Remedies Under OP CEDAW

"The international protection of human rights should not be confused with criminal justice. States do not appear before the Court as defendants in a criminal action. The objective of international human rights law is not to punish those individuals who are guilty of violations, but rather to protect the victims and to provide for the reparation of damages resulting from the acts of States responsible.”

Case of Velasquez-Rodríguez v. Honduras, Inter-American Court of Human Rights, July 29 1988, para 134.

One of the ultimate aims of bringing any case under the mechanisms of the Optional Protocol to CEDAW (OP-CEDAW) is to obtain the views of the CEDAW Committee as to what remedies ought to be made available to the victim(s). As one of the purposes of the OP-CEDAW is to make the conceptual rights as enshrined in the CEDAW Convention practicably available to women, the remedies envisaged by a particular communication or inquiry should be considered at the outset. Essentially a balance should be struck between the likely impact of the recommendation for the woman concerned and the likelihood of lasting impact for women’s human rights on the whole.

The types of remedies which are available and might be sought through the OP-CEDAW mechanisms have been broadly categorised into three headings[1] - protective, corrective and anti-discriminatory.

Types of Remedies

Protective Remedies

Protective remedies aim to avoid long term or irreparable harm to the victim(s). These would be particularly applicable to damages resulting from interrelated or continuing violations and include interim measures (e.g. providing medical care and treatment).

Corrective Remedies

Corrective remedies are applicable to structural and historical discrimination against women, with the aim of altering how women are being treated in a particular area or by a particular policy. This could also incorporate permanent and temporary special measures (CEDAW Convention Article 4(1)) (e.g. a public investigation to establish the facts followed by the introduction of a quota system for the employment or promotion of women).

Anti-Discriminatory Remedies

Anti-discriminatory remedies incorporate the range of State obligations that fall under the non-discrimination framework of the CEDAW Convention (e.g. the amendment or implementation of the law without delay (Article 2)).

Remedies in international law generally, and of the CEDAW Committee in particular, tend to have a double-sided impact i.e. they have both personal and political influence. Essentially, as well as promoting the personal equality of the individual woman, remedies can have a more political impact in advancing overall women’s equality. In contributing to the overall jurisprudence of the CEDAW Committee, each remedy suggested will inevitably have an impact not only on the individual(s) to whom they are addressed (personal), but will further contribute to larger change for women as a group (personal and political).

Note: [1] For further details see Andrew Brynes, "Human Rights Instruments Relating Specifically to Women, with particular emphasis on the Convention on the Elimination of All Forms of Discrimination Against Women" in Lum Bik, Andrew Brynes and Jane Connors (eds) (1997), Advancing the Human Rights of Women: Using International Human Rights Standards in Domestic Litigation. London: Commonwealth Secretariat. pg40-41