications by NGOs.
PRECEDENTS: The First Optional Protocol
to the ICCPR, CAT, CERD and the Convention on the Rights of Migrant
Workers ("MWC") provide for communications by "individuals";
CERD, which like the Convention is concerned with the elimination of discrimination,
extends to communications by "groups of individuals"; the provisions
of CAT and MWC allow for communications "on behalf of individuals";
and the Rules of Procedure for the ICCPR allow for communications
by an represindividual'sentative and communications submitted on behalf
of an alleged victim when it appears that the individual is unable
to submit the communication personally.
Notably, in Australian domestic law,
an organisation has standing to prevent the violation of a public
right if it has a special interest in the subject matter greater than
that of other members of the public which is not a mere intellectual
or emotional concern (ACF v Commonwealth; Onus v Alcoa of Australia
Ltd).
ARTICLE 4 (1): ADMISSIBILITY CRITERIA – DOMESTIC
REMEDIES
Existing Text: 4.1. The Committee shall not consider a communication unless it has ascertained that all available domestic remedies have been exhausted unless [it is demonstrated that] the application of such remedies is unreasonably prolonged or unlikely to bring effective relief [as determined in accordance with generally recognized rules of international law].
RECOMMENDATION:
1. Delete [it is demonstrated that].
2. Delete [as determined in accordance
with generally recognized rules of international law].
RATIONALE: This language is not in the
first Optional Protocol to the ICCPR, and for the sake of consistency,
it should be deleted in the Optional Protocol to CEDAW. These phrases
are unnecessary and potentially limiting. The second phrase does not
exist in other human rights instruments and infers the committee may
act contrary to international legal principles. The rest of the paragraph
already reflects customary international law in that the requirement
of the exhaustion of domestic remedies recognises the need for effective
remedies. The Committee must be empowered to interpret this legal
rule in a manner which gives recourse to women and gives meaning to
the obligations in CEDAW.
ARTICLE 4(2): ADMISSIBILITY CRITERIA – SPECIFIC
GROUNDS
Existing Text: 4. 2. The Committee
shall declare a communication inadmissible where [, in the view of
the Committee]: …
[4.2 (iii) It is manifestly ill-founded
or not sufficiently substantiated;]
[4.2 (iv) It is [vexatious or] otherwise
an abuse of the right to submit a communication;]
RECOMMENDATION:
1. Retain ", in the view of the Committee"
2. Delete [(iii) It is manifestly
ill-founded or not sufficiently substantiated;]
3. Delete [(iv) It is [vexatious]
or otherwise]
RATIONALE: In relation to the first phrase, while this language may be unnecessary, it makes clear that the decision as to whether a communication is admissible lies with the Committee and is not for any state to prefer a particular interpretation. The remaining bracketed requirements are too demanding and are not found in any other international instruments. The introduction of criteria that a communication is not admissible if it is "Manifestly ill-founded" or "vexatious" is unacceptable and unnecessary. Similarly, any attempt to reintroduce further criteria, such as where a communication is "politically motivated", should be strongly opposed. It is important to note that no other international communications procedure instruments contain such phrases. The questions of whether a complaint is "sufficiently substantiated" or "an abuse of the right to submit a communication" are more straightforward legal requirements for admissibility, and could be dealt with in the context of the Committee’s rules of procedure. It should be noted that an under-resourced, over-burdened Committee is unlikely to admit such communications in any event.
FURTHER COMMENT: While article 4.2(v) was adopted by the 1998 Working Group, it is important to note that where facts occur prior to entry into force of the Protocol, but the alleged violation continues to have effect after that date (as opposed to the facts themselves continuing after that date), the communication should be admissible. This is the practice of the Human Rights Committee according to its general comment 24. While it is WRANA’s understanding that the additional proposed criterion for admissibility that the communication must be "in compliance with the principles of objectivity and impartiality" was rejected at the last drafting, any attempt to reintroduce such wording should be very strongly resisted.
ARTICLE 5(1): INTERIM MEASURES
Existing Text: 1. At any time
after the receipt of a communication and before a determination on
the merits has been reached, the Committee may transmit to the State
Party concerned for its [urgent] consideration a request that the
State Party take interim measures as may be necessary to avoid possible
irreparable damage to the victim or victims of the alleged violation.
RECOMMENDATION: Retain the entire paragraph, including "urgent"
RATIONALE: Given that interim measures
will most commonly be used in instances where there is an imminent
change of circumstances, such as an immediate threat of harm to the
complainant, it is preferable to specify that the State Party urgently
consider the Committee’s request for interim measures. Otherwise,
the State Party is able to defer the interim measures request until
after the threatened events have taken place, rendering meaningless
the Committee’s power to request measures in appropriate cases.
