Human Rights of Women: National and International Perspectives

8. Toward More Effective Enforcement of Women's Human Rights Through the Use of International Human Rights Law and Procedures

Chapter 8 Toward More Effective Enforcement of Women's Human Rights Through the Useof International Human Rights Law and Procedures Andrew Byrnes Introduction The proliferation of human rights standards at the international level in the last forty-five years has been a striking feature of the development of international law in that period. While there had previously been international concern with issues that we would now characterize as human rights issues, the volume and scope of international and regional instruments in the field of human rights is now extensive. This period has also seen some important developments in the recognition by the international communitythat sex/gender is an important category of analysiswhen it comes to examining the enjoyment of human rights, a recognition reflected in particular in the elaboration of a number of important instruments dealing with discrimination against women.1 As a result, the extent of formal protection of the rights of women under general human rights law and gender specific regimes is quite extensive (although largely worked out through a non-discrimination framework). This is not to say that there are not important areas in which the further elaboration or formulation of substantive norms is desirable.2 Furthermore, like other areas of international human rights, the gap between the formal guarantees and the extent to which the rights are actuallyenjoyed in practice is frequently a wideone. In addition to the development of substantive norms, many bodies and procedures have been established to promote the implementation 190 Andrew Byrnes of those norms. While within the European Convention system there was an enforcement procedure much earlier (and within the International Labour Organisation even before that), the elaboration of procedures within the United Nations human rights machinery to promote the implementation of human rights standards was a notable feature of the 1970s and 1980s. Inter-governmental organizations, non-governmental organizations (NGOs) and some states devoted a great deal of energy and resources to making these enforcement and implementation mechanisms as effective as such international mechanisms can be, and significant progress has been made in some respects. In this chapter I am adopting a fairly broad understanding of the term "enforcement" and do not confineit to those (quasi-)judicial complaint procedures that result in binding or quasi-binding adjudications in individual contentious cases.3 Nonetheless, there are many who consider that the attention given by many international human rights bodies to issues that predominantly or overwhelmingly affect women or to the extent to which women may be the victims of rights violations identical or similar to those suffered by men (though mediated through gender as well) has been inadequate. Many of those criticshave called for a strengthening of the procedures and bodies that have primary responsibilitywithin "women's issues," as well as arguing for greater attention to violations of the human rights of women within the so-called "mainstream" bodies. Others have queried whether the international system can adequately respond to the legitimate claims of women because of its conceptual and institutional limitations.4 This chapter discusses whether and how a greater use and more effective deployment of international human rights procedures and substantive lawmight help to promote the enjoymentof human rights by women. My major focus is the use of international procedures to advance human rights claims of particular importance to women.My primary emphasis is the organs of the United Nations, mainlybecause I have some familiarity with them. In many respects resort to regional mechanisms of enforcement may well provide a much more effective route for action than the UN mechanisms.5 1 also briefly consider the use of international standards in the national arena as a means of advancing those claims.6 The chapter touches on the following matters: • the variety of procedures which are available at the international and regional level for the reception of allegations of human rights violations; • some of the limitations and drawbacksof these procedures; Enforcement Through International Law and Procedures 191 • procedures that might be profitably used for pressing claimsofviolations of women's rights (and which are presently underutilized); • Using international materialdomestically. The International Perspective General Traditionally, the role of international systems for the protection of human rights has been viewedas supplementary to that of the national authorities, with whom the primary responsibilityfor the implementation of binding international standards rests. It is up to the national authorities in the first instance to prevent violationsof human rights or to provide remedies for those...