Opinion Statement Requesting Adoption of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women

February 1998
Japan Federation of Bar Associations

• Japanese

SUMMARY

The Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women that permits individuals and so on to make petitions to the CEDAW has been deliberated on by the Working Group of the U.N. Commission on the Status of Women since 1996.

The Japan Federation of Bar Associations (JFBA) has been promoting the adoption of the Optional Protocol since 1995. We now believe it is essential that we make clear our opinions on the various issues identified as problems by said Working Group, and therefore submit our opinions.

Due to poverty and legal illiteracy, large numbers of women worldwide have no means to submit petitions regarding discrimination. Because discrimination against women is part of the social structure, they cannot seek redress for fear of retaliation. Furthermore,the violence against women in great numbers during military conflicts could not be discouraged, made accountable or redressed without international inquiry procedures.

The proposal from the chairperson of the Working Group currently under deliberation would expand the standing for petition to groups and organizations, make a State party's negligent failure to perform its obligation to eliminate discrimination against women a reportable action, and introduce an official inquiry procedure for major violations of human rights. Thus, it is effective and an historic step.

In light of the circumstances in which women all over the world find themselves,it would be extremely important and meaningful if the proposal of the Working Group were to be adopted this year, in which we commemorate the 50th anniversary of the Universal Declaration of Human Rights.

Opinion Statement Requesting Adoption of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women

I. Introduction

The Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women (hereinafter reffered to as the "Women's Convention" or the "Convention") that permits individuals, etc. to make petitions has been deliberated on by the Working Group of the U.N. Commission on the Status of Women (hereinafter reffered to as the "CSW" or the "Commission") since 1996. The Protocol is now in a crucial stage, as the goal for its adoption is 1998, the 50th anniversary of the Universal Declaration of Human Rights.

The Japan Federation of Bar Associations (hereinafter reffered to as the "JFBA") has been promoting the adoption of the Optional Protocol to the Women's Convention since 1995. We now believe it is essential that we make clear our opinions on the various issues identified as problems by said Working Group, and therefore submit our opinions below.

II. Proceedings Leading to Adoption of the Optional Protocol to Convention on the Elimination of All Forms of Discrimination Against Women

Japan ratified the Women's Convention in 1985. However, the only international mechanism for guaranteeing the implementation of the Convention was a reporting system. Moreover, interpretation of the terms of the Convention was based only on general recommendations issued by the Committee on the Elimination of Discrimination Against Women (hereinafter referred to as the "CEDAW" or the "Committee") , and there was no petitioning system under which violations of women's rights could be reported by individuals or other parties.

However, the World Conference on Human Rights, which was held in Vienna in June 1993, affirmed the need for the adoption of new procedures to strengthen the protection of women's human rights, and in the Vienna Declaration and Programme of Action it was pointed out that "The Commission on the Status of Women and the Committee on the Elimination of Discrimination against Women should quickly examine the possibility of introducing the right of petition through the preparation of an optional protocol to the Convention on the Elimination of All Forms of Discrimination against Women."

In 1995, in the 14th Session, the CEDAW adopted various elements for inclusion with an Optional Protocol as Suggestion 7. In the same year, the CSW recommended that the U.N. Economic and Social Council (i) request the Secretary General to invite governments, intergovernmental organizations and NGOs to submit their views regarding an Optional Protocol to the Women's Convention and (ii) determine that the Commission should establish a working group on the elaboration of an optional protocol to the Convention, and these proposals were subsequently adopted in Economic and Social Council Resolution 1995/29.

In the Platform for Action for the Fourth World Conference on Women held in Beijing as well, support was voiced for the CSW to prepare a draft optional protocol that would grant individuals the right of petition. In the 40th Session of the CSW in 1996, a Working Group on the Elaboration of an Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women was established, and deliberations regarding an optional protocol were begun. In the 41st Session in 1997, parallel with the work of the Commission, the drafting of an optional protocol was deliberated by the Working Group. If opinions can be gathered in time, the draft Optional Protocol can be adopted in the 42nd Session in 1998, the 50th anniversary year of the Universal Declaration of Human Rights, aiming at achieving the protocol's entry into force before the year 2000.

