51吃瓜

What's in it?

The draft optional protocol incorporates the features of existing UN complaints procedures. It also incorporates some of the practices of other UN treaty bodies that have developed as their complaints procedures have been used.

The Mauritian Women Case (Communication No. 35/1978)

In Mauritius, until 1977, spouses (husbands and wives) of Mauritian citizens had the right of free access to Mauritius, were immune from deportation and were de facto residents of Mauritius. In 1977 new immigration laws were passed, limiting these rights to the wives of Mauritian citizens only. Foreign husbands lost their residence status and had to apply for a residence permit which could be refused or removed any time by the Minister of the Interior.

A group of 19 Mauritian women used the first Optional Protocol to the ICCPR to complain about the discriminatory law to the Human Rights Committee. They complained that the law discriminated against them on the ground of sex in their ability to enjoy civil and political rights, including the right to be free from arbitrary and unlawful interference with family.

After considering the response of the Mauritian government, the Human Rights Committee adopted the view that the law made an adverse distinction on the grounds of sex on the right to be free from arbitrary and unlawful interference with family and was in breach of the ICCPR.

Broeks v the Netherlands (Communication No. 172/1984)

In the Netherlands, under the Unemployment Benefits Act, married women could not claim continued unemployment benefits unless they proved they were either "breadwinners" (meaning that they earned over a certain proportion of their family's total income) or that they were permanently separated from their husbands. This condition did not apply to married men.

Using the first Optional Protocol, Mrs S.W.M. Broeks complained to the Human Rights Committee that the Unemployment Benefits Act violated her right under article 26 of the ICCPR to equality before the law and equal protection of the law. The Committee found that the law differentiated on the ground of sex placing married women at a disadvantage compared with married men and noted that this differentiation was not reasonable. The Committee found that Mrs Broeks was a victim of a violation, based on sex, of article 26 of the ICCPR.

The case of Broeks v the Netherlands is an example of article 26 of the ICCPR giving protection from discrimination that is not related to a civil or political right. If a law discriminates, article 26 applies whether or not the subject matter of the law is covered by provisions of the ICCPR. Article 26 therefore has the potential to be widely used to oppose discrimination.

Avellanal v. Peru (Communication No. 202/1986)

Article 168 of the Peruvian Civil Code provided that only men were allowed to represent matrimonial property before the Courts. Ms Avellanal, who was married, owned two apartment buildings in Lima. The Supreme Court held that she was not entitled to sue her tenants for overdue rent because she was married and under the Civil Code, only husbands could represent matrimonial property.

Ms Avellanal complained to the Human Rights Committee. In its views, the Committee found that the application of Article 168 of the Civil Code resulted in Ms Avellanal being denied equality before the courts and constituted discrimination on the ground of sex. The Committee expressed the view that Peru was under an obligation to take effective measures to remedy the violations of the ICCPR suffered by Ms Avellanal.

The Convention of the Elimination of All forms of Racial Discrimination

Article 14 of this Convention contains a communications procedure. This communication procedure was used to challenge an instance of discrimination which was based on a combination of race and gender.

Yilmaz-Dogan v. The Netherlands (Communication No. 1/1984)

Ms. Yilmaz-Dogan was a Turkish national residing in the Netherlands. From 1979 she worked in a textile company and in July 1982, her employer requested the Cantonal Court to terminate her employment contract because she was pregnant. He justified his request on the following grounds:

"When a Netherlands girl marries and has a baby, she stops working. Our foreign women workers on the other hand, take the child to neighbours or family and at the slightest set-back disappear on sick-leave under the terms of the Sickness Act. They repeat that endlessly. Since we must all do our utmost to avoid going under, we cannot afford such goings-on."

The Court agreed to terminate Ms Yilmaz-Dogan's contract and she unsuccessfully sought a remedy through legal proceedings in the Netherlands.

Ms Yilmaz-Dogan submitted a communication to the Committee on the Elimination of Racial Discrimination alleging that the Netherlands had violated the Convention on the Elimination of All Forms of Racial Discrimination. The Committee decided that the Netherlands had not protected Ms Yilmaz-Dogan's right to work under the Convention and recommended that the Netherlands:

ascertain whether Ms Yilmaz-Dogan was now gainfully employed, and if not secure alternative employment for her and/or provide her with other equitable relief.

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