Gender-Sensitive Reparations in the I.V. v. Bolivia Case: A Missed Opportunity?
Source: Int Law Grrls
March 24, 2017
The human rights and feminist lawyers were hopeful. Finally a decision on forced sterilization from the Inter-American Court. Deprived of the remedial austerity of its Strasbourg equivalent, and with a harder legal force than the CEDAW Committee, this judgment was bound to be important. The I.V. v. Bolivia landmark decision on the forced sterilization of a refugee woman in Bolivia was delivered during the late days of 2016.
Inspired by the insightful earlier post by Lisa Reinsberg and Francisco Rivera Juaristi, I here discuss the specific reparations provided by the Inter-American Court and explain why the Court missed an opportunity to do something more transformative.
The reparations in I.V. v. Bolivia demonstrate the usual remedial richness of the Inter-American Court. The Court ordered personalized, specialized, and free medical rehabilitation, considering the direct victim’s sexual, reproductive, psychological and psychiatric health harms and needs. It also ordered the state to include I.V.’s family in the therapy and to pay 50,000 US Dollars in compensation to the direct victim for monetary and non-monetary damages. The Court recognized the encroachment of the applicant’s personal integrity, and the subsequent denial of justice, and commanded the state to publish the judgment and acknowledge its responsibility. As a guarantee of non-repetition, the Court stated that Bolivia needs to secure that consent to sterilization is always prior, free, informed, and full. Hence, all public and private hospitals ought to be equipped with printed, succinct information about the reproductive and sexual health rights of women: for the patients and the personnel. Finally, Bolivia should adopt permanent programs for medical students and professionals on informed consent, stereotyping, gender discrimination and violence.
The reparations ordered by the Court in I.V. v. Bolivia are plentiful, but not groundbreaking. They are largely consistent with existing, cited supranational practice. Indeed, also the CEDAW Committee (in the 2006 case A.S. v. Hungary) highlighted the importance of educating and monitoring medical staff in public and private health centers, and “naming and shaming”-awareness-raising through publication of supranational decisions. Moreover, the 50,000 US Dollars for damages is not that much more than the approximate 30,000 US Dollars that the Strasbourg Court has ordered the state to pay victims of involuntary sterilization (in 2011–12 cases V.C. v. Slovakia; N.B. v. Slovakia; and I.G. and Others v. Slovakia). In comparison to compensation amounts normally figuring in the IACtHR’s decisions, the figure in I.V. v. Bolivia is relatively low. Overall, the Court’s remedial approach is similar to the Inter-American Commission’s recommendations in the same case two years earlier. The landmark nature of I.V. v. Bolivia, in combination with the substantial references to earlier cases, seems to have made the Court self-conscious, adopting a cautious approach.
Regarding the evaluation of remedial gender-sensitivity, as emphasized by Ruth Rubio-Marín, close attention should be paid to the completeness and comprehensiveness of reparations.
Firstly, I would like to point at the narrowness of the Court’s approach to non-repetition. The Court successfully adopted an approach – as highlighted in Gonzalez et al. (“Cotton Field”) v. Mexico (2009) and in the Amicus Curiae by Ciara O’Connell, Diana Guarnizo-Pertala and Cesar Rodriguez-Garavito – which recognized the root of the problem as prevailing gendered and intersectional stereotypes. Bolivia was ordered to implement permanent education for medical students and staff on the pervasiveness of harmful stereotypes concerning who is a(n un)suitable parent (particularly mother). This potentially has a gender-sensitive, transformative impact. Yet, is it enough? Is there not a need to address society at large? I propose that awareness-raising education should also be directed at other key professionals – such as social workers, lawyers, police – for the subversion of existing stereotypes and effective access to both health and justice.
Secondly, I consider the concept of victimhood in the case to be insufficient. While recognizing I.V.’s children as indirect victims in rehabilitative terms, the Court fails to further remedially engage in their harms in terms of compensation. In Cotton Field, by contrast, the IACtHR applied a far-stretching approach to non-pecuniary damages for family members as indirect victims. In the same case, the Court also utilized pecuniary damages. Against this backdrop, the approach to compensation in I.V. v. Bolivia can be considered a step back in the Court’s remedial doctrine on gender violence. Furthermore, the Court – in its stress on guarantees of non-repetition – understands victims, in the collective sense, as potential, future victims. This leaves me with the question: What about people like I.V., who have been forcibly sterilized in the past and have failed to access the justice system, what remedies are available to them?
Finally, I question the terms set for the future monitoring of the judgment’s implementation. I would like to raise the point of openness – highlighted by former UNSRVAW Rashida Manjoo in her 2010 report – intimately linked to remedial transparency and follow-up. In I.V. v. Bolivia, the Court was – unlike in Cotton Field – relatively silent on the state’s reporting obligations. It ordered the state to return within a year, seemingly only once. This is somewhat at odds with the Court simultaneously commanding permanent, structural changes: apparently placing a great deal of trust in Bolivia’s intention to follow through. With reference to past and current state reproductive health practices – demonstrated e.g. in the state’s neglect of the Commission’s recommendations from 2014 – the Court’s reliance on the state can be questioned.
I.V. v. Bolivia importantly recognizes the right to health as a human right in a gender-specific area. The remedial stance taken by the Inter-American Court in the case is a step towards supranational remedial consistency, but leaves many a human rights and feminist lawyer longing for more in terms of gender justice. As its first judgment on forced sterilization, I.V. v. Bolivia is a landmark judgment, no doubt. Nevertheless, it isn’t – unfortunately – a new Cotton Field.