III. Attitude of Japanese Government

Initially, in its comments submitted to the Secretary General of the U.N., the Japanese government viewed an optional protocol as something requiring close scrutiny, and had a negative attitude toward its adoption, but it has subsequently changed its position, agreeing to the adoption of the Optional Protocol and willingly offering its opinions on each of the provisions contained therein.

IV. Actions Taken to Date by the JFBA

In its report prepared for the Fourth World Conference on Women, the JFBA pointed out the need to establish a system for communication by individuals and strengthen international guarantees of the implementation of the Convention via the adoption of an optional protocol. In November of 1995, the President of the JFBA sent a letter to the Secretary General incorporating the contents of said report, and in June of 1997, the President of the JFBA issued a "Statement to Support the Adoption of Optional Protocol to Convention on Elimination of All Forms of Discrimination Against Women".

V. Significance of Adoption of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women

It is clear, given the history of other human rights treaties, that an optional protocol establishing a system permitting communications by individuals, etc., is extremely important for implementation of the Women's Convention. In particular, the proposal from the chairperson of the Working Group currently under deliberation that would expand the scope of persons permitted to petition, make a State party's negligent failure to perform its obligation to eliminate discrimination against women a reportable action, and introduce an official inquiry procedure for major violations of human rights, is an historic step.

Due to poverty and legal illiteracy, large numbers of women worldwide have no means to submit petitions regarding discrimination. Moreover, because discrimination against women is part of the social structure, they cannot seek redress for fear of retaliation. It is consequently essential that the scope of persons allowed to petition be expanded. Moreover, the Convention requires State parties to eliminate discrimination by private individuals and in private conduct, and therefore it is also essential, if the petitioning system is to be effective, to make negligent failure to eliminate discrimination a ground for petition.

Furthermore, in the Platform for Action of the Fourth World Conference on Women, the issue of violence against women during military conflicts was addressed. Given the current reality that women suffer injuries in great numbers due to such terrible violence, an official inquiry procedure is essential.

In light of the circumstances in which women all over the world find themselves, it would be extremely important and meaningful if the proposal of the Working Group, which would actually work to eliminate real-world discrimination against women and carry the promises of the Convention into actual practice, were to be adopted this year, in which we commemorate the 50th anniversary of the Universal Declaration of Human Rights.

VI. Opinions on Various Issues Pertaining to the Optional Protocol

Although the Optional Protocol to the Women's Convention may soon be adopted as described above, there are various issues pertaining to the individual provisions thereof, regarding which we submit our opinions below.

1. Parties Allowed to Petition - Standing

(1) Need for acceptance of petitions from groups or organizations and from third parties

It is particularly important that the scope of persons allowed to petition - standing - under the Women's Convention be expanded, for the reasons outlined below.

It was pointed out in the Platform for Action of the Fourth World Conference on Women that "Of the more than 1 billion people living in abject poverty, women are an overwhelming majority." Due to their poverty, numerous women worldwide have no means to petition. It was also observed that "more than two thirds of the world's 96 million illiterate adults are women", and the proportion of those who are legally illiterate is even greater. It is further presumed that there are many cases in which women cannot petition for fear of retaliation or other disadvantageous treatment.

It was noted in the Declaration on the Elimination of Violence against Women, both in the preamble and in Article 5, Section (e) of the Declaration, that "some groups of women are especially vulnerable to violence", and the necessity of allowing groups to petition applies here as well.

The right of petition under the Women's Convention must be extended to third parties for the following reasons.

