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July 1, 2021

Multi-layered critique of the international human rights protection against domestic

violence

Why and how should it be improved?

Author: Valentine Foucart Supervisor: Rebecca Mignot Mahdavi

LLM Thesis in International and European Law Public International Law

Student Number: 13345958

2020 -2021

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ABSTRACT

The overarching aim of this thesis is to criticize the current system of human rights protection against domestic violence on several layers. This paper analyses in particular two UN instruments relevant to tackle domestic violence: The Convention on the Elimination of All Forms of Discrimination against Women and the Declaration on Elimination of Violence Against Women. The method used is the assessment of two initial hypotheses based on a feminist critique and a Third World Approaches of International Law critique. The text of both instruments, as well as their implementation and enforcement systems, are assessed in the light of these two criticisms regarding domestic violence. After proving that the text of CEDAW and DEVAW were promising in terms of content as they both take into account the thoughts of feminist critics, it is demonstrated that the system of enforcement and reservations does not allow these instruments to develop their full potential. It is also argued that while the texts take into account an intersectional approach by addressing particularly vulnerable groups of women, this approach can be tricky as, according to one TWAIL critic, it reveals the contours of a neo- colonialist approach. Finally, the conclusion suggests ways to improve the potential of both instruments and highlights the indirect influence of international law on national and local law through human rights activists.

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Table of Content

ABSTRACT ... 2

Table of Content ... 3

Part I. Introduction ... 4

Section 1) Problem statement and contextualization of the topic ... 4

Section 2) Hypotheses ... 5

Section 3) Definition of domestic violence ... 6

Section 4) Relevant legal frameworks under scrutiny ... 7

1.1. Treaties and Conventions ... 7

1.2. United Nations’ Conference Documents and Special Rapporteur ... 8

1.3. Focus of this thesis on CEDAW and DEVAW ... 8

Part. 2. Evaluation of the instruments ... 10

Section 1) Feminist critiques: questioning the objectivity of international law ... 10

1.1. Spectrum of feminist critics ... 10

1.2. Content of the instruments: do they take into account pervasive influence of patriarchy and masculinist norms? ... 14

1.3. Obstacles to the effective implementation of the instruments and the achievement of their objectives ... 26

1.4. Assessment of the hypothesis ... 30

Section 2) TWAIL critique ... 31

2.1. Parallels and difference between feminist and TWAIL critiques: tensions between first and third world feminisms ... 31

2.2. How is intersectionality considered in the text of the instruments? ... 32

2.3. Reliance on the victim subject ... 35

2.4. Assessment of the hypothesis ... 36

Part 3. Conclusions ... 37

Bibliography ... 39

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Part I. Introduction

Section 1) Problem statement and contextualization of the topic

Violence against women is “one of the most heinous, systematic and prevalent human rights abuses in the world”1 said the United Nations Secretary General in 2007. Even though this statement is more than 10 years old, this reality has not changed.

From a study by the world health organization, an estimated number of 753 million women have been subject to intimate partner violence, non-partner sexual violence, or both at least once in their life.2 Almost one in three women have experienced this type of violence during their lifetime. Most of the time, this violence is perpetrated in their homes by current or former intimate partners or husbands. This violence starts early: “almost one in four ever- married/partnered adolescent girls in the youngest age cohort (15–19 years old) is estimated to have already been subjected to physical and/or sexual violence from an intimate partner at least once in their lifetime”.3 Moreover, one hundred thirty-seven women are killed by a member of their family every day.4 Of 87 000 women murdered in 2017, more than half (50 000) were killed by intimate partners or other family members and more than a third (30 000) were killed by their current or former intimate partner.5

Furthermore, in 2020, with the COVID crisis and the measures of lockdown all around the world, the amount of domestic violence has strongly increased. In some countries, calls to helplines have increased five-fold as rates of reported intimate partner violence increase because of the COVID-19 pandemic.6 Restricted movement, social isolation, and economic insecurity are increasing women’s vulnerability to violence in their homes around the world.

1 United Nations Secretary-General, 'Message on the International Day for the Elimination of Violence Against Women', available at: www.un.org/events/women/violence/2007/sg.shtml

2https://www.unwomen.org/en/what-we-do/ending-violence-against-women/facts-and-figures;

https://cdn.who.int/media/docs/default-source/documents/violence-

prevention/vaw_report_web_09032021_oleksandr.pdf?sfvrsn=a82ef89c_5&download=true (both accessed 30 March 2021). This study is based on 2018 global estimates (based on data from 2000–2018).

3https://cdn.who.int/media/docs/default-source/documents/violence-

prevention/vaw_report_web_09032021_oleksandr.pdf?sfvrsn=a82ef89c_5&download=true , p. XII. (accessed 30 March 2021).

4 United Nations Office on Drugs and Crime (2019). Global Study on Homicide 2019, p. 10.

5 Ibid.

6 https://www.unwomen.org/en/what-we-do/ending-violence-against-women/facts-and-figures#notes (accessed 15 May 2021).

