Remedies
Under the 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.
-
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 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 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 Byrnes, “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 Byrnes and Jane Connors
(eds) (1997), Advancing the Human Rights of Women: Using International
Human Rights Standards in Domestic Litigation. London: Commonwealth
Secretariat. pg40-41
This
page was last updated on January 30, 2005
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