As noted in the preamble to the Declaration on the Elimination of Violence against Women, which recognized that "violence against women is one of the crucial social mechanisms by which women are forced into a subordinate position compared with men", discrimination and violence against women is part of the social structure. Therefore, it is extremely difficult for women who exist in that social structure to complain about their situation, making it essential that third parties be allowed to do so.

For example, there are countries that impose penal sanctions on women that violate clothing regulations, such as by not wearing a chador, wearing pants or wearing a shirt with buttons. In these countries, it would be very difficult for a woman receiving such a punishment to submit or maintain a grievance without suffering from further retaliation or disadvantageous treatment. In order to abolish penal provisions that constitute discrimination against women, it would therefore be useful if a lawyers' group, for example, could argue that such punitive regulations violate Article 2, Section (g) of the Women's Convention.

Moreover, female genital mutilation is practiced as a traditional custom in approximately 20 African countries, in parts of Asia and the Middle East, and in some immigrant communities in developed countries. Every year approximately two million girls and adolescent women reportedly undergo female genital mutilation, and approximately 110 million women worldwide are said to have suffered severe injury due to this practice. It is defined as violence against women in Article 2, Section (a) of the Declaration on the Elimination of Violence against Women, and is also addressed in the CEDAW's General Recommendation No. 14, but given that parents perform this in accordance with custom, it is essential that third parties such as physicians' groups be allowed to initiate proceedings with respect to ratifying States that are failing to live up to their obligations under the Convention to take steps to eliminate this custom.

(2) Review of the draft Optional Protocol

Article 2, Section (a) of the draft Optional Protocol states that the right to petition extends to "an individual, group or organization claiming to have suffered from a violation of any of the rights in the Convention or claiming to be directly affected by the failure of a State party to comply with its obligations under the Convention."

The right of petition is thus not limited to individuals, but also encompasses "groups or organizations". Such a provision is present in a number of other human rights treaties as well.

Article 14, Section (1) of the Convention on the Elimination of All Forms of Racial Discrimination grants the right of petition to "individuals or groups of individuals". Article 25, Section (1) of the European Convention for Protection of Human Rights and Fundamental Freedoms extends the right of petition to "any person, non-governmental organization or group of individuals", while Article 44 of the American Convention on Human Rights provides such right to "any person or group of persons, or any non-governmental entity legally recognized in one or more member states of the Organization". In actual practice, among petitions submitted under these treaties, those submitted from "groups or organizations" have generally been accepted.

Because Article 3 of the draft Optional Protocol (this Article is final) provides that communications must be in writing and may not be anonymous, we agree that the right of petition should not be limited to individuals, and should be expanded to include "groups or organizations".

Article 2, Section (b) further states that a communication may be submitted by "an individual, group or organization claiming that a State party has violated any of the rights set forth in the Convention or has failed to comply with its obligations under the Convention, if in the opinion of the Committee this person, group or organization has sufficient interest in the matter."

In the case of a violation of the Convention by a State party (involving either a violation of rights or a failure to perform obligations), a communication from a third party having a "sufficient interest" is accepted.
Other human rights instruments permitting third party petitions include the following:

Article 22, Section 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment (hereinafter reffered to as the "Convention against Torture"), in recognizing the competence of "communications from or on behalf of individuals...who claim to be victims of a violation...of the provisions of the Convention", permits communications to be submitted on behalf of injured parties.

Article 44 of the American Convention on Human Rights provides that individuals or other specified parties may "lodge petitions with the Commission containing denunciations or complaints of violation of this Convention by a State Party", and a member of the Inter-American Commission on Human Rights has noted that the procedure allowing a party that is not an injured party to file a petition has played a key role in actual cases involving the filing of a petition.