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Unfortunately, the current crisis has only served to reinforce pre-existing violence while at the same time forcefully demonstrating the shortcomings of current national and international protection systems.

Section 2) Hypotheses

Throughout the research conducted for this thesis, I discovered and studied relevant articles of scholars and academics discussing and putting in question the international human rights system of protection against domestic violence as it currently exists. A lot of scholars, mostly from the feminist human rights critics’ movement indeed identified numerous shortcomings of this current international human rights protection. From these numerous readings, certain patterns seem to emerge, opening the way to two types of criticism.

First, the existent international human rights framework protecting women against violence is mainly focused on an egalitarian approach and men point of view. This means that the content and wording of the instruments focus mainly on the importance for women to have as many rights as men; and that these rights should be equal. Women’s rights are therefore mainly compared to those of men without emphasizing the specific character of gender-based violence.

Furthermore, numerous authors emphasize the absolute need to address the root causes of violence against women. The influence of patriarchy, harmful stereotypes, and masculinity should be considered to efficiently tackle this type of violence. The first critique of this system can consequently be based on feminist approaches to human rights and more specifically the application of radical feminist methods as the ‘detection of silence in international law’. The first section will therefore answer in a nuanced and constructive way the following questions:

do the human rights norms on the topic consider the pervasive influence of patriarchy and masculinist norms on society and legal structures? Do they try and succeed in alleviating these problems? If no, how does it fall short? Furthermore, how can one improve the instruments related to these issues?

Second, international instruments seem to represent women as a uniform social group without emphasizing the cultural, ethnic, religious, economic and linguistic differences between them.

Women indeed belong to different groups and communities with specificities and universal instruments of human rights tend to set aside these specificities. It will therefore be asked whether this scheme can in any way favour the protection of (more privileged) western women

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and thus disadvantage non-Western women and the protection afforded to them. We can address this second critique with Third world approaches to International law (TWAIL). The second section of this thesis will therefore answer the following questions: do the instruments of international law and their legal structure reflect the specificities of different groups of women? More broadly, to what extent is it important and necessary to include cultural specificities in these instruments of protection?

Even though violence against women is addressed in a general understanding in these last paragraphs, this thesis will particularly focus on domestic violence against women. As it will be explained in the next section: international instruments dealing with violence against women are not numerous, some of them are non-binding and they moreover do not address explicitly the problem of domestic violence. Moreover, this subject is particularly complicated for international law because of the "private" label it is given.

Section 3) Definition of domestic violence

As this notion will be used throughout the entire thesis and is its central topic, a definition of the terms domestic violence7 must be given in this introductory chapter. The central instrument criticized in this paper will be the Convention on the Elimination of all forms of Discrimination against Woman (CEDAW) which entered into force in 1981.8 This Convention does not in itself contain any definition of gender-based violence or domestic violence. It is only eleven years later that the Committee on the Elimination of Discrimination Against Women, in charge of the monitoring of the Convention, addressed the silence of the Convention about gender-based violence. In its General Recommendation no. 19, the Committee defines gender-based violence as the “violence that is directed against a woman because she is a woman or that affects women disproportionately. It includes acts that inflict physical, mental or sexual harm or suffering, threats of such acts, coercion and other deprivations of liberty.”.9 The Committee made clear that domestic violence is included in this definition.10

7 This term can sometimes be replaced by domestic abuse or intimate partner violence. Out of convenience we will mostly use the terms “domestic violence” but these expressions are interchangeable.

8 UN General Assembly, Convention on the Elimination of Discrimination against Women (1979) A/RES/34/180.

9 CEDAW General Recommendation No. 19, U.N. Doc A/47/38, 11th Session 1999, par. 6.

10 Ibid.

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Another useful definition of gender-based violence can also be found in the Declaration on Elimination of Violence Against Women (DEVAW) that uses a more extensive definition of violence in its article 1: “any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.”11 The last words of this definition are crucial because they pin-point the specificity and therefore complexity of domestic violence: this type of violence is committed by private persons, mostly by men, against women in their home or their community. Except these broader definitions of gender-based violence which include domestic violence, there is no official precise definition of the latter in international law. However, from the website of the United Nations12 as well as from the Belgian and Dutch definition of such type of violence13, it can be emphasized that it is characterized by a pattern of behavior in any intimate relationship based on the gain or maintenance of domination, power or control which happen in the private sphere/life. The behavior can occur from a range of relationships based on marriage, intimacy or blood relation. The abuse can be physical, sexual, emotional, economic or psychological actions or threats that influence the other person.14 This violence can not only affect the intimate partner but also children and other household members.