ARTICLE 6(1): CONFIDENTIALITY OF COMMUNICATIONS
Existing Text: Unless the Committee
considers a communication inadmissible without reference to the State
Party concerned, and provided that the individual or individuals consent
to the disclosure of their identity or identities to that State Party,
the Committee shall bring any communication submitted to it under
this Protocol [confidentially] to the attention of the State Party
concerned.
RECOMMENDATION: Retain the entire paragraph, including "confidentially".
RATIONALE: The wording is currently ambiguous.
The Protocol should require the individual's consent to the disclosure
of her identity to the State Party. The Protocol should also ensure
that the complaint is treated confidentially by the Committee, State
Party and individual, unless the individual herself chooses to publicize
the complaint; the issue of publicity can be dealt with in the Rules
of Procedure. In any event, rewording the text to match the language
of CERD (article 6(a)) is recommended as follows:
Unless the Committee considers a communication inadmissible without reference to the State Party concerned, the committee shall confidentially bring any communication referred to it to the attention of the State Party alleged to be violating any provision of this Convention, but the identity of the individual or groups of individuals concerned shall not be revealed without her or their express consent.
PRECEDENTS: CERD provides that the Committee
shall confidentially bring any communication to the attention of the
State Party but the identity of the individual or groups of individuals
concerned shall not be revealed without their express consent.
ARTICLE 6(3): SETTLEMENT OF COMPLAINTS
Existing Text: [3. During its examination of a communication, the Committee shall place itself at the disposal of the parties concerned with a view to facilitating settlement of the matter on the basis of respect of the rights and obligations set forth in the Convention.] [In the event of agreement between the parties, the Committee shall adopt findings taking note of the settlement of the matter.]
RECOMMENDATION: Retain the entire paragraph, removing all brackets.
RATIONALE: It is important to ensure that the Committee can assist settlement of the complaint "on the basis of respect of the rights and obligations set forth in the Convention"; this will ensure that the greater bargaining power of the State Party is not used to exploit the weaker position of a complainant. Recording the settlement will also be a useful means of monitoring the human rights performance of a particular State Party. Extending a settlement procedure to the individual complaints mechanism is a positive advance in international human rights law.
PRECEDENTS: The interstate complaints procedures in the ICCPR and CAT provide for friendly solution of the matter on the basis of respect for the obligations provided in the Convention (article 21, CAT; Rule 77A, Rules of Procedure, ICCPR).
ARTICLE 7(1): CONSIDERATION OF COMMUNICATIONS
–OBJECTIVITY AND IMPARTIALITY
Existing Text: [While exercising its function under this Protocol, the Committee should be in compliance with the principles of objectivity and impartiality.]
RECOMMENDATION: Delete.
RATIONALE: The article implies that the Committee would not ordinarily comply with the principles of objectivity and impartiality, thereby undermining its competence. There is no justification for inclusion of this language.
PRECEDENTS: This language appears in no
other complaints instrument.
ARTICLE 7(1): CONSIDERATION OF COMMUNICATIONS
– INFORMATION
Existing Text:. 1. The Committee shall consider communications received under this Protocol in the light of all [[written] [or recorded]] information made available to it by [or on behalf of] the [author] [individual] and by the State Party concerned. [The Committee may also take into account information obtained from other [United Nations] sources provided that this information is transmitted to the author and the State Party for comment.]
RECOMMENDATION:
1. Delete [United Nations]
2. Retain the remainder of the paragraph,
removing all brackets.
RATIONALE: Information from the parties, non government organisations and other United Nations sources should not be restricted in either form or content. Rapid technological change means that a reference to written information is outdated. The availability of expertise from sources other than the parties, the Committee and the United Nations should be acknowledged and utilised.
PRECEDENTS: CAT and CERD refer to all information
made available to the Committee by the parties, without specifying
that it must be in written form. CAT and MWC provide for consideration
of all information made available by or on behalf of the parties.
Extending the material available for the Committee’s consideration
to information from other sources is an important advance in international
human rights decision making; the right of the parties to know the
case against them consistent with the principles of natural justice
is protected by the requirement that the information be provided to
the parties for comment.
ARTICLE 7(2 BIS): CONSIDERATION CONTINUED–
PARTICIPATION OF STATE PARTIES
Existing Text: [2 bis When a communication is being considered, the State Party concerned shall be entitled to take part in the proceedings of the Committee and to make submissions orally and/or in writing.]
RECOMMENDATION: Delete.
RATIONALE: It is a denial of the complainant's natural justice to allow the State Party to take part in the proceedings of the Committee in the absence of the complainant.
PRECEDENTS: No such provision exists in
other individual complaints
procedures.