Although Articles 1 and 2 of the First Optional Protocol to the International Covenant on Civil and Political Rights (hereinafter referred to as the "ICCPR") state only that "individuals" may petition for violation of their rights, when dealing with actual communications, the Human Rights Committee has allowed petitions filed by others on behalf of injured parties when the persons whose rights have been violated are unable to petition (e.g., close relatives of persons that have been imprisoned and tortured, have disappeared, etc.). In addition, Rule 90,(b) of the 1994 Rules of Procedure of the Human Rights Committee provides that "Normally, the communication should be submitted by the individual himself or by his representative; a communication submitted on behalf of an alleged victim may, however, be accepted when it appears that he is unable to submit the communication himself".

In addition, Economic and Social Council Resolution 1503 entitled "Procedure for Dealing With Communications Relating to Violations of Human Rights and Fundamental Freedoms" provides for investigation by an ad hoc committee appointed by the Commission on Human Rights in the event of "communications...which appear to reveal a consistent pattern of gross and reliably attested violations of human rights and fundamental freedoms". Rule 2(a) of the provisional rules of procedure for the Commission on Human Rights (Sub-Commission Resolution adopted in 1971) permits submission of communications by third parties by allowing a communication to be made by an individual or group that may be presumed to be a victim of a human rights violation or by an individual or group that has direct and reliable knowledge of said human rights violation.

As seen from the above discussion, the expansion in Article 2 of the draft of the scope of persons having the right to petition, as well as the expansion to third parties in place of the injured party, has ample precedent, ensuring its effectiveness. On the other hand, since the CEDAW will approve such petitions only after deliberation regarding whether or not "there is sufficient interest in the matter", there is no danger of abuse. We therefore approve of Article 2 of the draft Optional Protocol.

2. Subject Matter of Petition

(1) Need for inclusion in right to petition of violations of obligations in addition to infringement of rights

If communications alleging the failure of a State party to fulfill its obligations under the Convention are not permitted, there will be no mechanism adequate to provide international guarantees of the implementation of the Convention, and there will be only limited means to provide redress to individual victims of discrimination. It is essential that communications be permitted regarding the failure of a state to honor its obligations to eliminate discrimination against women as set forth in the Women's Convention.

For example, Articles 7, 9, 15 and 16 of the Convention provide that equal rights shall be "granted" or "ensured", such that a violation of this obligation would constitute a direct violation of one's rights, while there are also many provisions establishing an obligation to take all appropriate measures to eliminate discrimination.

First, regarding the obligations of State parties as provided in Article 2 of the Women's Convention, Section (a) requires states not only to embody the principle of the equality of men and women in their national constitutions and other appropriate legislation, but also to "ensure, through law and other appropriate means, the practical realization of this principle". Section (b) provides that states shall "adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women", and Section (c) requires that ratifying nations "ensure...the effective protection of women against any act of discrimination".

State parties to the Convention are further instructed to not only "refrain from engaging in any act or practice of discrimination against women" (Section (d)) and "repeal all national penal provisions which constitute discrimination against women" (Section (g)), but are also required in Section (e) to "take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise", and are obligated under Section (f) to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women.

Accordingly, Section 2 of the Women's Convention establishes a positive obligation on the part of State parties to eliminate discrimination in even private conduct.

Moreover, Article 5, Section (a) of the Convention requires State parties to modify the social and cultural patterns of conduct of men and women in order to eliminate prejudices and customary and other practices which are based on stereotyped roles for men and women.

The obligation to eliminate discrimination set forth in Articles 2 through 4 of the Convention encompasses the areas of politics and public acts (Articles 7 through 9), economic and social activities (Articles 10 through 14), equality under the law, and marriage and domestic relations (Articles 15 and 16).

Furthermore, while the Convention on the Elimination of All Forms of Racial Discrimination applies to "any...field of public life", there is no such limitation in Article 1 of the present Convention, and the obligation of State parties to eliminate discrimination applies to private conduct as well.

For example, Article 14, Section 2 of the Women's Convention requires State parties to ensure the right of rural women to participate in development, and Article 5, Section (a) of said Convention requires State parties to modify the social and cultural patterns of conduct of men and women in order to eliminate prejudices and customary and other practices.

