The International Law Framework: Establishing Violence Against Women and Girls as a Human Rights Abuse

November 29, 2021

Celestine Greenwood

As part of our contribution to the 16 Days Campaign this short article will aim to provide a brief synopsis of the international legal framework addressing violence against women. It is not intended to be exhaustive but will address some of the key legal documents and instruments and consider their current force and application in English law.

There are now several international legal instruments that are binding or persuasive in our jurisdiction. That said, the journey toward recognition in law of the issue of violence against women at the international level and efforts to establish legal instruments to tackle it has been long and arduous and, is not yet ended. Starting in the aftermath of World War II and as prodigious efforts to establish and codify human rights were underway the United Nations Commission on the Status of Women was established in 1946, its aims being to monitor the situation of women and to promote women’s rights.

The culmination of 30 years of the Commission’s work was the adoption in 1979 by the United Nations General Assembly of the Convention on the Elimination of All Forms of Discrimination Against Women, more commonly known and referred to as ‘CEDAW.’ Even though the Convention comprehensively addresses a plethora of rights, including reproductive rights, it does not specifically address, or even mention, the issue of violence against women. CEDAW, in common with the other core international human rights treaties, establishes a committee, the Committee on the Elimination of Discrimination Against Women (the CEDAW Committee), comprised of elected experts in the field, to monitor the implementation of the rights established by the Convention. This task includes regular examination of a contracting state party’s performance in meeting the obligations imposed by the Convention via the formal consideration of reports submitted on behalf of the State (the government) as well as reports submitted by civil society organisations. For example, the Government of the United Kingdom last reported to the Committee in 2017 and the next report will be due in the near future. In addition, the Committee issues recommendations and guidance about specific topics in documents known as ‘General Recommendations.’ To date the Committee has issued 38 General Recommendations two of which, Recommendation 19 and Recommendation 35, specifically address violence against women.   Further, CEDAW has an additional instrument, called an Optional Protocol that establishes the right to bring a “communication,” or individual complaint, before the Committee for its consideration and adjudication, in other words a mechanism for legal oversight of individual cases. Decisions of the Committee, acting in this ‘judicial’ function, are published as “views.” Individual countries can choose to submit to this process by ratifying the Optional Protocol as well as the Convention . Ultimately the ‘views’ expressed by the Committee are not fully legally binding as the enforcement powers of the Committee are limited. That said, the Committee’s jurisprudence has been comprehensive and of significant impact addressing issues such as a country’s duties to provide an effective legal framework for the investigation and prosecution of violence which will be explored in the next post. Fortunately, the United Kingdom has ratified both CEDAW and its Optional Protocol meaning that an individual communication arguing that the British state and its relevant institutions has failed to respect, protect and fulfil a women’s right not to be subjected to violence may be submitted to the Committee provided all available domestic remedies have been exhausted.

After the adoption of CEDAW progress was slow until 1993 when the World Conference on Human Rights adopted the Vienna Declaration and Programme of Action recognising the need to eliminate violence against women, recommending the creation of a ‘special rapporteur’ to monitor and report on the issue, and urging the United Nations General Assembly to adopt a declaration on violence against women. This happened later the same year when the UN proclaimed the Declaration on Violence against Women, the first international instrument explicitly addressing violence against women.

Since then, regional instruments aimed at combating the issue have been developed and adopted. First in time, less than twelve months after the Declaration was proclaimed, the Organization of American States adopted the Inter American Convention on the Prevention, Punishment, and Eradication of Violence against Women (also known as Belem do Para). Much later, in 2011, the Council of Europe agreed the Convention on preventing and combating violence against women and domestic violence (also known as the Istanbul Convention). The Istanbul Convention which is based on the four pillars of prevention, protection, prosecution and co-ordinated policies, is widely regarded as being the definitive instrument addressing violence against women. It specifically requires countries to “take the necessary legislative and other measures to promote and protect the right for everyone, particularly women, to live free from violence in both the public and the private sphere.” In line with CEDAW the Istanbul Convention provides for monitoring of the performance of each country which is a state party in implementing effective measures to fulfil the duties set out in the Convention. As yet, however, the United Kingdom has not ratified the Convention and therefore it is not legally binding upon the UK. Notably, however, the UK Government did assert in its last report to the CEDAW Committee that the country has in place the requisite measures to meet its commitments under the Istanbul Convention.

Finally, it is worth mentioning The 2030 Agenda for Sustainable Development  adopted by the United Nations Member States in 2015. The agenda comprises 17 separate sustainable development goals, also known as ‘SDGs,’ each of which has a number of specified targets against which the implementation of the goal can be measured in respect of each country. SDG 5 “Achieve gender equality and empower all women and girls” contains two key targets, namely 5.2 “Eliminate all forms of violence against women and girls in the public and private spheres, including trafficking and sexual and other types of exploitation” and 5.3 “Eliminate all harmful practices, such as child, early and forced marriage and female genital mutilation.” The SDGs are not legally binding or enforceable. However, they do represent a series of commitments on the part of the UK Government. The inclusion of the eradication of violence against women and girls as targets to be achieved by 2030 serves to cement and enhance the international communities, and with it the UK Government’s, commitment to ending this endemic human rights abuse.