ARTICLE 7(4): CONSIDERATION OF COMMUNICATIONS
– RESPONSE OF STATE PARTIES
Existing Text: . The State Party shall give [due] consideration to the views of the Committee, together with its recommendations, if any, and shall submit to the Committee, [as far as possible] within six months, a written response, including on any action taken in the light of the views and recommendations of the Committee.
RECOMMENDATION:
1. Delete [as far as possible].
2. Retain "due" and the remainder
of the paragraph.
RATIONALE: The inclusion of the word "due" imports a requirement that the State give serious and not superficial consideration to the Committee’s recommendations. Deletion of the words "as far as possible" removes an otherwise available excuse for delay by States. The introduction of an obligation on State Parties to respond to the Committee’s views is an important innovation in the Protocol.
PRECEDENT: Under the First Optional Protocol
to the ICCPR, a Special Rapporteur is designated for following up
the measures taken by States Parties to give effect to the Committee’s
views. In order to give the follow-up provisions any clout, it is
appropriate to require expressly that States respond to the Committee’s
recommendations within 6 months.
ARTICLE 10(1): INQUIRY PROCEDURE – TRIGGER
MECHANISM
Existing Text: [10.1. If the Committee receives reliable information indicating a serious [and] [or] systematic violation by a State Party to the Protocol of rights set forth in the Convention [or of a failure to give effect to obligations set forth in the Convention], the Committee shall invite that State Party to cooperate in the examination of the information and to this end to submit observations with regard to the information concerned.
RECOMMENDATION:
1. Delete [and] in the first
sentence.
2. Retain the entire remainder of
the paragraph, removing the brackets.
RATIONALE: It is essential that the CEDAW
Committee has the power to undertake an inquiry if it ‘receives reliable
information indicating a serious or systematic violation by a State
Party to the Protocol of rights set forth in the Convention or of
a failure to give effect to obligations set forth in the Convention.
To require a violation to be both serious and systematic raises the
threshold unnecessarily and may exclude situations in which an international
inquiry is warranted.
ARTICLE 10(2) – (5): INQUIRY PROCEDURE
Existing Text: [10.2. Taking
into account any observations that may have been submitted by the
State Party concerned as well as any other reliable information available
to it, the Committee may designate one or more of its members to conduct
an inquiry [with the consent of the State Party] and to report urgently
to the Committee. [[Where warranted and] [in agreement with] [with
the consent of] the State Party, the inquiry may include a visit to
its territory.]
Existing Text: 10.4. The State
Party shall, within [three] [six] months of receiving the findings,
comments and recommendations transmitted by the Committee, submit
its observations to the Committee.
Existing Text: 10.5. Such an
inquiry shall be conducted confidentially and the [consent and] cooperation
of the State Party shall be sought at all stages of the proceedings.]
RECOMMENDATION:
1. Retain clause 10.2, but the final
sentence should read: "Where warranted, the inquiry may include a
visit to its territory."
2. In relation to clause 10.4, delete
[six] and remove remaining brackets.
3. In relation to clause 10.5, delete
[consent and] and remove remaining brackets.
RATIONALE: The current text contains too many qualifications. While the requirement of state consent – or preferably "cooperation" – is more desirable than an ‘opt-in’ clause for the entire inquiry procedure, these factors must be balanced against one another. To require both consent and cooperation is unnecessary
PRECEDENT: While similar language exists
in Article 20.2 of CAT, that instrument refers only to the cooperation
of the State Party. Under CAT, however, this clause refers to the
designation of Committee members for the purpose of conducting an
inquiry, whereas in the case of draft article 10.2, the clause refers
to a visit to the territory of the State party.
ARTICLE 11 BIS: INQUIRY PROCEDURE - OPT-OUT
CLAUSE
Existing Text: [11.1. Each State
Party may, at the time of signature or ratification of this Protocol
or accession thereto, declare that it [does not] recognize[s] the
competence of the Committee provided for in articles 10 and 11.
Existing Text: 11.2. Any State
Party having made a declaration in accordance with paragraph 1 of
this article may, at any time, withdraw this declaration by notification
to the Secretary-General.]
RECOMMENDATION: Delete both draft paragraphs.
RATIONALE: We do not support an opt-in/opt-out clause. It seriously weakens the inquiry procedure and effectiveness of the CEDAW Committee in enforcing the obligations contained in the Convention. If such a clause is a political necessity then we prefer an opt-out clause as it places a greater onus on the ratifying state to exclude themselves from the provisions of the Inquiries procedure by making a public statement.
PRECEDENT: The only international legal
precedent for such a clause within a single instrument is contained
in article 28 of the CAT, which phrases the issue in terms of permissible
reservations. It is important to note that this is effectively a de
facto reservation to a section of the instrument. This draft article
therefore must be considered in the light of draft article 20 of the
Optional Protocol.
