El Papel del Entorno

6.7.1 Legal Status of the Optional Protocol

The Optional Protocol is an addendum to CEDAW and requires signature and ratification like any other treaty.³⁰⁹ It was adopted by the General Assembly on 6 October 1999 and entered into force on 22 December 2000.³¹⁰ As of 1 March 2006, 77 states had ratified the Optional Protocol.³¹¹ Reservations are not permitted by the Optional Protocol.³¹²

304 Article 4(d) of DEVAW, supra note 22: “Develop penal, civil, labour and administrative sanctions in domestic legislation to punish and redress the wrongs caused to women who are subjected to violence; women who are subjected to violence should be provided with access to the mechanisms of justice and, as provided for by national legislation, to just and effective remedies for the harm that they have suffered; States should also inform women of their rights in seeking redress through such mechanisms.”

305 Article 4(h) of DEVAW, supra note 22, also encourages States to include in their budgets “adequate resources for their activities related to the elimination of violence against women.” Article 4(k), which deals with the compilation of statistics and the collection of data, makes specific reference to domestic violence and “the causes, nature, seriousness and consequences of violence against women.”

306 Preamble to DEVAW, supra note 22, (the U.N. General Assembly “urges that every effort be made so that it becomes generally known and respected”). There are arguments that U.N. resolutions and declarations are not CIL and therefore cannot be applied to a generality of states. Hiram Chodosh, Neither Treaty Nor Custom: The Emergence of Declarative International Law, 26TEX.INT’L L.J.87,89 (1991).

307 See Louis B. Sohn, ‘Generally Accepted’ International Rules, 61WASH.L.REV.1073 (1986); Michael Reisman, The Cult of Custom in the Late 20^th Century, 17CALIF.W.INT’L L.J.133 (1987); Hiram Chodosh, Neither Treaty Nor Custom: The Emergence of Declarative International Law, 26TEX.INT’L L.J.87 (1991); and, Patrick Kelly, The Twilight of CIL, 40VA.J.INT’L L.449 (2000).

308 Surya P. Subedi, Protection of Women against Domestic Violence: The Response of International Law, 6 E.H.R.L.R.587, 602 (1997).

309 See CSW Overview supra n.

310 See CSW Overview supra n. The General Assembly adopted the Optional Protocol to the Convention on 6 October 1999 in its resolution 54/4 (A/RES/54/4), without reference to a Main Committee. The Optional Protocol was open for signature on 10 December, 1999, Human Rights Day. On 22 December 2000, following receipt of the tenth instrument of ratification, the Optional Protocol entered into force.

311 See CSW Overview supra n.

312 Article 17.

The Optional Protocol enables the CEDAW committee to receive communications by or on behalf of individuals who have grievances falling within the scope of CEDAW.³¹³ It also gives the CEDAW committee investigative powers, significantly augmenting the status of CEDAW.

However, the Optional Protocol has been used only once and only countries which ratify the protocol may be brought into the CEDAW committee’s jurisdiction.³¹⁴

6.7.2 Content of the Optional Protocol

State parties to the Optional Protocol recognize the authority of the CEDAW Committee to receive and consider communications by or on behalf of individuals or groups of individuals.³¹⁵ There are substantive and procedural requirements in order for a communication to be admissible.³¹⁶

However, the Optional Protocol operates only on the basis of exhaustion of local remedies.

Therefore, a complaint will only be considered by the CEDAW Committee if it is clear that “all available domestic remedies have been exhausted unless the application of such remedies is unreasonably prolonged or unlikely to bring effective relief.”³¹⁷ In addition, if a communication is manifestly ill-founded or not sufficiently substantiated, it will be inadmissible.³¹⁸

Provision is made for interim urgent relief.³¹⁹ The CEDAW Committee may request a state party urgently “to take such interim measures as may be necessary to avoid possible irreparable damage to the victim or victims of the alleged violation.”³²⁰ Under ordinary circumstances, however, state parties have six months in which to respond to the allegations contained in the communication.³²¹ Once the CEDAW Committee has evaluated the communication and made its recommendations available to the state and the parties in question, the state party is required to consider the recommendations and respond in writing within six months.³²²

The Optional Protocol also allows for the CEDAW Committee to initiate investigations meru moto, if it receives “reliable information indicating grave or systematic violations by a State Party of rights set forth in the Convention.”³²³ Under such circumstances, the state party is invited “to cooperate in the examination of the information” and to submit observations.³²⁴ The

313 Article 2 of the CEDAW Optional Protocol, supra note 22.

314 The CEDAW Committee can only entertain communications concerning a state which is a party of both CEDAW and the Optional Protocol. Article 3.