Section 4) Relevant legal frameworks under scrutiny

1.1.Treaties and Conventions

As stated before, violence against women has not been addressed in numerous international instruments. Even though fundamental treaties of human rights like the International Covenant on Civil and Political Rights (ICCPR) or the International Covenant on Economic Social and Cultural Rights (ICESCR) protect human rights often violated in the case of domestic violence15, these instruments do not address explicitly domestic violence and stay in the

11 UN General Assembly, Declaration on the Elimination of Violence Against Women (1993), A/RES/48/104, art.1.

12 https://www.un.org/en/coronavirus/what-is-domestic-abuse (accessed 20 March 2021)

13 In Belgian Law “intimate partner violence” is punished by the law in the criminal code : art. 410 du Code Pénal de la loi du 24 novembre 1997, https://www.amnesty.be/campagne/droits-femmes/les-violences- conjugales/article/violence-conjugale, and Dutch Law: “ In the Netherlands domestic violence includes intimate partner violence. This violence can take on many forms: physical, sexual and/or psychological. Practically, domestic violence is understood to include abuse of (ex-) partners, children, parents and elderly people; honour- related violence, forced marriage and genital mutilation are also included.” from https://eige.europa.eu/gender- based-violence/regulatory-and-legal-framework/legal-definitions-in-the-eu/netherlands-intimate-partner-violence

14 https://www.un.org/en/coronavirus/what-is-domestic-abuse (accessed 20 March 2021).

15 “Early human rights law enacted by the United Nations is relevant to domestic violence. The Universal Declaration of Human Rights, and its implementing covenants, ICCPR and ICESCR, while they do not explicitly

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universal framework of human rights. These instruments will therefore not be examined in detail in this thesis because they do not address violence against women specifically with a gender-based approach.

1.2.United Nations’ Conference Documents and Special Rapporteur

In the UN, some conferences have been held mentioning the topic of domestic violence.

The documents delivered from them are not binding and non-legally enforceable but are supposed to reflect an international consensus on the state of international law. The first time domestic violence was explicitly mentioned in an official document of the UN was in 1980 with the Report of the World Conference of the United Nations Decade for Women: Equality, Development and Peace, Copenhagen.16 In 1993, the United Nations General Assembly adopted the Declaration on the Elimination of Violence against Women which is a strong but non-binding statement of the international community to recognize the need to fight domestic violence by changing and adapting the legal system. This Declaration identified the subordination of women as a cause for domestic violence and states that: “violence against women is a manifestation of historically unequal power relations between men and women, which have led to domination over and discrimination against women by men.”17

Moreover, a special rapporteur on Violence against women has been established since 1994.

This one has issued several detailed reports on violence against women, its causes and consequences to the Human rights council18. These reports focus on many different forms of violence, in many different countries and many include references to domestic violence.19 1.3.Focus of this thesis on CEDAW and DEVAW

Because a choice needs to be made and it is impossible to analyze all these instruments in the framework of this thesis, the focus will only be on two main instruments of the UN system:

address domestic violence, they articulate a state’s duty to protect fundamental human rights that are commonly violated in domestic violence cases. Those rights include the right to life, the right to physical and mental integrity, the right to equal protection of the laws and the right to be free from discrimination.” See http://hrlibrary.umn.edu/svaw/domestic/laws/international.htm

16 The Report of the World Conference of the United Nations Decade for Women: Equality, Development and Peace, Copenhagen, July 1980, U.N. Doc A/CONF.94/35 (80.IV.30).

17 UN General Assembly, Declaration on the Elimination of Violence Against Women (1993), A/RES/48/104, §6.

18 https://www.ohchr.org/en/issues/women/srwomen/pages/srwomenindex.aspx (accessed 18 March 2021).

19 http://hrlibrary.umn.edu/svaw/domestic/laws/international.htm

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the CEDAW and the DEVAW20. The main goal CEDAW is to end discrimination against women and “ensure that women are treated equally to men across a wide range of areas, such as political and public life, education and employment”21. As already explained in the last section, the content of this instrument does not specifically approach the question of domestic violence, and the two main recommendations which fulfilled this gap in 1992 and 2017 will be analyzed in the next sections.

The most innovative point with the CEDAW is that it includes a gender-specific approach to tackle discrimination against women. While thinking about the creation of this new Convention, the framers concluded that “the gender-neutral symmetrical approach that covered discrimination on the basis of sex in other national treaties did not sufficiently recognize the pervasive discrimination against women on the basis of their sex, and that a convention and a treaty body with an asymmetric and gender-specific approach was needed”.22

The DEVAW is similarly promising and innovative in the sense it recognizes domestic violence as the result of domination and discrimination over women by men. In this sense, it also approaches the issue with a gender-specific approach.

Even if some authors underline these innovative approaches, others criticize some gaps, limitations and silences of these instruments. These authors belong to the different movements of criticism from which the hypotheses were formulated. In the following part of this thesis, the three critiques will be presented and chosen elements of the instruments will be discussed and assessed. At the end of each critic, the introductive hypotheses will be assessed. Finally, they will be put in perspective in the conclusive part and some ways of improvements will be proposed.

20 Instruments of Regional Systems will not be examined: for further researches, it could be interesting to compare their content and implementation with the UN system.