While these provisions raise the issue of how far a state must go in order to fulfill its obligations, as noted in General Comment 3 from the Committee on Economic, Social and Cultural Rights, "steps towards [the goal of full realization of rights] must be taken within a reasonably short time....", a State party's failure to take action would constitute a failure to observe its obligations.

However, the mere existence of these provisions in the Convention does not mean that the failure of a ratifying State to fulfill its obligations should be removed as a basis for submitting a communication; since customs can also be the cause of violence against women, it is essential that failure of a State party to fulfill its obligations be included as a ground for petition.

For example, violence against women (such as spousal battery) comprises a violation of rights by a private individual, but states must be nonetheless obligated to take appropriate measures to prevent it.

For these reasons, it is essential for the effective implementation of the Women's Convention that the grounds for petition include not simply violations of rights, but also the failure of State parties to comply with its obligations under the Convention.

(2) Review of draft Optional Protocol

Sections (a) and (b) of the draft Optional Protocol provide that a communication may be submitted not only for a violation of rights set forth in the Convention, but also for the failure of a State party to comply with its obligations under the Convention.

There are other examples in which grounds for petition include not only a violation of rights but also a failure to observe one's obligations under a treaty. Section 24 of the Constitution of the International Labor Organization provides that any representation by an employers' association or workers' association that a Member has "failed to secure in any respect the effective observance within its jurisdiction of any Convention to which it is a party" may be accepted.

Moreover, making failure to fulfill a State party's obligations grounds for petition will help to clarify the meaning and proper interpretation of the Convention by creating a body of case law regarding discrimination against women as set forth in the Women's Convention, as well as interpretations of each provision through individual determinations of each case brought thereunder.

We therefore approve of the draft Optional Protocol.

3. Admissibility

The basic requirements for admissibility are set forth in the Convention, with the remaining issues apparently left for resolution via Rules of Procedure. In any case, the rules governing admissibility should surely be the same as those used in systems for handling petitions in connection with other human rights treaties.

The basic requirements for admissibility are set forth in the Convention, with the remaining issues apparently left for resolution via Rules of Procedure. In any case, the rules governing admissibility should surely be the same as those used in systems for handling petitions in connection with other human rights treaties.

While Article 4 of the draft Optional Protocol contains possible provisions governing admissibility, there is still no specific proposal in the draft regarding such provisions.

However, the Working Group has agreed that the criteria for admissibility shall include the following: (1) the petition does not contravene the terms of the Convention, (2) the petition does not constitute an abuse of one's rights, and (3) all available domestic means of resolution have been exhausted. There were opinions to the effect that item (3) should include situations where domestic means of resolution are not effective or where domestic remedies are unreasonably delayed, as well as opinions that item (3) was not necessary. In addition, there was agreement that (4) a petition would not be accepted where the matter was already under consideration in another forum or pursuant to another procedure.

The inclusion of exhaustion of domestic remedies as a requirement for admissibility can be seen in other international human rights instruments such as the First Optional Protocol to the ICCPR (Article 2, Article 5, Section 2(b)), the European Convention on Human Rights (Article 26), and the American Convention on Human Rights (Article 46, Section 1(a).

Article 5, Section 2(b) of the First Optional Protocol to the ICCPR provides that "This shall not be the rule where the application of the remedies is unreasonably prolonged."

Article 46, Section 2 of the American Convention on Human Rights lists exclusions to the application of Article 1, Section (a), and includes cases where "the domestic legislation of the state concerned does not afford due process of law for the protection of the [applicable] right" (Section 2(a)), where the petitioner "has been denied access to the remedies under domestic law or has been prevented from exhausting them" (Section 2(b)) or where "there has been unwarranted delay" (Section 2(c)).

Based on a review of these other treaties, it would seem appropriate to adopt admissibility criteria that are not unduly restrictive.

