OP-CEDAW Article 8
Two inquiries under the OP-CEDAW have been concluded since this chapter was written. Both address questions of importance to future use of the Article 11 procedure: the interpretation of the threshold requirement;
and the characterisation of ESC rights violations as ‘grave or systematic’ in nature.
In March 2015, the CEDAW issued the report of its inquiry on missing and murdered Aboriginal women and girls in Canada.195 It found that Canada had committed grave violations of the rights of Aboriginal women and girls, citing the provisions of the Convention that it has associated closely with the prohibition of gender-based violence (Articles 1, 2(c)(d) and (e), 3 and 5(a), read in conjunction with Articles 14(1) and 15(1)).196 One month later, the CEDAW issued a summary report of its inquiry on women’s sexual and reproductive health rights in the Philippines.197 It concluded that the State Party had committed grave and systematic violations of the Convention, citing Article 12, read alone; Article 12, read in conjunction with Articles 2(c), (d) and (f), 5 and 10(h); and Article 16(1)(e), read alone.198
195 Report of the inquiry concerning Canada of the Committee on the Elimination of Discrimination against Women under Article 8 of the Optional Protocol to the Convention, U.N. Doc.
CEDAW/C/OP.8/CAN/1, 6 March 2015 (CEDAW Canada inquiry report). The inquiry included an on-site visit in 2014.
196 Ibid paras. 214-215.
197 Summary of the inquiry concerning the Philippines under Article 8 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women, U.N. Doc. CEDAW/C/OP.8/PHL/1, 22 April 2015 (CEDAW Philippines inquiry report). This inquiry included an on-site visit in 2012.
198 Ibid para. 46.
Threshold Requirement
In its inquiry on Canada, the CEDAW chose to focus solely on the gravity of the violations. It stated that, in light of its conclusion that grave violations had occurred, there was no need to consider whether the violations had also been systematic.199 The CEDAW explained that findings regarding the gravity of violations ‘must take into account, notably, the scale, prevalence, nature and impact of the violations found’.200 Several aspects of the violations mentioned by the CEDAW as indicators of their gravity can be more appropriately characterised as markers of their systematic nature, including: ‘the protracted failure of the State Party to take effective measures to protect Aboriginal women’;
‘weaknesses in the justice and enforcement system’ resulting in impunity;
and the ‘lack of any efforts to bring about any significant compensation and reparation’.201 The CEDAW’s rationale for not reaching a conclusion on the systematic nature of the violations is not readily apparent, since its factual findings included the existence of a prevalent pattern of violence against Aboriginal women over time, linked to a history of discriminatory laws and policies and coupled with a failure by the State Party to ensure access to justice and end impunity for the violence.202
In its inquiry on the Philippines, the CEDAW outlined its interpretation of both threshold elements and summarised the factual basis for its conclusion that the breaches had been both grave and systematic in nature. Regarding the meaning of ‘grave’, the CEDAW reiterated the formula stated in the inquiry on Canada (gravity is determined with reference to the scale, prevalence, nature and impact of the violations) and highlighted features of the violations that fitted within this formula.203 It particularly emphasised the consequences of the violations as indicators of their gravity.204
199 CEDAW Canada inquiry report (n. 195 above), para. 214.
200 Ibid para. 213.
201 Ibid para. 214.
202 Ibid paras. 95, 97, 110, 128-130, 147 and 172. The CEDAW rejected the State Party’s argument that it lacked competence ratione temporis to examine events that occurred prior to the entry into force for Canada of the OP-CEDAW. It invoked the continuing violations exception and refused to draw any ‘arbitrary historical borderline’ between events pre- and post- entry into force. Ibid paras. 88-92.
203 See CEDAW Philippines inquiry report (n. 197 above), para. 47 (‘[T]he number of persons affected by the policies … is significantly high, as thousands of women of child-bearing age continue to have inadequate access to sexual and reproductive health services’; ‘higher rates of unwanted pregnancies and unsafe abortions, increased maternal morbidity and mortality and increased exposure to sexually transmitted diseases and HIV’; and the ‘potentially life-threatening consequences of resorting to unsafe abortion as a method of contraception’).