21 Ronagh J.A. McQuigg, ‘Is it Time for a UN treaty on violence against women?’ (2017) 22 the International Journal of Human rights 2

22 A Hellum, Introduction. in A Hellum and H Sinding Aasen (eds), Women's Human Rights: CEDAW in International, Regional and National Law (CUP 2013) 2

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Part. 2. Evaluation of the instruments

Section 1) Feminist critiques: questioning the objectivity of international law 1.1. Spectrum of feminist critics

To begin this chapter, the main features and key takeaways of Feminist theories relevant for our critical analysis of the instruments studied will be summarised. 23

Feminist critics of human rights are plural and various. One can think of a homogeneous feminist theory but it does not fit the reality. Instead, we observe a spectrum of different methods with the main purpose of provoking dialogue and conversations about the various subjects of international law rather than producing a single and triumphant truth.24 As Hilary Charlesworth, an eminent professor and scholar specialized in feminist theories, explains in the symposium on methods of international law that she attended in 1999: “feminist methods will not lead to neat legal answers because they are challenging the very categories of “law” and

“nonlaw”25. At the core of feminist methods are the exposition and continuous questioning of the limited bases of international law’s claim to objectivity and impartiality.26 Moreover, these theories question international law with an emphasis on the importance of gender relations as a category of analysis. The term “gender” is central to the understanding of feminist theories. It refers to the social construction of differences between women and men and ideas/ stereotypes of “femininity” and “masculinity”.27 Feminist analyses aim to demonstrate and explain how and why human rights law and more generally international law have been and continue to be male-oriented. 28

As stated earlier, there is not only one feminist theory. Even though this classification is limited and debated by some scholars29, it is useful to explain this to understand the complexity of this

23 We will not dwell on the definition of feminism in itself: See M-B Dembour, Critiques. in D Moeckli (ed), International Human Rights Law (OUP 2014) 54 for a definition of the different forms of feminism.

24 Hilary Charlesworth, 'Feminist methods in international law' [1999] 93(2) The American Journal of International Law, 379.

25 Ibid.

26 Another interesting thing to pinpoint: Charlesworth explains that feminist methodologies are regularly seen as unscholarly, disruptive or mad because they may clearly reflect a political agenda rather than strive to attain an objective truth. They thus challenge many accepted scholarly traditions. See Ibid.380

27 Charlesworth, (n24) 379. Charlesworth talks about « excess cultural baggage associated with biological sex ».

28 M-B Dembour, Critiques. in D Moeckli (ed), International Human Rights Law (OUP) 54

29 Charlesworth explains in her article that this is not very relevant to classify and separate different theories when trying to tackle one specific topic, Charlesworth, (n22) 381

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spectrum of feminist theories and pinpoint which one will be used and favoured in the analyses of this section.As there are many different ways of being a feminist, there is no agreement on what should be done in respect of human rights situation analysed as problematic for women.30

First, liberal feminism focuses on the notion of equality of rights between men and women. It strands on the assumption that women are equal to men and women should not be excluded from rights enjoyed by men.31 The main goal of this feminist approach is that everyone must have their rights guaranteed. Laws explicitly guarantying principles of sex and gender equality, therefore, constitute its great achievement.32 This principle of equality in front of the law is today mostly accepted and the following sections will show that this equality principle is at the core of international instruments. This thesis will go beyond this approach that one could qualify as mainstream. Liberal scholars main achievement is indeed to include women in the human rights system without any substantial modification, contrary to radical feminists who insist on the need to modify the international law system because it is intrinsically biased and constructed based on domination by men. 33

The two next approaches could be seen as contradictory but they are in reality focusing on the same subject with two different perspectives: the social and cultural roles of women.

On the one hand, cultural feminism, led by Carol Gilligan, is calling for a feminine model of an “ethic of care” to be valued.34 The masculine model of an “ethic of rights” is not universal and this system should not be applied to women because they have fundamentally different ways of thinking than men. This strand established the importance of these different patterns of thinking and acting due to education and different social and cultural roles.35 This movement has important implications for human rights: these ones should be rejected or transformed in order to accommodate the female way of thinking and acting.36 The main argument of this movement is that human rights tend to decontextualize situations, to look at persons as

30 Dembour (n28) 54, and H Charlesworth, and C Chinkin, The boundaries of international law A feminist analysis (1st edn, Manchester University Press 2000)

31 Dembour (n28) 54

32 Ibid.

33 K Engle, International Human Rights and Feminisms: When Discourses Keep Meeting. in D Buss and A Manji (eds), International Law, Modern Feminist Approaches (Hart Publishing 2005) 55

34 C Gilligan, In a different voice: Psychological theory and women’s development (1st edn, Harvard University Press 1993)

35 https://www.thoughtco.com/cultural-feminism-definition-3528996 (accessed 15 May 2021).

