Violence against women remains one of the most pervasive human rights violations in the world today, and it permeates every society, at every level. Such violence is considered a systemic, widespread and pervasive human rights violation, experienced largely by women because they are women. Yet at the international level, there is a gap in the legal protection of women from violence. There is currently no binding international convention that explicitly prohibits such violence; or calls for its elimination; or, mandates the criminalisation of all forms of violence against women.
This book critically analyses the treatment of violence against women in the United Nations system, and in three regional human rights systems. Each chapter explores the advantages and disadvantages coming from the legal instruments, the work of the monitoring systems, and the resulting findings and jurisprudence. The book proposes that the gap needs to be addressed through a new United Nations Convention on the Elimination of All Forms of Violence against Women, or alternatively an Optional Protocol to the Convention on the Elimination of all Forms of Discrimination against Women. A new Convention or Optional Protocol would be part of the transformative agenda that is needed to normatively address the promotion of a life free of violence for women, the responsibility of states to act with due diligence in the elimination of all forms of violence against all women, and the systemic challenges that are the causes and consequences of such violence.
Author(s): Rashida Manjoo, Jackie Jones
Series: Human Rights and International Law
Publisher: Routledge
Year: 2018
Language: English
Pages: 235
Cover
Half Title
Title Page
Copyright Page
Table of Contents
Contributors
Introduction: Violence Against Women and the Need for International Law
Organisation of this book
Bibliography
1 The Importance of International Law and Institutions
1.1 Why international law?
1.2 The exclusion of women from international law and institutions
1.3 The use of international law instruments to end violence
1.4 Human rights treaties making a transformative difference for women
1.5 Gendering the UN systems: treaty body general comments/recommendations and case law
1.5.1 Case law
1.6 Ending violence against women as customary international law
1.7 Reservations in international treaties as an obstacle to accountability
1.8 The United Nations human rights regime
1.8.1 UN Human Rights Council
1.8.2 United Nations High Commissioner for Human Rights
1.8.3 Special procedures
1.8.3.1 Special Rapporteur on violence against Women, its causes and consequences
1.8.3.2 Special Rapporteur on torture
1.8.3.3 Intersectionality: the roles of two independent experts
1.8.4 UN Women
1.8.5 Commission on the status of women
1.8.6 The Security Council
1.8.7 General Assembly
1.9 Conclusion
Bibliography
2 Exploring the Consequences of the Normative Gap in Legal Protections Addressing Violence Against Women
2.1 Introduction
2.2 The idea of a normative gap
2.3 Examining the characteristics of the normative gap
2.3.1 The domestic normative gap as proxy
2.3.2 Empirically assessing the domestic normative gap
2.4 The size and nature of the normative gap in domestic legal systems
2.5 Effects of the normative gap in domestic legal systems
2.6 Conclusion
Acknowledgement
Bibliography
3 Normative Developments onViolence Against Women intheUnited Nations System
3.1 Introduction
3.2 Development of standards on violence against women
3.2.1 Commission on the status of women
3.2.2 UN Commission on Human Rights and its successor, the Human Rights Council
3.2.3 UN General Assembly
3.2.4 UN Security Council
3.2.5 UN Special Rapporteur on Violence against Women
3.3 United Nations treaty body system
3.3.1 UN Committee on the Elimination of All Forms of Discrimination against Women
3.3.2 UN Human Rights Committee
3.3.3 UN Committee Against Torture
3.4 Conclusion on UN developments
Bibliography
Further reading
4 The African Human Rights System: Challenges and Potential in Addressing Violence Against Women in Africa
4.1 Introduction
4.2 The situation of violence against women in Africa
4.3 The normative framework for the protection of women against violence in Africa
4.3.1 The Constitutive Act of the African Union
4.3.2 The African Charter on Human and Peoples’ Rights
4.3.3 The Protocol to the African Charter on the Rights of Women in Africa
4.3.4 The normative framework for the protection of refugee and internally displaced women in Africa
4.4 The institutional framework for the protection of women against violence in Africa
4.4.1 The African Union and its organs
4.4.1.1 The AU Assembly
4.4.1.2 The African Union Commission
4.4.2 The African Commission on Human and Peoples’ Rights