204 The CEDAW stated that: ‘each of the violations established reach the required threshold of gravity given the significant consequences… for women’s health, personal development and economic security, particularly for economically disadvantaged women. The denial of access to affordable sexual and reproductive health services … had severe consequences not only for the lives and health of many women, but also impacted on
Regarding the meaning of ‘systematic’, the CEDAW explained:
The systematic denial of equal rights for women can take place either deliberately, namely with the State Party’s intent of committing those acts or as a result of discriminatory laws or policies, with or without such purpose.
The systematic nature of violations can also be assessed in light of the presence of a significant and persistent pattern of acts which do not result from a random occurrence … [T]he systematic character of each of the violations found is evident from the prevalent pattern of violations which occurred as a result of policies disproportionately impacting women and discriminating against them.205
The CEDAW referred to the persistence of the violations over time as a factor indicating that they were ‘not isolated cases’. However, the time factor would seem to relate more closely to the question of impunity for violations than to their scale or prevalence. The prolonged continuation of violations may signal the existence of impunity resulting from a failure by the State to prevent and respond to violations as required by the treaty. The CEDAW noted the Philippines’ toleration of the violations over time as a factor indicating the systematic nature of the abuses, but did not refer explicitly to impunity.206
Although the CEDAW’s approach to the concept of a systematic violation in the inquiries on Mexico and the Philippines appears at odds with its approach in the inquiry on Canada, the general parameters of its interpretation of the Article 8 threshold are now apparent. All three inquiries offer useful illustrations of the process of interpreting the threshold requirement in a particular factual context. Two additional aspects of the inquiry on the Philippines offer guidance for analysis of the term ‘systematic’ in OP-ICESCR Article 11. First, the CEDAW did not consider wide geographic distribution to be a necessary element of the concept of a systematic violation. As in the inquiry on Mexico, the violations examined in its investigation occurred in a large metropolitan area. Second, like the CAT, the CEDAW extended the concept of
‘systematic’ violations to situations in which local policy or practice conflicts with central State policy that is in line with the State Party’s treaty obligations.207
204 their enjoyment of several rights set forth in the Convention in areas such as employment and education’. Ibid (emphasis added.)
205 Ibid para. 48.
206 See ibid para. 48 (noting that ‘the State Party condoned a situation, which lasted for more than 12 years’); para. 26 (noting that the State Party ‘at times either supported or condoned the policies of the City of Manila’); para. 28 (referring to ‘the tacit acceptance by the central Government of the policies issued by the Manila local government’.) As a separate matter, the CEDAW found that the Philippines had failed to establish sufficient safeguards and oversight mechanisms to ensure that decentralisation and devolution of powers to the local level in the health sector would not lead to violations of women’s sexual and reproductive health and rights. Ibid paras.
23-25.
207 Ibid para. 35; text at n. 137, above (the CAT’s definition of the ‘systematic’ practice of torture.)
Analysis of Economic, Social and Cultural Rights Violations
In its inquiry on Canada, the CEDAW cited data confirming ‘that discrimination on socio-economic indicators persists against Aboriginal women’.208 It treated violations of ESC rights as central causal factors for violence against Aboriginal women. The CEDAW grounded its analysis of the murders and disappearances in the historical context of the cultural dislocations suffered by Aboriginal peoples, government policies of forced assimilation and institutionalised discrimination, and the social and economic marginalisation of Aboriginal women and their communities.209 Among the factors considered by the CEDAW in concluding that Canada had failed to exercise due diligence to eliminate gender-based violence was the State Party’s ‘extensive and long-standing knowledge of patterns of vulnerability and risk for Aboriginal women [and knowledge of] the existence of structural patterns of inequality faced by Aboriginal women, notably in education, housing, health and employment’.210
The inquiry on the Philippines focused squarely on violations of women’s sexual and reproductive health and rights. The violations resulted from a de facto ban on modern methods of contraception in all public health facilities run by the Manila local government and from the failure of municipal authorities to allocate resources to ensure the provision of adequate reproductive health services. In analysing the facts, the CEDAW drew on its well-established jurisprudence regarding the scope and content of women’s reproductive health and rights.
The CEDAW found that the Philippines had violated women’s rights to health under Article 12 by failing to ‘ensure access to the full range of sexual and reproductive health services and commodities, including information and counselling on modern methods of family planning … [and failing] to remove barriers to ensure women’s effective access to sexual and reproductive health services’.211 In addition, it concluded that the Philippines had violated the following provisions of the Convention Article 10(h), by failing to provide adequate information about modern contraceptive methods and their use;212 Article 16(1)(e), by failing to provide women with the education, services and necessary means to
208 CEDAW Canada inquiry report (n. 195 above), para. 111.
209 Ibid paras. 112-119, 128-130, 201 and 203. The CEDAW noted that the ‘social and economic marginalisation of Aboriginal women is reflected in the high incidence of poverty as evidenced in inadequate housing and homelessness, lack of education and employment opportunities, transience and migration, drug and substance abuse, as well as over-representation of Aboriginal children in the child welfare system’. Ibid para. 112.