36 J Hardwig, 'Should women think in Terms of Rights ?'[1984] 94(3) Ethics 441

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individuals and to be confrontational, and it has little to offer to women who have a different way of thinking and tend to think more “naturally/culturally” their problems through their personal context, for instance by assessing implications of any possible solution for the people for whom they care.37

On the other hand, radical feminists think that “getting women to think themselves as carers is, in itself, a male trick”.38 For them, the focus should be on the subordination of women by men rather than on the equality or difference between them. The key issue is women oppression and the fact that men reduce women to their sexuality. 39 The aim of this movement is the empowerment of women from sexual oppression: even those who are not aware of it because of “false consciousness”. The implications for human rights are also very important: human rights theory and law are on the whole made by men for men and are far from being neutral.40 Human rights are not adequate to address women’s concerns, such as sexual violence in their home and they rely on harmful concepts “such as the public-private dichotomy, which tend to perpetuate men’s sexual subordination of women”.41

This last strand of feminism will be the one favoured in this section. Writings of radical feminists and the reflections that flow from them indeed seem to be the richest and most adequate to criticize the international protection system against domestic violence. The more radical ideas of this movement are very useful in highlighting the defects of the international system. It is important to note, however, that feminist writers are not separated by strict lines and confined to such defined boxes. Therefore, this work will reconcile them with more mainstream ideas from other "feminist branches" in order to make the statement as comprehensive and coherent as possible. The approach adopted in this thesis can be compared to the method of “situated judgement” created by Margaret Radin.42 This means that the use of a variety of feminist approaches is appropriate in feminist legal analysis and that situated judgement, rather than a theory, could help to find the approaches most suitable to criticize the law.43

37 Dembour (n28) 55

38 Ibid.

39 C Mckinnon, Toward a feminist theory of the state (1st edn, Harvard University Press 1989)

40 Dembour (n28) 55

41 Ibid.

42 M Radin, 'The pragmatist and the feminist' [1990] 63 Southern California Law Review 1699

43 H Charlesworth, and C Chinkin, The boundaries of international law A feminist analysis (1st edn, Manchester University Press 2000) 50

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This section will particularly highlight one feminist method: the searching and detection of silences in international law. This method put forward that silences of international law should not be denied because they can be as important as the positive rules and legal structures of international law. An interesting way44 of searching and identifying these “silences” in international law is questioning the dichotomies used in this structure.45 A category highly relevant for the topic of this thesis is the distinction between what is defined as public and private.46 This distinction is a key feature of “classic, liberal and western thought” according to Chinkin. In her critique of the public/ private distinction, she highlights that one can argue there is no reliable or constant basis for such distinction.47 These concepts are in reality complex, shifting and most importantly reflect political choices and preferences. What is framed as the “public sphere” and “private sphere” is related to the level and quality of intrusion of the government related to certain activities and specific actors. As there exists no objective basis for labelling an actor or an activity as ‘private’, the judiciary sphere will often resort to this concept as a device to avoid ruling on political issues.48 The critique of this distinction is relevant for the topic of domestic violence specifically because, according to feminist writers49, women are confines in the private sphere which represents the domestic sphere of the family.

This liberal opposition between public life, the domain of politics, business, economics and law, and domestic private life hides and contributes to maintain the subordination of women and therefore discrimination and violence against them.

The next sub-sections will find answers to the first hypothesis and these main questions: do these instruments take into account the pervasive influence of patriarchy and masculinist norms on society and legal structures? Do they try and succeed in alleviating these problems? If no, how does it fall short? Furthermore, how one can improve these instruments related to these issues?

44 Another interesting way would have been the analysis of the definition and roles of women in international law, this topic could be the subject of further research.

45 Charlesworth (n24) 382, see also Charlesworth, Chinkin, (n43) 51.

46 Charlesworth (n24) 382 and see also C Chinkin, 'A critique of the Public Private Dimension'[1999] 10(2) European Journal of International Law 389

47 C Chinkin, 'A critique of the Public Private Dimension'[1999] 10(2) European Journal of International Law 389

48 Ibid.

49 Ibid. and Charlesworth (n24)

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1.2. Content of the instruments: do they take into account pervasive influence of patriarchy and masculinist norms?

After the introduction of these feminist theories and methods, the thesis directly enters in the analysis of the content of the instruments, the structure lays down as follow: the first section focuses on the content of the CEDAW (1.2.1.) and more specifically the discrimination approach and the egalitarian paradigm adopted in this instrument. The innovation of this approach will be underlined as well as used to demonstrate how it can be restricting and improved in light of the feminist theories. The importance of addressing harmful masculinities will then be explained, this will therefore demonstrate the main flaws of the CEDAW approach as well as its positive evolution. DEVAW (1.2.2.) text will also be examined to assess its approach in the consideration of patriarchy and masculinist norms. The dichotomy of public and private will finally be deconstructed in both instruments (1.2.3.). This analysis will close this section to follow up with an assessment of the power and enforcement mechanisms of the CEDAW Committee to highlight obstacles to the effective implementation of the instruments and the achievement of their objectives.

1.2.1. Content of the CEDAW:

This section focuses on the aspects highlighted in the feminist theories introduced before: the silences detected in the instrument will be used to pinpoint the limitations of the CEDAW’s approach.