4. Interim Measures

In order to provide an effective remedy, it is sometimes deemed necessary for the Committee to take interim measures during the pendency of its investigation regarding a communication, so that the circumstances giving rise to the alleged violation of the Convention do not worsen. Such interim measures are taken in connection with petitions submitted under other human rights treaties. Where, for example, a woman is being sexually assaulted or subjected to sexual mistreatment while imprisoned, interim measures prior to the issuance of a substantive determination by the Committee, such as transfer to another facility, switching with a female police officer or jailor, or provision of appropriate medical treatment or counseling, are necessary under the Women's Convention, and we approve of a provision in the draft Optional Protocol authorizing such interim measures.

Article 5 of the draft Optional Protocol provides that State parties be recommended to take appropriate interim measures in order to avoid the continuation or worsening of harm or injury before a determination is reached on the merits.

These interim measures have actually been taken by the Human Rights Committee, and the following views have been conveyed to the relevant State parties: "while the matter is pending, do not send the petitioner to country A"; "make the petitioner available for medical examination by a qualified medical institution and submit a copy of the report from the medical institution to the Committee"; and "while the admissibility of the matter is being investigated, stay the planned execution". Rule 86 of the Rules of Procedure of the Human Rights Committee provides for the taking of interim measures as well.

Article 63, Section 2 of the American Convention on Human Rights establishes a mechanism for the taking of interim measures as follows: "In cases of extreme gravity and urgency, and when necessary to avoid irreparable damage to persons, the Court shall adopt such provisional measures as it deems pertinent in matters it has under consideration. With respect to a case not yet submitted to the Court, it may act at the request of the Commission."

Furthermore, the Inter-American Commission on Human Rights has in the past adopted interim measures pursuant to Article 29 of the Regulations of the Inter-American Commission on Human Rights, which provides that in urgent cases, in order to avoid irreparable damage to persons, the Commission may request that provisional measures be taken.

Accordingly, provisions such as those set forth in Article 5 of the draft Optional Protocol to permit State parties to take interim measures before a decision on the merits is reached are necessary in order to avoid the continuation or exacerbation of harm or injury.

5. Confidentiality of Petitioner and Victim, and Settlement Between Parties (Article 6)

(1) Need for confidentiality of petitioner and/or victim

As described in detail in connection with the provisions regarding persons having competence to submit a communication, because it is necessary for the communication system to have a systematic mechanism to prevent retaliation against the victim, there must be a provision, such as the one under consideration, protecting the confidentiality of the petitioner and/or injured party.

In this regard, the second sentence of Article 6, Section 1 provides that the Committee may maintain the confidentiality of the petitioner and/or injured party during consideration of interim measures to be taken pursuant to Article 5 in exceptional cases involving a threat to the life or physical integrity of the petitioner or victim.

With regard to the extent of this confidentiality and the method by which it is preserved, there is also an alternative proposal, that, along the lines of Article 14, Section 6(a) of the Convention on the Elimination of All Forms of Racial Discrimination, wherein it is provided that "the identity of the individual or groups of individuals concerned shall not be revealed without his or their express consent", mandates the express consent of the complainant due to the risk of retaliation against the petitioner or victim. However, one objection to said alternative proposal is that unless the petitioner and/or victim are identified, the pertinent State party cannot prepare an explanatory report or provide relief. In addition, some are of the opinion that the exceptional circumstances in which confidentiality is to be maintained should be defined in the Committee's rules.

The chairperson's proposal permits the confidentiality of the petitioner and/or injured party to be preserved only in exceptional cases and for a limited period of time. However, in these cases, confidentiality would be necessary.

(2) Settlement between parties involved

Because Article 6, Section 3 of the draft Optional Protocol provides that the process is to operate "on the basis of respect of the rights and obligations set forth in the Convention", we agree to the utilization of the Committee in order to facilitate settlements between the parties involved in a dispute.

