Part I. Introduction
Section 2) TWAIL critique
2.4. Assessment of the hypothesis
These various elements enable the initial hypothesis to be answered. It was observed that different groups of women are taken into account in the CEDAW and DEVAW texts through an intersectional approach. However, it was also pointed out that this approach can be criticised as stigmatising certain cultures in addition to essentialising certain groups of women in the Third World as victims of their culture and traditions. This approach may indeed come close to a neo-colonialist discourse where western states try to 'save' the victims from the eastern states instead of including the specificities of their traditions and cultures in the measures taken to combat violence.
166Kapur, (n163) 9
167Ibid.
168Ibid 6
169Ibid.
Part 3. Conclusions
The main takeways will be resumed in this conclusion as well as the answers of the initial hypotheses. Some ways of improvements will be proposed.
Regarding the TWAIL critic, it has been demonstrated that both the CEDAW and the DEVAW take into account an intersectional approach by addressing particularly vulnerable groups of women. However, it has been argued that this approach can be tricky as it reveals the contours of a neo-colonialist approach with the essentialism of gender and culture. Further research would be needed to understand how to overcome these issues in these international instruments.
With the feminist critique, the importance of addressing underlying cause and consequences of domestic violence has been emphasized. After an analysis of the content of the CEDAW and the DEVAW, it has been agreed that their content is very promising an innovative, both successfully including consideration about power dynamics and harmful masculinities that are at the root causes of violence against women. However, it has also been argued that the current CEDAW system of enforcement is too weak and prevent the instrument to develop its full potential. Moreover, the high number of reservations reinforces women’s marginalization in many respects, undermining the idea that women’s rights are as universal as men’s.170
Concerning the DEVAW, it has been showed that, even though it is non-binding, it has an effect on the creation of opinio juris for the development of a new rule of customary international law prohibiting gender-based violence. The consequences of this development could be the subject of further research. In particular, the study of persistent objector statements to this new norm could be interesting.
The development of this new rule encourages an argument: it would be interesting to recognize the prohibition of gender-based violence (and thus including domestic violence) in a specific new instrument to detach it from the discrimination approach. Domestic violence should not only be a violation of human rights because it is a form of discrimination that impairs or nullify the enjoyment or exercise by women of their human rights, the right to a life free from gender-based violence should be protected as a human right per se.
Given the very interesting advances made by the Committee, it would be interesting for states
170 Otto (n52)
to adopt, sign and ratify an additional protocol reaffirming their commitment to respect their obligations and combat violence against women. The DEVAW and CEDAW recommendation 19 contain provisions that would form a very good basis for the drafting of such a protocol.
As this idea is very theoretical and will not be realized without the necessary political will from the states (which is also difficult to measure), it is also interesting to look at the positive effects that these international instruments, at their current state, can already have at the more local level.
It has been showed that these instruments, and especially the general recommendations produced by the Committee of experts, even if they suffer from weak enforcement mechanisms are often used by NGO and activists to change the law at the national and local level.171 International law has therefore an impact on the protection of women against violence, this should not be neglected. Even if the committee's work is not directly binding, it can therefore help on changing attitudes through education and awareness-raising as well as shaping the legal and policy agenda at the 'grassroots' level. For example, the norms contained in the framework of the CEDAW and DEVAW “can be used as entry points for grassroots advocates to lobby State governments to address violence against women in the manner prescribed by international human rights law, and to expend resources to substantiate their human rights commitments”.172
Even if these international instruments do not have a direct effect on national legislation, a hope for long-term change, with the help of activists and NGOs on the ground, can be highlighted. It is indeed thanks to their daily hard work that many victories and guarantees have been achieved in the field of human rights. Even if the effects of these instruments are not visible in the short term, one can hope that this is simply because any process of societal change takes a long time.
One can also hope that the societal change that has been highlighted in this paper, i.e.
challenging patriarchal norms and harmful masculinities to better understand and tackle the root causes of domestic violence, is ongoing and will be over the long haul. 173
171 Keller (n127) and for details Byrnes (n138)
172 Anderson (n67) 11-12
173 Documentary « The Long Haul » seen this end of May https://the-long-haul.org/website/
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