315 Articles 1 and 2. Such individuals must be members of state parties and can claim to be victims of a violation of a right protected by CEDAW.

316 Article 4.

317 Article 4(1).

318 Article 4(2)(c).

319 Article 5.

320 Article 5(1).

321 Article 6.

322 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, within six months, a written response, including information on any action taken in the light of the views and recommendations of the Committee.” Article 7(4).

323 Article 8(1).

324 Article 8(1).

CEDAW Committee is empowered to conduct inquiries and, if warranted, visit the territory of the state in question, with the state’s consent.³²⁵ Most of the inquiries are conducted confidentially.³²⁶ Thereafter the procedure mirrors the communications process: the CEDAW Committee examines the findings of the inquiry; submits its findings to the state party; and, the state party has six months in which to respond.³²⁷ While reservations to the Optional Protocol are not permitted, a state party is entitled to “declare that it does not recognize the competence of the Committee” as described above.³²⁸

6.7.3 Analysis of Cases under the Optional Protocol

There have been two applications under the Optional Protocol, which have both been declared inadmissible, and one investigation. While it is probably too early to asses the efficacy of the complaints procedure in the Optional Protocol, it is necessary and useful to analyze the three cases that have been considered by the CEDAW Committee to date.

a. Ms B.-J. v. Germany

The first application, made by a German citizen against Germany, involved a divorced woman who had been unable to secure a final maintenance hearing in Germany and was living in a state of dire financial uncertainty. The CEDAW Committee declared the application inadmissible on the basis that the applicant had not exhausted local remedies and that the CEDAW Committee was precluded ratione temporis from considering certain aspects of the complaint.³²⁹

In a separate opinion, two CEDAW Committee members dissented from the majority opinion, maintaining that the domestic proceedings regarding the allocation of maintenance were unreasonably prolonged.³³⁰ Since the complainant was an older woman who had dedicated three decades of her life to supporting her family and husband, the lack of certainty of her financial income five years after the divorce “is rightly considered to be unacceptable and a serious violation of her human rights in and of itself.”³³¹

There are compelling reasons to support both the majority and the minority positions. The majority applied a narrow, black letter analysis to the facts, which demonstrates a positive restraint on “judicial activism” and compliance with the letter of the Optional Protocol. This will be a comfort to states which are concerned that the CEDAW Committee might become a loose

325 Article 8(2).

326 Articles 6(1) and 8(5).

327 Article 8(3)-(4).

328 Article 10(1).

329 See Excerpt from A/59/38 Annex VIII Decision of the Committee on the Elimination of Discrimination against Women, declaring a communication inadmissible under the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women Communication No.: 1/2003, Ms. B.-J. v. Germany (Decision adopted on 14 July 2004, thirty-first session) Submitted by: Ms. B.-J. Alleged victim: The author State party:

Germany Date of communication: 20 August 2002 (initial submission), paragraphs 8.4, 8.5, and 8.8(a).

330 See Individual opinion of Committee members Krisztina Morvai and Meriem Belmihoub-Zerdani (dissenting). Id page 13.

331 Id.

canon if too much power is vested in it. The minority, on the other hand, focused on the complainant’s enduring status quo, which breaches both the letter and the spirit of CEDAW.

Notwithstanding the inadmissibility of the communication, the complaint against Germany proves that the mechanism is functional and respectable.

b. Ms A.T. v. Hungary

The second communication made to the CEDAW Committee under the Optional Protocol deals directly with domestic violence.³³² The communication, submitted by a Hungarian citizen against Hungary, claimed, inter alia, that Hungary had failed to protect her from extreme and repetitive forms of domestic violence, thereby violating its obligations in terms of CEDAW.

There are four important aspects to this opinion. The first is that Hungary does not actually dispute many of the allegations made against it. Rather, it demonstrates steps it has taken and will take to improve its laws and policy regarding domestic violence. Second, the CEDAW Committee does not hesitate to include domestic violence within its ambit of consideration.

Third, the manner in which the claimant describes the pattern of domestic violence, and the acknowledgement by both the CEDAW Committee and Hungary of the fact that this violates the claimant’s human rights, is weighty evidence of the right in international law to be free from systemic intimate violence. Finally, the claimant asks for urgent interim relief, the success of which remains unclear.