Article 6, Section 3 of the draft Optional Protocol sets forth provisions pertaining to the utilization of the Committee in order to facilitate a settlement between the parties involved. Provisions for the friendly settlement of disputes exist in Article 28, Section b of the European Human Rights Convention and in Article 48, Section f of the American Convention on Human Rights, and it is undeniable that cases exist in which a settlement between the parties is the most practical and effective way to resolve a matter.

On the other hand, the Committee's involvement in the procedure should be ensured so that the problem itself will not become lost in the course of settlement between the parties.

6. Information to be Considered by the Committee (Article 7)

In order for the communication procedure to be effective and easy to use, there should be no particular restrictions on the type of information that may be considered by the Committee or on the method of its submission.

Article 7, Section 1 of the draft Optional Protocol provides that the information subject to consideration shall consist of information submitted by either the State party concerned or the author of the information or individual involved. The Committee may also consider information obtained from other sources so long as this information is transmitted to the author and the State party for comment. One opinion holds that this other information should be limited to that obtained from the U.N., while another opinion contends that this other information should be defined in the Committee rules. However, because the information is to be transmitted to the petitioner and the State party for comment, the fairness of the process will be ensured even in the absence of any limits on the type of information that may be presented, and an effective investigation based on adequate information may be performed. Therefore, there would seem to be no need for any particular restrictions on the method by which the Committee receives the information.

There is also a proposal regarding the acceptance of oral statements, wherein neither the submission nor the information submitted is required to be in writing. There is also no restriction on non-written information in the Convention Against Torture which provides in Article 22, Section 4 that the Committee against Torture established according to the Convention may consider communications presented to in the light of all information made available to it".}

Accordingly, we approve of the draft Optional Protocol provision on this issue.

7. Remedies and Follow-up (Article 8, Article 9)

As a means to ensure that the determinations and recommendations of the Committee following its consideration of the various communications have practical effect, we support the adoption of provisions enabling it to offer remedies and perform follow-up.

Article 8 of the draft Optional Protocol concerns measures that State parties concerned must take to remedy the wrongs suffered, and Article 9 concerns monitoring of compliance with requests, etc.

The draft Optional Protocol does not seek merely to obtain acknowledgement that a violation of the Convention has occurred. In Article 8, Section 1, the Committee is authorized to request that the State party concerned take particular measures to remedy a violation. Under Section 2 of that Article, the State party is required to take all steps necessary to remedy a violation of its obligations under the Convention, and to ensure that appropriate remedies are provided, including adequate compensation if necessary, while Section 3 requires that the State party submit to the Committee a written explanation or statement clarifying the remedy implemented by the State party.

Article 9, Section 1 further provides that the Committee may invite the State party concerned to discuss with the Committee the measures it has taken, while Section 2 provides that the Committee may invite the State party concerned to include in its report submitted pursuant to Article 18 of the Convention details regarding any measures taken in response to the Committee's views, suggestions and recommendations.

The Human Rights Committee has indicated in its opinions the most effective remedy due to the injured party, going so far as to specify the particular form of the needed remedy, and has requested that measures be taken to fulfill an obligation to pay damages to the injured party and to prevent the recurrence of any similar violation. In 1982, the Human Rights Committee began asking State parties to appear before the Committee and explain the measures they had taken. In 1990, the Committee began the practice of publicizing in its yearly reports those countries that had responded to the Committee's reports and those that had not, and requested that countries include in their reports submitted pursuant to Article 40 of the ICCPR a report on the measures it took in response to the Committee's recommendations. In addition, on July 24, 1990, it was determined that a special rapporteur would be appointed to assist in performing follow-up.

Article 50 of the European Convention on Human Rights provides for just satisfaction of the injured party, while a decision of the Inter-American Court of Human Rights established a legal duty to investigate, identify the parties responsible, impose appropriate punishment and ensure adequate compensation to the injured party, and determined that it would supervise the implementation of compensatory damages and close the case only after the subject government complied with the judgment. (Velasquez Rodriguez Case, Compensatory Damages (Art. 63(1) American Convention on Human Rights), Judgment of July 21, 1989 Inter-Am.Ct.H.R. (Ser. C) No. 7 (1990)).