ARTICLE
12: STATE UNDERTAKINGS
Existing Text: [State Parties
to this Protocol undertake:
[(a) to respect the [right][procedure]
provided by this Protocol to submit communications or information
to the Committee and to cooperate with the committee at all stages
of its proceedings under this Protocol;]
[(b) to take all appropriate steps
to protect [all persons][those] under its jurisdiction submitting
communications or information][or those the subject of such information/communications,]
to the Committee from interference or reprisal by any party.]
RECOMMENDATION:
1. Delete [right]
2. Delete [those]
3. Delete [or those the subject
of such information/communications]
4. Retain the remainder of the paragraph,
removing all brackets.
RATIONALE: Protection of both complainants
and information providers from interference and intimidation is fundamental
to the proper operation of the Protocol. The inclusion of a specific
requirement that States Parties respect the procedure and cooperate
with the Committee is a valuable initiative.
ARTICLE 14: PUBLICITY OF THE OPTIONAL PROTOCOL
Existing Text: Each State Party to this Protocol undertakes to make [widely] known and to give [due] publicity to the Convention and its Optional Protocol and to facilitate access to information about the views and recommendations of the Committee, in particular, in matters involving that State Party.]
RECOMMENDATION: Retain the entire paragraph, removing all brackets.
RATIONALE: Requiring States Parties to
promote the Protocol encourages increased awareness of human rights
and contributes to a greater culture of rights compliance. For these
reasons the language should remain as strong as possible.
ARTICLE 16: RESOURCING OF COMMITTEE
Existing Text: [The Committee
shall meet for such a period as is necessary [within its agenda] to
carry out its functions under this Protocol.]
Existing Text: (alternative)
[The Committee shall hold meetings to exercise its functions under
this Protocol, in addition to its meetings held under article 20 of
the Convention. The duration of such meetings shall be determined,
and reviewed, if necessary, by a meeting of the States Parties to
the Protocol, subject to the approval of the General Assembly.]
New Resources Paragraph:
[The Secretary General of the United Nations shall provide the necessary
staff and facilities for the effective performance of the functions
of the Committee under the present Protocol.]
RECOMMENDATION:
1. Delete existing text.
2. Retain alternative existing text,
removing all brackets.
3. Retain new resources paragraph,
removing all brackets.
RATIONALE: Given the history of unacceptable
under-resourcing of the Committee, especially when compared with the
"mainstream" human rights treaty bodies, it is necessary to spell out
the need to provide additional resources. In order to operate effectively,
the Committee must have adequate meeting time and resources to consider
properly complaints and initiate inquiries. In an era of increasingly
scarce resources at the United Nations, specifically identifying the
Protocol as a priority for resources is essential.
ARTICLE 18: ENTRY INTO FORCE
Existing Text:
This Protocol shall enter into force three months after the date of
the deposit with the Secretary General of the United Nations of the
[fifth] [tenth] [twentieth] instrument of ratification or accession.
RECOMMENDATION: Delete [tenth][twentieth]
RATIONALE: Because the Protocol introduces a long awaited complaints procedure which includes a number of innovative provisions, it is important that it is available as soon as possible for complainants. Initial reluctance by some States to ratify the Protocol should not delay access to a remedy for those complainants whose States have ratified the Protocol.
PRECEDENTS: The procedure in CAT requires
5 ratifications. CERD and the ICCPR require 10 ratifications.
ARTICLE
20: RESERVATIONS.
Existing Text:
[No reservations
to this Protocol shall be permitted.]
Existing Text: [Reservations
to this Protocol shall be permitted, unless such a reservation is
incompatible with the object and purpose of the present Protocol and
the Convention, in accordance with the rules of international law.]
RECOMMENDATION:
1. Retain the first alternative, removing
all brackets.
2. Delete the second alternative.
RATIONALE: No reservations to the Optional Protocol should be permitted. The second alternative is useless, as there is no effective supervision mechanism. While this draft article restates the existing international legal position with regard to reservations to treaties, we do not support reservations to the Optional Protocol. It is an optional communications procedure, which, according to well-established principles of international law, would only ever apply to those aspects of the Convention which a state party has unreservedly ratified. The Convention on the Elimination of All Forms of Discrimination has the highest level of reservations of any human rights instrument and is already substantially weakened as a result.
PRECEDENT: A specific prohibition
on reservations now exists in Article 120 of the recently adopted
Statute for a Permanent International Criminal Court.
This submission has been prepared by the Optional Protocol Working Group of Women's Rights Action Network Australia (WRANA).
For further information on WRANA and its
activities, please contact:
Caroline Lambert
ph: (03) 9830 4249
email: caro@bigpond.com
This page is hosted
on the National Women's Justice Coalition web site.
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