Section 6. Internationalizing the struggle against domestic violence

In the 1980s, women’s organizations around the world began campaigning for international recognition and prohibition of domestic violence as a human rights violation. In the 1990s, domestic violence became a major issue in a worldwide campaign to end violence against women, part of a larger on-going effort to promote women’s rights as human rights.

VXffiile these initiatives are important and commendable, their timing raises some troubling questions. ‘Human rights’ were established in the aftermath of the Second World War through the promulgation of a new set of international laws ‘universalizing’ the rights of human beings everywhere.²⁰ Over the last five decades, there have been prodigious efforts to prohibit numerous forms of violence as human rights violations. What, then, explains the delay in recognizing and condemning domestic violence as a human rights violation? One key explanation derives from the vagueness and inconsistency of international law in regard to domestic relationships. There are three general factors at issue: (ι) the state-centred nature of international law; (2) the enduring emphasis in human rights discourse and practice on civil and political rights (i.e. ‘public’ rights); and (3) deference to the family as a ‘private’ domain. The delay in recognizing domestic violence as a human rights violation can be explained by the difficulty of framing abuses suffered by women at home into the conventional framework of international law. ‘The distinction between public and private life in international law is one of the principal theoretical barriers to this effort’ (Sullivan 1995: 127).

Although the Universal Declaration of Human Rights (1948) and other human rights instruments that came into force in the ιg6os and 1970s (e.g. the Inter­national Convenants on Civil and Political Rights, and Economic, Social and Cultural Rights) prohibit discrimination on the basis of sex, international law proved a weak resource for women.

A major breakthrough was the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which was adopted by the United Nations General Assembly in 1979 and came into force in 1981. CEDAW is often described as the international bill of rights for women.²¹ It clearly establishes the ‘indivisibility’ of women’s rights in public and private life (Fried 1994), and brings violations by individuals within the purview of international law, at least indirectly, by making states responsible for the actions of private parties (Article 2). Ratifica­tion or accession to CEDAW obligates states to abolish all forms of discrimination against women. While CEDAW recognizes the importance of culture and tradition in shaping gender roles and family relations, it imposes upon states the obligation to take ‘all appropriate measures’ to modify social and cultural patterns of conduct that are discriminatory or harmful towards women.

Despite the gains that CEDAW represents, it has some serious limitations. It does not explicitly identify violence against women as a human rights violation. And it has even less enforcement power than most other human rights treaties (Zorn 1999: 288-9). The UN committee that administers CEDAW is limited to taking reports from state parties about their efforts to implement its requirements, and issuing recommendations. But the most glaring limitations derive from the reservations that many states have attached to their ratification or accession to CEDAW Although CEDAW is the second most widely ratified human rights treaty (after the Convention on the Rights of the Child), it is the one with the most reservations.

To redress the limitations of CEDAW on matters of violence against women, in the 1980s women’s rights groups ‘began a worldwide campaign to make free­dom from domestic and other forms of violence a universally recognized human right’ (ibid., p.

In 1992, the UN committee for CEDAW issued General Recommendation

no. 19, which holds that gender-based violence is a form of discrimination that states must take measures to eradicate. In 1993, women’s rights groups presented a petition with almost 500,000 signatures from 128 countries to delegates at the World Conference on Human Rights (Vienna, Austria), demanding the recogni­tion of violence against women as a violation of their rights (ibid., p. 289). Also in 1993, the UN adopted the Declaration on the Elimination of Violence Against Women, defining it as ‘any act of gender-based violence that results in, or is likely to result in, physical, sexual or mental harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life’. This Declaration explicitly includes Holence occurring in the family, including wife battering and marital rape.

In 1994, the UN appointed Radhika Coomaraswamy to serve as the first Special Rapporteur on Violence Against Women. The Rapporteur’s role is to build on and extend UN initiatives. This Special Rapporteur’s mandate includes domestic violence and, more generally, promotion of adherence to all inter­national instruments and treaties establishing women’s rights as human rights.

In 1995, the Beijing Platform of Action (issued at the conclusion of the Fourth UN World Conference on Women) included an affirmation of the need to combat domestic violence.²² More than any previous initiative, the Beijing Platform articu­lates a clear set of factors that perpetuate domestic violence,²³ all of which govern­ments are expected to remedy.²⁴ It also identifies the lack of information and statistical data about domestic violence as an obstacle to combating it.

In 1999, the UN adopted an Optional Protocol to CEDAW, which allows individual women or groups of women (from signatory states) who have exhausted domestic remedies to petition the committee for CEDAV^r about violations of the Convention by their governments. This Protocol also grants the committee the authority to conduct inquiries into grave or systematic abuses of women’s human rights in states that are party to the Convention and the Protocol.²⁶

Coomaraswamy has taken a leading role in formulating and promoting legal rationales to clarify states’ responsibilities to prohibit and combat domestic vio­lence in accordance with their international obligations (Coomaraswamy 2000). The two major legal doctrines identified for these purposes are:

i. The doctrine oj state responsibility and due diligence. States have an internationally recognized responsibility and obligation to exercise ‘due diligence’ to prevent, investigate and punish acts by private actors that constitute violations of human rights. Moreover, where a state fails to assume this responsibility, it is complicit in the violations committed by private actors. Complicity includes Jierwasive non­action. State responsibility includes the institution of effective legal measures, including penal sanctions, civil remedies and compensatory provisions to protect women from domestic violence; preventive measures, including public information and education programmes to change attitudes that contribute to the perpetuation of domestic violence; and protective measures to assist women who are victims or at risk of domestic violence.

2. The doctrine of equal protection of the law. International law imposes a duty on states not to discriminate on a number of specified grounds, including sex/gender.

The emphasis of these two doctrines clearly links gender inequality and dom­estic violence, and the obligations of states to combat both. These linkages are based on the following assumptions and principles: (ι) gender violence is a form of discrimination and, as such, violates international human rights standards which all states are obligated to adhere to in their own practices and to enforce within all relationships (public and private) within their jurisdiction; (2) women have a right to equality with men, and this encompasses all relationships, including those of the family; (3) local laws that sanction gender inequality must be re­formed to provide equal protection for women and men, and enforcement must be non-discriminatory.

The development of an international legal framework for women’s rights as human rights has contributed to the mobilization of an international struggle against domestic violence (Bunch and Reilly 1999; Fried 1994). Such efforts have heightened and focused international concern about the rights of women in their relations with family members. Making international standards of rights a reality for women around the world, though, is an on-going and difficult project. It entails bringing local legal regimes into conformity with international law. And it entails reform of social attitudes to recognize the legitimacy of women’s rights and a need for laws and other measures to protect them from violence.