Based on these examples, provisions regarding remedies and a follow-up mechanism along the lines of those set forth in the draft Optional Protocol should be adopted.

8. Inquiry Procedure (Article 10, Article 11)

In the Platform for Action of the Fourth World Conference on Women, the problems of violence against women and systematic rape during the armed conflicts were addressed. For these types of issues, an inquiry procedure is called for. In addition, in such problems as human slavery and forced prostitution, there are many different routes through various countries formed with the involvement of organized gangs, etc. In these cases as well, an individual petition is insufficient, and an inquiry procedure is more effective. Moreover, serious and systematic violence against women also occurs in the context of racial and ethnic conflicts, and human slavery is run by private individuals. The Committee should be charged with inquiring the failure of states to discharge their obligations in these areas as well.

Article 10 of the draft Optional Protocol sets forth an inquiry procedure for when the Committee receives reliable information indicating a state's serious and systematic violation of rights or failure to give effect to its obligations. If the Committee receives reliable information indicating serious and 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 the State party to cooperate in the examination and to submit observations with regard to the information concerned (Section 1). Taking into account any other usable information and any observations submitted by the State party, the Committee shall, with the consent of the State party, designate one or more of its members to conduct an inquiry and report urgently to the Committee. Where consent of the State party is obtained, the inquiry may include a visit by Committee members to its territory (Section 2). After examining the findings of the inquiry, the Committee is to transmit them to the State party together with its comments and recommendations (Section 3). Within [three months][six months] of receiving said findings, comments and recommendations, the State party shall submit its observations to the Committee (Section 4). This inquiry procedure shall be conducted in a confidential fashion, and the [consent and] cooperation of the State party is to be sought at all stages of the proceedings (Section 5).

Article 11 provides that the Committee may at an appropriate time invite a State party concerned to discuss the measures that the State party has taken in response to the inquiry (Section 1), and that the Committee may have the State party include in its report under Article 18 of the Convention details of any measures taken in response to the inquiry (Section 2).

Article 20 of the Convention against Torture provides for the initiation of formal proceedings even in the absence of a communication, which may be initiated if the Committee against Torture receives reliable information which apprears to it to contain well-founded indication that torture is being systematically practiced. In 1993, the Committee against Torture carried out an inquiry regarding torture in Turkey. The provisions of Articles 10 of the draft Optional Protocol are, with the exception of Section 4, essentially identical to the provisions of Section 1 through the first sentence of Section 5 of Article 20 of the Convention against Torture. Section 4 of Article 10 and Section 2 of Article 11 pertain to the follow-up procedures set forth in Articles 8 and 9.

rticle 26, Section 4 of the ILO Constitution establishes a procedure whereby the Governing Body may initiate the inquiry procedure set forth in said Article on its own motion if a Member is failing to secure effective observance of any Convention ratified by the Member state concerned. Where serious and systematic violations of Convention provisions are taking place, this sort of inquiry procedure is essential, even in the absence of a petition from an individual. For example, the Committee could commence such a procedure in response to a report from an NGO such as Amnesty International. When a petition has been submitted by an individual, the focus is on providing a remedy for that particular case, but where the violation is serious and systematic, it is necessary to address the structural cause of the treaty violation, and a change that comprises legal and structural modifications to the system may be effected by means of this investigation procedure.

It is particularly important for fact-finding purposes to be able to visit the location in question, and a provision to this effect is contained in Article 20, Section 3 of the Convention against Torture.

In light of the various procedures and provisions contained in other Conventions described above, we believe that the inquiry procedure sought to be introduced by the draft Optional Protocol is necessary, and we support its introduction.