Hungary raises very few exceptions to the communication.³³³ It refers to the fact that domestic violence is a problem in Hungary and that the laws must be adjusted to address this.³³⁴ In addition, it makes reference to the CEDAW Committee’s instructions in this regard on the combined fourth and fifth periodic report of Hungary in 2002.³³⁵ On the one hand, this acknowledgment of responsibility is frustrating, not least of all because the improved mechanisms did not in fact assist the claimant (although this too is acknowledged by the state).³³⁶ On the other hand, as a result of its interaction with the CEDAW Committee, Hungary has made

332 See Views of the Committee on the Elimination of Discrimination against Women under article 7, paragraph 3, of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women

Communication No.: 2/2003, Ms. A.T. v. Hungary (Views adopted on 26 January 2005, thirty-second session) Submitted by: Ms. A.T. Alleged victim: The author State party: Hungary Date of communication: 10 October 2003 (initial submission) The Committee on the Elimination of Discrimination against Women, established under article 17 of the Convention on the Elimination of All Forms of Discrimination against Women, Meeting on 26 January 2005.

333 In fact, it abrogates its right to make procedural exceptions, notwithstanding the possible viability of such exceptions. See paragraph 5.6 of the opinion, indicating that the state party “maintains that “although the author did not make effective use of the domestic remedies available to her and although some domestic proceedings are still pending, the State party does not wish to raise any preliminary objections as to the Advance Unedited Version admissibility of the communication. At the same time, the State party admits that these remedies were not capable of providing immediate protection to the author from illtreatment by her former partner.”

334 Paragraph 5.7.

335 Paragraph 5.7.

336 Paragraph 7.4 (“Based on the experience of the Office in the present case as well as in general, it is conceded that the legal and institutional system in Hungary is not ready yet to ensure the internationally expected, coordinated, comprehensive and effective protection and support for the victims of domestic violence.”

meaningful amendments to its domestic violence laws, most notably the incorporation of protection orders, which, prior to the submission of the communication, did not exist.³³⁷

The claimant’s articulation of her claim and the CEDAW Committee’s acceptance thereof, demonstrates the revised approach in international law to domestic violence, which incorporates the role of the state in allowing the violence to perpetuate. The communication maintains that

“the irrationally lengthy criminal procedures against L.F. [the abuser], the lack of protection orders or restraining orders under current Hungarian law, and the fact that L.F. has not spent any time in custody, constitute violations of her rights under the Convention as well as violations of General Recommendation 19 of the Committee. She maintains that these criminal procedures can hardly be considered effective and/or immediate protection.”³³⁸ This is acknowledged by Hungary and confirmed by the CEDAW Committee. When Hungary conceded that its legal and institutional system was “not ready yet to ensure the internationally expected, coordinated, comprehensive and effective protection and support for the victims of domestic violence,”³³⁹ it accepted that such a standard exists and that it is bound to comply with it. The CEDAW Committee confirms that a state can be held responsible for the conduct of non-state actors and imposes liability on Hungary for the following:

For four years and continuing to the present day, the author has felt threatened by her former common law husband – the father of her two children. The author has been battered by the same man, i.e. her former common law husband. She has been unsuccessful, either through civil or criminal proceedings, to temporarily or permanently bar L.F. from the apartment where she and her children have continued to reside. The author could not have asked for a restraining or protection order since neither option currently exists in the State party. She has been unable to flee to a shelter because none are equipped to take her in together with her children, one of whom is fully disabled. None of these facts have been disputed by the State party and, considered together, they indicate that the rights of the author under articles 5 (a) and 16 of the Convention have been violated.³⁴⁰

The general discussion of the type of violence perpetrated against the claimant echoes the definition of systemic intimate violence described above. The violence is described as

“severe,”³⁴¹ a “persistent situation of insecurity,”³⁴² comprising physical, mental and financial abuse, and threats of harm.³⁴³ Most importantly, the CEDAW Committee details the many ways in which the state systemically and systematically failed to assist the complainant: there were no protection or restraining orders; there were no shelters which would admit the complainant because she has a fully disabled child; the criminal proceedings were too lengthy and the tendency was to delay domestic violence cases; and, Hungary had failed to dislodge the attitudes of Hungarian citizens and politicians that domestic violence is not sufficiently serious to warrant

337 Paragraphs 2.1, 3.2, 5.7, 9.3 and 9.4.

338 Paragraph 3.2. See also paragraphs 9.3 and 9.4 for the CEDAW Committee’s acceptance of the role of state in allowing the violence to be prolonged.