In their book “the boundaries of international law: a feminist analysis”, Charlesworth and Chinkin explain: “the new discourse of ‘women’s rights as human rights’ is limited in the way it understands the notion of equality… this allows women only access to a world already constituted by men, not to a world transformed by the interests of women.”50

This section tries to understand how the CEDAW accepts the notion of equality, if and how it tries to transform the world constituted by men by taking into better account the interests of women. This statement is useful to better understand the implication of the equality paradigm.

While reading the CEDAW text, one will quickly notice that this instrument is based on an equality paradigm. In article 1 of the Convention, the term “discrimination against women” is described as: “any distinction, exclusion or restriction made on the basis of sex which has the

50 Charlesworth, Chinkin, (n 43) 229.

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effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.”51 This equality paradigm is explained by the choice to address women’s rights with the angle of discrimination.

This approach of discrimination can be addressed with two layers: first of all, the innovative nature of this approach in this specific instrument compared to previous human rights instruments. Second, the problem of the reliance on a comparison between men and women because it creates difficulties to address systemic gender inequality and harmful masculinities52.

A. Innovative approach of discrimination and gender-based instrument

The CEDAW is the first convention to approach discrimination with an asymmetric and gender-specific approach. The drafters of the Convention were convinced that the gender- neutral symmetrical approach contained in other instruments needed to be overcome because it did not recognize pervasive discrimination against women.53 The idea behind the creation of this convention was therefore to better address systemic discrimination against women. From the preamble, in addition to the “gender-specific approach”54, is outlined a “transformative approach” linking equal rights, social support and socio-cultural elements to support societal transformation. For numerous writers, these two outlooks are the added value of the CEDAW in the human rights system.55

The next sections will assess if these two outlooks are relevant/efficient to tackle not only discrimination but also gender-based violence.

B. A gender-specific approach to ensure substantive equality

There is no use or definition of the term gender in the text of the CEDAW. Like the ICCPR, ICESCR and UN Charter, the CEDAW’s text contains the terms sex and sex-based

51 Art. 1 CEDAW.

52 D Otto, Women's rights. in D Moeckli (ed), International Human Rights Law (OUP 2014) 318

53Hellum, (n22) 2

54 There is a third approach: “holistic approach” that includes civil, political, social and economic rights, we will not elaborate this one further because it is not relevant in the context of gender-based violence.

55 Hellum, (n22) 2 and other contributions.

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discrimination. While the term sex is used as a biological category, the term gender is understood as a social category and it does only appear in human rights discourse in the 1990s.56 But today, the Committee uses regularly the term gender in its work and has even given a definition in General Recommendation 28: ‘(it) refers to socially constructed identities, attributes and roles for women and men and society’s social and cultural meaning for these biological differences resulting in hierarchical relationships between women and men and in the distribution of power and rights favoring men and disadvantaging women”. 57

This evolution of use by the Committee from the term sex to the term gender can be seen as positive because it involves the consideration of hierarchical relationships and distribution of power favoring men. Moreover, the term also has the advantage of stressing “relationality”, i.e.

emphasizing the relation between femininity and masculinity and implying that not only women should be involved in the investigation of gender.58 In contrast, the term sex emphasizes the biological differences between men and women, while the term gender highlights their complementarity.

This change in vocabulary can be linked to the strategy of CEDAW experts to attain substantive equality via a transformative approach. Its purpose is not only to attain substantive equality but also “to alter the existing patriarchal and discriminatory structures and patterns embedded in law, society and culture”.59 Article 5 of the CEDAW is representative of the willingness to go beyond the insurance of full equality before the law and protection against discrimination but also “to address gender-based stereotypes that uphold unequal gender relations”.60 This transformative approach is innovative compared to the one of gender-neutral equality and is regarded by some scholars as “the human rights instrument with the greatest potential to address and combat women’s socio-economic marginalization, dependency and inequality”.61

To return to the heart of the subject, it is important to answer these questions: does this Convention and its specific approach also have the potential to successfully tackle gender-based

56 Hellum, (n22) 1.

57 CEDAW General Recommendation No. 28, U.N. Doc, CEDAW/C/GC/28, 2010.

58 H Charlesworth, and C Chinkin, The boundaries of international law A feminist analysis (1st edn, Manchester University Press 2000) 3.

59 Hellum (n22) 4

60 Ibid.

61 Ibid.

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violence? Is this approach sufficiently innovative to concretely address harmful stereotypes, patriarchal and discriminatory structures and patterns?