4.4.2.1 Promotional mandate: State reporting
4.4.2.2 Promotional mandate: resolutions and general comments
4.4.2.3 Protective mandate: communications
4.4.3 The Special Rapporteur on the Rights of Women in Africa
4.4.4 The African Court on Human and Peoples’ Rights
4.4.5 The sub-regional economic communities and the protection of women against violence
4.5 Opportunities and challenges for the protection of women against violence
4.5.1 Opportunities
4.5.1.1 Ratification and domestication of African human rights instruments
4.5.1.2 Comprehensive and coordinated national legislation in compliance with African human rights instruments
4.5.1.3 Enhancing access to justice for women survivors of violence
4.5.1.4 A multi-sectoral and integrated approach in monitoring the African human rights system
4.5.2 Challenges to the protection of women against violence
4.5.2.1 Inadequate resources
4.5.2.2 Relationship between customary/religious law and formal law
4.5.2.3 Lack of a comprehensive domestic monitoring and evaluation framework
4.5.2.4 Legal illiteracy
4.5.2.5 Protection of survivors
4.6 Conclusion
Bibliography
5 The European Convention on Human Rights (ECHR) and the Council of Europe Convention on Violence Against Women and Domestic Violence (Istanbul Convention)
5.1 Council of Europe action on combating violence against women
5.2 The Istanbul Convention: preliminary issues and challenges
5.3 The Preamble
5.4 Overview of the Istanbul Convention
5.4.1 General purposes and scope of the Convention
5.4.2 Definitions
5.4.3 The explicit inclusion of the private sphere
5.4.4 State due diligence obligations
5.4.5 Victim-centred and integrated approach
5.4.6 Data collection
5.4.7 Prevention
5.4.8 Protection and support
5.4.9 Access to justice
5.4.10 Substantive law
5.4.11 Criminal justice and procedural provisions
5.4.12 Migration and asylum and international co-operation
5.4.13 Reservations
5.5 Group of experts on action against violence against women and domestic violence: the GREVIO committee
5.5.1 Work of the committee
5.5.2 Co-operation with NGOs and civil society
5.5.3 Its achievements so far
5.6 Relationship with the European Convention of Human Rights and the European Court of Human Rights
5.7 The Istanbul Convention – not just for Council of Europe members but a norm for the world?
5.7.1 The accession of the European Union to the Istanbul Convention
5.7.1.1 Legal base for accession
5.8 Conclusion
Bibliography
Further reading
6 Violence Against Women: Normative Developments in the Inter-American Human Rights System
6.1 Introduction
6.2 The Belém do Pará Convention: anatomy
6.3 OAS compliance mechanisms related to VAW
6.3.1 The Inter-American Commission of Women (CIM)
6.3.2 The Mechanism to Follow-Up on Implementation of the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women (MESECVI)
6.3.3 Inter-American Commission on Human Rights (IACHR or Commission)
6.3.3.1 Individual petition and case system
6.3.3.2 Precautionary measures
6.3.3.3 Rapporteurship on the Rights of Women
6.3.3.4 Thematic reports and hearings
6.3.3.5 Country visits, reports, and hearings
6.3.3.5.1 Sexual violence in Haiti
6.3.3.5.2 Missing and murdered aboriginal women in Canada
6.3.4 Inter-American Court of Human Rights (IACtHR or Court)
6.3.4.1 Contentious cases (adjudicatory function)
6.3.4.2 Advisory opinions
6.3.5 Provisional measures
6.3.6 The Belém do Pará Convention and the Court’s jurisdiction
6.4 Violence against women jurisprudence in the inter-American system
6.4.1 The first generation of inter-American cases on VAW
6.4.1.1 Maria da Penha Maia Fernandes v. Brazil
6.4.1.2 Raquel Martín de Mejía v. Peru and Ana, Beatriz and Celia González Pérez v. Mexico
6.4.2 The Inter-American Court’s blind spots and subsequent trailblazing on VAW
6.4.2.1 María Elena Loayza-Tamayo v. Peru
6.4.2.2 Caballero Delgado and Santana v. Colombia
6.4.3 Gender enters the picture: State-sponsored violence
6.4.3.1 Plan de Sánchez Massacre v. Guatemala
6.4.3.2 Castro-Castro v. Peru
6.4.4 The second generation of Inter-American cases on VAW
6.4.4.1 In re Cotton Field (Claudia Ivette Gonzalez et al. v. Mexico) (IACtHR 2009)
6.4.4.2 Valentina Rosendo Cantú and another v. Mexico; Inés Fernández Ortega v. Mexico (IACtHR 2010)
6.4.4.3 Jessica Lenahan (Gonzales) v. United States (IACHR 2011)
6.5 Conclusion
Bibliography
7 Closing the Normative Gap in International Law on Violence Against Women: Developments, Initiatives and Possible Options
7.1 Introduction
7.2 ‘Normative gap’ initiative of the former Special Rapporteur on Violence against Women2
7.3 ‘Adequacy of the frameworks’ initiative by the current Special Rapporteur on Violence against Women
7.4 Two possible options
7.5 Conclusion
Bibliography
Index
