K. Benefits of the Optional Protocol
Both procedurally and substantially, the Optional Protocol represents a potentially important mechanism for protecting persons
with disabilities and for strengthening national capacities. There are benefits not only for victims of human rights violations
but also for States. It is true that, on first glance, States might have little enthusiasm for a complaints or inquiries procedure.
Yet, over half the States that have ratified the Convention have also ratified its Optional Protocol, because the Optional
Protocol can also be helpful for them.
- The Optional Protocol can be a means to strengthen national protection mechanisms. If domestic remedies are prompt and effective,
individuals are less likely to need to petition the Committee once they have exhausted domestic remedies.
- The Optional Protocol can also provide a means to confirm State policy. Not all communications are decided in favour of the
alleged victim. The application of international standards to specific individuals is not necessarily always clear, as their
situations do not always fit into neat compartments. A State party may be convinced it is meeting its obligations under the
Convention and a decision of the Committee in relation to an individual communication or an inquiry can confirm the State's
position.
- In the same vein, the Optional Protocol mandates the Committee to validate or query national court decisions. It will offer
guidance to domestic courts and other human rights protection mechanisms by developing further the substantive content of
the rights under the Convention and related obligations of States. International case law can also promote national jurisprudence.
- The Optional Protocol can also help State parties bring about change. The Human Rights Committee's decision on Toonen v. Australia is a case in point. The Human Rights Committee considered that legislation in the Australian State of Tasmania concerning
homosexuality was incompatible with the provisions of the International Covenant on Civil and Political Rights. The Federal
Government in Australia then used this decision to bring about law reform in the State.
- The inquiry procedure under the Optional Protocol can provide an opportunity to benefit from international expertise to solve
difficult or protracted problems. In particular, country visits by the Committee's members can help analyse problems from
a more objective and independent perspective and provide solutions to problems. On the one hand, these experts can draw on
the experience of other countries. On the other, the international and independent background of the experts can make the
inquiry less politically charged, e.g., because it is not linked to the Government or another political force in the country.
- The Optional Protocol's procedures also clarify how to apply the Convention in specific cases. By examining its application
through the prism of an individual complaint or inquiry, the Committee may broaden and deepen its understanding of the Convention
and its meaning and so refine its recommendations to States (all States, not only the defendant State) and clarify the steps
they need to take.
- The procedures help to incorporate the Convention into domestic law. The Committee's views and recommendations could trigger
law reform as a step in bringing State practice into line with the Convention.
- The Optional Protocol provides a mechanism for strategic litigation by civil society to support key changes. Litigation can
be costly and the outcomes are invariably uncertain. Litigation is therefore not always the preferred option. However, it
can be helpful in certain cases, one of these being strategic litigation. Civil society organizations and public interest
advocates can use litigation as a strategic tool in various ways. For example, litigants can bring a test case as a means
of clarifying the law. The law is then clarified not only for the litigants in the particular case, but also for others facing
similar situations. Bringing one such case and clarifying the law can prevent many problems (and more litigation) in the future.
In this way, organizations can use the Optional Protocol as a means of engaging the views of the Committee on key issues in
domestic implementation or interpretation of the Convention.
- The Optional Protocol can protect victims and potential victims. As an international accountability mechanism for addressing
violations of the rights under the Convention, it can provide alleged victims with interim measures if the situation is critical
and their rights are seriously under threat.
- The complaints procedure is relatively easy to use for victims. There is no time limit for bringing complaints (apart from
the requirement that the alleged violation should not have occurred prior to the entry into force of the Optional Protocol
for the State party) and the procedure can be relatively fast and simple, although much depends on the capacity of the Committee.
There is no requirement to have legal representation and decisions are made in writing.