Domestic remedies

What does it mean to “exhaust domestic remedies”?

According to the CEDAW Convention, States parties have an obligation to ensure there are national mechanisms and remedies to enable women who experience gender/sex discrimination to seek redress and thus, access justice. When states accept to be bound by the CEDAW Convention, they are making a commitment to incorporate its provisions into their domestic laws and procedures. In theory, therefore, where a right as enunciated in the CEDAW Convention has been violated, the woman or women affected ought to be able to seek adequate redress from within the national legal system. Domestic courts and domestic laws should protect against the infringement of any or all rights allocated to women by virtue of the CEDAW Convention. For this reason, as well as to avert frivolous claims, and to encourage States parties to provide effective remedies for violations of the CEDAW Convention, a communication submitted prior to the exhaustion of domestic remedies will not normally be admitted for consideration by the CEDAW Committee.

“The Committee shall not consider a communication unless it has ascertained that all available domestic remedies have been exhausted unless the application of such remedies is unreasonably prolonged or unlikely to bring effective relief.”

OP-CEDAW Article 4(1)

The requirement that all domestic remedies must be explored and exhausted before seeking remedies from an international forum, in this case the CEDAW Committee, is one of the basic rules in international law. The core purpose of this rule is to ensure the State has the opportunity to rectify or remedy the alleged violation(s) through existing national mechanisms that are available to victims of sex/gender discrimination. In addition, this principle aims to ensure that the floodgates are not opened to a series of accusations against States parties at the international level, before attempts have been made to address them domestically. Thus, remedies at the international level should only be viewed as supplementary to effective national remedies. In an ideal scenario, full national-level implementation of the CEDAW Convention should effectively render void the need for women to seek redress or access to justice at the international level.

Nevertheless, the requirement to exhaust domestic remedies is not absolute and should not constitute an impediment to accessing international remedies. Both the OP-CEDAW and the jurisprudence of international human rights law provide for exceptions to this rule. For instance, in situations where no remedies for the violation are available, where the remedies available are “unreasonably prolonged” (i.e. unreasonably time-consuming) or where remedies are “unlikely to bring effective relief”, the CEDAW Committee can and will exercise their discretion to bypass this requirement.

What constitutes an effective domestic remedy? What constitutes an effective domestic remedy is ultimately decided on a case-by-case basis. However, these decisions are usually made taking into account the following:[1] The case has been considered by all appropriate legal and administrative fora within the domestic legal system without a proper review or assessment of the alleged violations; The case has been considered by all appropriate mechanisms but appropriate remedies do not exist; The domestic remedy available provides inadequate restitution, compensation, rehabilitation or other relief to the victim; Legal barriers, e.g. lack of legal capacity, prevent the victim from seeking redress; The victim has been deterred or prevented from seeking redress through intimidation or threats; Widespread gender discrimination in the administration of justice or weakness in the rule of law that generally render the domestic procedures ineffective; Practical constraints render the remedy inaccessible (e.g. financial costs that are so burdensome as to prevent the victim from pursuing the remedy available; a geographic location that makes the relevant forum inaccessible to the victim; or a failure by the State party to provide translation where the victim is unable to speak or comprehend the working language of the relevant forum); and The domestic remedy itself incorporates discriminatory elements, such as restrictions on the evidentiary weight of women’s testimony. In all cases, whether it is alleged that domestic remedies have proven inadequate or unavailable, the claim must be fully substantiated with evidence and a detailed account of the steps taken at the domestic level. Note: [1] See Inter-American Institute of Human Rights. Optional Protocol. Convention on the Elimination of All Forms of Discrimination against Women. San Jose: 2000. pp50-51