210 Ibid para. 208.
211 CEDAW Philippines inquiry report (n. 197 above), para. 36. These failures were also considered by CEDAW to amount to discrimination and breaches of the State Party’s duties under Articles 2(d) and 2(f). Ibid para. 31.
212 Ibid paras 38-39.
decide freely and responsibly on the number and spacing of their children;213 Article 5, read together with Articles 12 and 16, by permitting the implementation of a policy that reinforced gender stereotypes that had the effect of impairing women’s rights under Article 12;214 and Article 2(c), by failing to establish a system to ensure judicial protection and provide effective judicial remedies for the violations of women’s reproductive health and rights experienced by women in the City of Manila.215
Although this report was issued in summary form and does not include detailed findings of fact or extended analysis of the State Party’s obligations, it demonstrates that the application of the ‘grave or systematic’
threshold to violations of ESC rights can be relatively straightforward where the scope and content of the rights and obligations at issue are well-defined and a sufficiently complete fact base has been established. The CEDAW found stand-alone violations of Articles 12 and 16(1)(e), as well as breaches of other provisions based on interrelationships among the rights concerned. Its approach emphasised interrelationships among rights with regard to both the causes and the consequences of violations and highlighted the disproportionate impact of the violations on economically disadvantaged women. The CEDAW’s findings and recommendations also confirm that ‘grave or systematic violations’ can encompass all levels of State obligation regarding ESC rights.
CAT Article 20
In October 2014, the CAT issued the report of its inquiry on torture in Lebanon.216 It found that torture had been systematically practised in Lebanon.217 The CAT’s analysis of the factors taken into account in determining whether the Article 20 threshold had been reached was consistent with prior inquiries and it reiterated the definition of the systematic practice of torture first set out in its inquiry on Turkey.218
213 Ibid para. 41.
214 Ibid paras. 42-43.
215 Ibid para. 45.
216 Report of the Committee Against Torture, Summary account of the results of the proceedings concerning the inquiry on Lebanon, 69 U.N. GAOR Supp. (No. 44), paras. 106-115 and Annex XIII, U.N. Doc. A/69/44 (2014). This inquiry included an on-site visit in 2013.
217 Ibid Annex XIII, para. 37.
218 Ibid para. 27; CAT Turkey inquiry report (n. 15 above), para. 39.
147
Malcolm Langford,* Cheryl Lorens**and Natasha Telson***
Article 10 Inter-State communications
1. A State Party to the present Protocol may at any time declare under this article that it recognizes the competence of the Committee to receive and consider communications to the effect that a State Party claims that another State Party is not fulfilling its obligations under the Covenant.
Communications under this article may be received and considered only if submitted by a State Party that has made a declaration recognizing in regard to itself the competence of the Committee. No communication shall be received by the Committee if it concerns a State Party which has not made such a declaration. Communications received under this article shall be dealt with in accordance with the following procedure:
(a) If a State Party to the present Protocol considers that another State Party is not fulfilling its obligations under the Covenant, it may, by written communication, bring the matter to the attention of that State Party. The State Party may also inform the Committee of the matter. Within three months after the receipt of the communication the receiving State shall afford the State that sent the communication an explanation, or any other statement in writing clarifying the matter which should include, to the extent possible and pertinent, reference to domestic procedures and remedies taken, pending or available in the matter;
(b) If the matter is not settled to the satisfaction of both States Parties concerned within six months after the receipt by the receiving State of the initial communication, either State shall have the right to refer the matter to the Committee, by notice given to the Committee and to the other State;
(c) The Committee shall deal with a matter referred to it only after it has ascertained that all available domestic remedies have been invoked and exhausted in the matter. This shall not be the rule where the application of the remedies is unreasonably prolonged;
(d) Subject to the provisions of subparagraph (c) of the present paragraph the Committee shall make available its good offices to the States Parties concerned with a view to a friendly solution of the matter on the basis of the respect for the obligations set forth in the Covenant;