Data Analysis

CEDAW also has an optional protocol. Its Articles, so far as they concern us, are explained below.

3.3.1 Why was there a Need for an Optional Protocol?

The Optional Protocol to CEDAW was based on commitments made in the Vienna Declaration in 1993 and the 1995 Fourth Conference on Women. It was created by a resolution of the General Assembly. The protocol begins by asserting the competence of the Committee on the Elimination of Discrimination against Women to receive and consider communications in accordance with Article 2.

Article 2 provides that communications may be submitted by or on behalf of individuals or groups of individuals who are claiming to be victims of a violation of Convention rights. Article 3 specifies that communications must be in writing and cannot be anonymous.

Communication can only be received by the Committee if the communication concerns a state party that is a signatory to the Protocol.

In other words, the Committee would not be able to consider a communication if it came from an individual or a group from a state party that was a signatory to the Convention, but not the Protocol.

Article 4 states that the Committee will only consider a communication if it can make sure that all available domestic remedies have been exhausted. There is an exception to this rule. A communication could be considered if all domestic remedies had not been exhausted, but, the application of such remedies was subject to an unreasonable delay; or indeed, it was unlikely that the available remedy would be effective.

There are other grounds of inadmissibility:

The Committee shall declare a communication inadmissible where:

(a) The same matter has already been examined by the Committee or has been or is being examined under another procedure of international investigation or settlement;

(b) It is incompatible with the provisions of the Convention;

(c) It is manifestly ill-founded or not sufficiently substantiated; (d) It is an abuse of the right to submit a communication;

(e) The facts that are the subject of the communication occurred prior to the entry into force of the present Protocol for the State Party concerned unless those facts continued after that date.

Article 5 empowers the Committee to request a state party to take interim measures whilst a communication is being considered. These measures must prevent 'irreparable damage to the victim or victims of the alleged violation'. This does not apply, however, when the Committee is merely considering the admissibility of a communication.

Interim measures thus only become available once a communication has been declared admissible.

Article 6 makes it a condition of the Committee bringing a communication to the attention of the state party concerned (confidentially) that the complainants consent to the disclosure of their own identity. Once the state party has received the communication, it has six months to submit to the Committee ‘written explanations or statements clarifying the matter and the remedy, if any, that may have been provided by that State party’.

Article 7 stresses the confidential nature of the proceedings before the Committee. Article 7 para. 4 provides that once the state party has received the views of the Committee, it has six months to provide a written response, that specifies any action taken in the light of the views and recommendations of the Committee.

Article 8 allows the Committee to conduct an inquiry and to report urgently to the Committee where there is evidence of ‘grave or systematic violations by a State party’. Such an inquiry may involve a

to the Committee, who in turn, transmits these findings to the State.

Once the state party has received this report, it has six months to submit its observations to the Committee. Paragraph (5) provides that these inquiries are confidential, and consensual.

Article 9 specifies that a report to the Committee may contain details of the measures taken to respond to the issues raised by the inquiry.

Article 10 provides that it is possible to derogate Articles 8 and 9.

Article 11 is very necessary. It places a duty on state parties to take 'all appropriate steps' to make sure that those communicating with the Committee are not ill-treated.

3.3.2 What is the Role of the Optical Protocol?

The Optional Protocol includes two procedures: the communication procedure and the inquiry procedure. The communication procedure allows individuals and groups to complain to the Committee about violations of rights. The inquiry procedure enables inquiries to be made into grave or systematic abuses of human rights by experts.

SELF ASSESSMENT EXERCISE 5

Read Steiner and Alston, pp.188-189. This is an extract from an article by Byrnes that attempts to assess the work of the Committee.

1. What are Byrnes’ main concerns?

Steiner and Alston have summarised concluding observations from the Committee's third and fourth periodic reports on China on pp.191-195.

There are also summarised General Recommendations on pp. 195-202.

2. Do you think that they showed that the Committee engaged in constructive dialogue?

A Note on Gender Mainstreaming

As we saw above, the Commission's mandate was to promote the principle that men and women have equal rights. Its role was to prepare recommendations and reports for the Council on promoting women's rights and to make recommendations on urgent problems.

The Commission's role was expanded in 1987, and again in 1995 following the Fourth World Conference on Women in Beijing. The Commission was tasked with building on the Beijing Declaration and

the concerns expressed in the Platform for Action, including the mainstreaming of gender perspectives in the work of all UN agencies.

We need to consider the Platform for Action, and the idea of gender mainstreaming in greater detail.