C. Silence about gender-based violence

The answers are certainly not black and white, but rather nuanced and multi-layered. The first element to pinpoint is the silence of the instrument about gender-based violence. According to Diane Otto, these are the equality and discrimination models and their subsequent reliance on a male comparator which explains why violence against women is not directly addressed in the text of the instrument.62 Because men do not experience gender-based violence to the same extent as women, the drafters did not include this kind of violence as a form of discrimination in the text. The failure to make specific reference to rights associated with the security of the person confirms that, by the time of the drafting of the Convention, gender-based violence in the private sphere was unknown or accepted as the norm.63

D. Incorporation of general recommendations to fulfil the gap: analysis of their content

However, the Committee pre-empted the evolution of international law on this matter and the raise of awareness about the subject of gender-based violence by releasing a general recommendation in 1992. This recommendation 19 finally interprets gender-based violence as

“a form of discrimination against women” under article 1 of the Convention. Acts of gender- based violence may thus breach specific provisions of the CEDAW even though they do not expressively mention violence.64 This interpretative work of the CEDAW Committee has expanded the obligations of the states to tackle gender-based violence, including domestic violence, as part of the broader concept of gender-based discrimination.

On the website of the United Nations, the first recommendation is described as “historic as it clearly framed violence against women as a form and manifestation of gender-based discrimination, used to subordinate and oppress women. It unequivocally brought violence outside of the private sphere and into the realm of human rights.”65

62 Otto (52)318

63 Ibid.

64 CEDAW General Recommendation No. 19, U.N. Doc A/47/38, 11th Session 1999, par. 6. (GR19)

65 https://www.ohchr.org/en/hrbodies/cedaw/pages/gr35.aspx (accessed 20 May 2021)

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However, with this approach gender-based violence is confined to a form of sex discrimination and it implies that discrimination is the major cause of such violence.66 In this sense, the CEDAW does not recognize that gender-based violence might be a human rights violation in itself. Moreover, it does not overcome the equality paradigm present in previous human rights instruments.

E. Equality paradigm not overcome

This reasoning has been explored by Kirsten Anderson in her thought-provoking article about harmful masculinities.67 She explains that even though the CEDAW is innovative in the sense it accepts violence against women as part of an overall phenomenon which is gender inequality, it does however not overcome the dependence on gender-neutral human rights standards. The term gender inequality is indeed understood as the equal enjoyment with men of international human rights standards. Dianne Otto confirms this thought in her article about

‘disconcerting masculinities’, she explains that the new instrument “remained in the mould of the earlier instruments continuing, to promote women’s equality in a formal sense, as emanating from women’s enjoyment of the same rights as men.”68 Consequently, the underlying assumption of the CEDAW discrimination definition is that women and men are the same.69 This approach does not allow to denounce “embedded and systemic power hierarchies”

at stake when violence against women are concerned.70

According to Kirsten Anderson, the definition of discrimination contained in article 1 CEDAW

“does not conceive of a deeply rooted systemic gender inequality based on lack of power for women”.71 This analysis can explain how violence against women is not defined as a human rights violation per se but rather an action that “impairs or nullifies the enjoyment by women of human rights and fundamental freedoms”.72

66 C Chinkin, Violence Against Women. in Freeman and others (eds), The UN Convention on the Elimination of All Forms of Discrimination Against Women: A Commentary (OUP 2012) 447

67 K Anderson, 'Violence against Women: State Responsibilities in International Human Rights Law to Address Harmful Masculinities' (2008) 26 Neth Q Hum Rts

68 D Otto, ‘Disconcerting ‘Masculinities’: Reinventing the Gendered Subject(s) of International Human Rights Law. in D Buss and A Manji (eds), International Law, Modern Feminist Approaches (Hart Publishing 2005) 117

69 H Charlesworth, C Chinkin and S Wright, ‘Feminist Approaches to International Law’ (1991) 85 American Journal of International Law 613

70 Anderson, (n67) 195

71 Ibid 188

72 GR 19 Committee

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However, the transformative approach with its recognizance of violence as part of an overall phenomenon of unequal gender relations between men and women allows the Committee to treat violence against women not as individual acts but as “linked broadly to gender roles and practices”.73 The following section will examine how the committee's work addresses gender roles and stereotypes as well as patriarchal norms more generally.

F. Transformative approach: harmful masculinities/ stereotypes, patriarchy

In this section, it will be analyzed how the two main general recommendations about gender-based violence are contributing to the transformative approach by taking into account harmful stereotypes, patriarchy and masculinist norms. An understanding of Anderson's statement about power dynamics will be given by analyzing the text of recommendation 19 and an assessment of the improvements brought by recommendation 35 will also be made.

a. Recommendation 19: Questioning traditional attitudes and stereotyped roles

By reading recommendation 19, several paragraphs draw attention because they do not only condemn gender based-violence, but they also question its underlying and structural causes and consequences. Paragraph 11 for example emphasizes that practices involving violence or coercion such as family violence and abuse or forced marriage, etc, are perpetuated by

“traditional attitudes by which women are regarded as subordinate to men or as having stereotyped roles”.74 The underlying consequences of gender-based violence are recognized by the Committee to help to maintain women in subordinate roles. These consequences are described as the deprivation of equal enjoyment, exercise and knowledge of human rights and fundamental freedoms75. Paragraph 23 is important as well because it addresses family violence as an “insidious forms of violence against women”.76 The recommendation also refers to