339 Paragraph 7.4.

340 Paragraph 9.4.

341 Paragraph 2.1.

342 Paragraph 9.3.

343 Paragraph 2.1.

immediate and effective state intervention.³⁴⁴ Therefore, the core elements of systemic intimate violence appear in this opinion.

However, to what extent is the process effective for the claimant? The CEDAW Committee concludes its opinion with recommendations that Hungary “take immediate and effective measures to guarantee the physical and mental integrity” of the claimant and her family, and to ensure that the claimant “is given a safe home in which to live with her children, receives appropriate child support and legal assistance and that she receives reparation proportionate to the physical and mental harm undergone and to the gravity of violations of her rights.”³⁴⁵ It is entirely unclear whether the request for urgent interim measures or the final recommendations were implemented by Hungary.

c. Investigation of Ciudad Juárez, Mexico

The first and, as of the date of writing, the only investigation launched by the CEDAW Committee under the Optional Protocol relates to violence against women in Mexico. Towards the end of 2002, the CEDAW Committee received information about the murder, rape and disappearance of hundreds of women in the Mexican city of Ciudad Juárez, in the state of Chihuahua.³⁴⁶ The CEDAW Committee launched an investigation into the situation in terms of article 8 of the Optional Protocol.³⁴⁷

There are a number of factors which make the violence against women in Ciudad Juárez remarkable. I discuss these factors in some detail since the substantive nature of the crimes, many of which are described as domestic violence, and the structural and systemic nature of the state’s response, demonstrate the advances made in international law as regards systemic intimate violence.

The first aspect relates to the increasing number of women who have disappeared over the last decade. Due to the inconsistency between the various reports it is impossible to determine the exact number of missing women, with estimates raging from 350 to a few thousand.³⁴⁸ However, it is not only the large number of the disappearances which is shocking, but also the

344 Paragraphs 9.3 and 9.4.

345 Paragraph 9.6. The CEDAW Committee also makes several general recommendations regarding domestic violence and women in general in Hungary.

346 See paragraph 3, page 4, Report on Mexico produced by the Committee on the Elimination of Discrimination against Women under article 8 of the Optional Protocol to the Convention, and reply from the Government of Mexico, CEDAW/C/2005/OP.8/MEXICO, 27 January 2005 [hereinafter CEDAW Committee Ciudad Juárez Report] (“At its thirty-first session in July 2004, the Committee on the Elimination of Discrimination against Women concluded an inquiry under article 8 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women in regard to Mexico that also included a visit to the State party’s territory.

The Committee included a procedural summary of the inquiry in its annual report (A/59/38, Part II, Chapt. V.B). It decided to make public at a later date its findings and recommendations regarding the abduction, rape and murder of women in the Ciudad Juárez area of Chihuahua, Mexico, as well as the observations received from the Government of Mexico thereon.”).

347 CEDAW Committee Ciudad Juárez Report, paragraph 1, page 1.

348 CEDAW Committee Ciudad Juárez Report, paragraph 36, page 11, paragraph 73, page 16 and paragraph 135, page 24.

consistent pattern with which the disappearances take place and fact that the violence has persisted and escalated for over a decade.

The second factor is the evidence of torture. Where bodies have been found, there is evidence of rape and torture.³⁴⁹ Not only is the violence particularly cruel, but the murders are preceded by periods of captivity and mutilated corpses are “then abandoned on waste ground and eventually discovered by passers-by, not by the police.”³⁵⁰

Third, the victims apparently fit a profile. They are usually young, attractive women, who are very poor, working in the maquiladoras (export processing plant industry) or studying.³⁵¹ In general the victims are vulnerable and, due to their poverty, the victims and their families receive very little respect from the community and the authorities.

The fourth factor is the pattern by which the victims are abducted and murdered. At first, the victims would disappear “while on their way to or from their homes since they had to cross deserted, unlit areas at night or in the early morning.”³⁵² Today, however, the disappearances occur in broad daylight, in the city center.³⁵³

The fifth alarming aspect of the crimes in Ciudad Juárez, is the role of the state. In addition, it appears that “the local authorities, both state and municipal, are assumed to have a years-long

The fifth alarming aspect of the crimes in Ciudad Juárez, is the role of the state. In addition, it appears that “the local authorities, both state and municipal, are assumed to have a years-long