The Platform for Action builds on the report of the 1985 Nairobi conference on Women. It calls for a concerted international effort to advance the human rights of women, and a social justice agenda, which in turn re-affirms the central principle of the Vienna Declaration and Programme of Action that women’s and girls’ rights are central to human rights. The Platform for Action also recognises that men and women should work together to achieve these ends.

The Platform for Action is linked to the practice of gender mainstreaming. How can one understand this latter term?

Mainstreaming a gender perspective is the process of assessing the implications for women and men of any planned action, including legislation, policies or programmes, in all areas and at all levels. It is a strategy for making women's as well as men's concerns and experiences an integral dimension of the design, implementation, monitoring and evaluation of policies and programmes in all political, economic and societal spheres so that women and men benefit equally and inequality is not perpetuated. The ultimate goat is to achieve gender equality.

The General Assembly was encouraged to direct the bodies and committees of the UN system to make a gender perspective part of all their work. Particular attention was drawn to macroeconomic issues, development activities, poverty eradication, human rights, humanitarian assistance and legal and political matters.

Once we turn from the law of the treaties to the issue of the implementation of women's rights, we can appreciate the complex issues of culture and tradition that this raises. We will now look at two initial country reports in an attempt to determine what is at stake in the implementation of women's rights.

So, in summary, gender mainstreaming aims to make gender issues far more central to the work of the UN (and within the UN itself).

3.3.3 Case Study: Nigeria

If we turn to Nigeria's country report, we can see that the issues raised by women's rights in Africa's most populous nation are somewhat

we are considering here the combined fourth and fifth periodic reports (document CEDAW/C/NGN405), not the interim report, as we did above. In other words, Nigeria has been a signatory to CEDAW for longer than Singapore.

Nigeria has ratified both CEDAW (in 1985) and the Optional Protocol (1999).

There was general praise for the advances that were being made in the protection and enhancement of women's rights. Experts drew attention to state laws that have prohibited female genital mutilation, early marriage and trafficking in women and children. Legal aid provision was also praised; in particular as it allowed one woman, Safiya Hussein, who had been sentenced to death by stoning for adultery, to appeal to the Sokoto State Sharia of Appeal, which overturned the sentence of the lower court. A major policy initiative was also coming to the fore. The National Policy on Women was intended to improve the profile of women in public life.

However, there were profound misgivings about the operation of a tripartite legal system and a governance process that impeded the implementation of policy. In Nigeria there are three legal systems in operation: Islamic Sharia law, customary law and common law.

The reason for this is in part historical, but problems of coherence among these three jurisdictions, make for difficulties in setting a common standard. The Nigerian Constitution does provide for freedom from discrimination, but, many states in the Nigerian federation remain committed to traditional gender roles that are from the perspective of CEDAW. Moreover, there are inconsistencies within legal traditions.

For instance, whilst some provisions of Sharia law practised in the northern states of Nigeria are not compatible with CEDAW, but other provisions are. An example would be section 239 of the Zamfara State Sharia Penal Code Law 2000. This punishes the trafficking in women.

As far as customary law is concerned, examples of practices in the Southern states, include widowhood rites and inheritance rights which remain discriminatory. These problems are exacerbated by social attitudes:

• In most communities…. a divorced or separated woman is despised regardless of the circumstances. The woman is stigmatised and becomes socially vulnerable, especially in the eastern part of the country. In northern Nigeria, separated or divorced women can marry after three months and usually do. While the marriage age in southern Nigeria is between the ages of 18 and 21, in the north it is between the ages of 12 and 15. In the Northern part of the country,

girls as young as nine, depending on the onset of puberty, are allowed to marry.

There were also problems with property rights. The report details that around 90 per cent of registered land and properties remain in men's names. Property rights are also complicated by the tripartite legal system, and by general ignorance of the existence of rights and social exclusion.

Some states in the south of the country do not even allow women to own land and other properties:

• Under customary law, however, wives remain as slaves to their husbands and in-laws. Widows in southern and eastern parts of Nigeria have no protection, and their rights are seriously abused.

• Under the Sharia legal system, widows are accorded more rights. If their husbands die, they are allowed an in-house compulsory mourning period of four months and 10 days to determine whether they are pregnant. After the compulsory mourning period, if found not pregnant, women are free to remarry. Widows under the Sharia law inherit their husband's properties together with their children.

SELF ASSESSMENT EXERCISE 6

What general impressions of the enforcement of women’s rights are suggested by the report from Nigeria?

3.4 Declaration on the Elimination of Violence against