“traditional attitudes” that help to perpetuate violence. 77

The transformative approach is concretized with the specific recommendations in paragraph 24.78 These measures could be resumed with three pillars: (1) effective legal measures, (2)

73 Anderson (n67) 189

74 GR 19, §11.

75 GR 19, §11

76 GR 19, §23.

77 GR 19, §11,21.

78 GR 19, §24.

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preventive measures, and (3) protective measures. First, states are specifically encouraged to improve their legal framework in the context of domestic violence.79 Second, propositions about social and educational measures with a prevention purpose as the implementation of

“gender-sensitive training of judicial and law enforcement officers”, as well as the request to states to identify in their reports “the nature and extent of attitudes of customs and practices that perpetuate violence against women” are at the core of the recommendations. Moreover,

“effective measures should be taken to overcome these attitudes and practices” and the recommendation introduces the idea of education and public information programmes to help eliminate prejudices that hinder women’s equality.80 Third, protective measures as the insurance of “appropriate protective and support services for victims” as well as rehabilitation programmes in the context of family violence are encouraged.81

b. Jurisprudence of the Committee

The Committee has also further developed its approach through its jurisprudence either via the optional protocol82 or the reporting procedure in the case of domestic violence. Numerous cases of the Committee indeed contained mention of the necessity to address harmful attitudes and stereotypes.83 The Committee urged Hungary in its case Ms. A. T v. Hungary to take appropriate steps to root out practices that are based on the idea of either gender’s superiority and to eliminate discrimination against women in family relations.84 In its inquiry on the murders and disappearances of hundreds in Ciudad Juarez, the Committee asks for “a global and integrated response, a strategy aimed at transforming existing sociocultural patterns, especially with regard to eradicating the notion that gender violence is inevitable”.85

With this progressive jurisprudence, the Committee stresses the importance of transformative equality and highlights that gender violence demands not only formal equal rights between men and women but also a societal transformation in attitudes and behaviors.86

79 GR 19, §24r

80 GR 19, §24f

81 GR 19, §24r

82 UN General Assembly, Optional Protocol to The Convention on the Elimination of Discrimination against Women (1999), A/RES/54/4.

83 Sahide Goecke v Austria CEDAW Communication NO 5/2005, Fatma Yildirim v. Austria, CEDAW Communication No. 6/2005, …

84 A.T. Hungary (2005) CEDAW Communication No. 2/2003, §9.4.

85 CEDAW Report on Mexico CEDAW/C/2005/OP.8/MEXICO, §159, 287.

86 Chinkin (n66) 464.

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c. Lack of understanding of masculinities and power dynamics that lead to systemic discrimination and violence

But is this transformative approach sufficient to address the underlying cause of gender- based violence? Anderson argues the opposite and explains the importance of addressing masculinities in human rights instruments dealing with women’s rights. She explains that performing ‘masculinity’ in a society with clear hierarchies subordinating women is at the core of cases of violence against women.87 It is urgent to "de-mystify" and subject to scrutiny the norms of masculinity and to reconstruct them to effectively eliminate violence against women.88 Masculinities can be defined as a “performance, as set of stage directions, a script that men learn to perform”.89 This one takes the form of qualities and practices that are perceived by society as 'manly'.90 Although the qualities defining masculinities are fluid91, one element is common to all of them: the ability to dominate and exercise control within the gender hierarchy.92 These issues are central to domestic violence which is characterized by these notions of domination and control.93 To tackle efficiently this kind of violence, the texts of the CEDAW and the Committee should take into account this strong link between gender identity formation and the power dynamics that produce these identities.

While CEDAW recognizes that gender identities are socially and culturally produced, it does not ground an understanding of the social and cultural formation of gender identities within the power structures that produce those identities.94 As seen in the previous section, numerous recommendations were written to oblige states to identify and take action to combat stereotypical attitudes, patterns, and roles that result in gender subordination. These recommendations do not, however, ground the formation of these roles or attitudes in underlying power dynamics that are at the roots of acts of violence against women: a sense of entitlement for power and privilege within norms of masculinity.95 This silence undermines the

87 Anderson (n67) 175

88 Ibid.

89 J Beyon, ‘Masculinities and Culture’, open university, (Buckingham/Philadelphia, 2002) 54.

90 Anderson (n67) 177

91 See for more details: Anderson (n67) 177-178

92 Connell, R.W., ‘Masculinities,’ (Allen and Unwin, Sydney, 2005) 67.

93 “Studies about domestic violence in Scotland and Toronto have found levels of violence to be most prevalent in cases where male perpetrators subscribed to patriarchal ideologies of domination and control”: Websdale, Neil and Chesney-Lind, Meda, ‘Doing Violence to Women: Research Synthesis on the victimization of women’ in:

Bowker, Lee H. (ed.), ‘Masculinities and Violence’, Sage Publications, Thousand Oaks/London, 1998, 55.

94 Anderson (n67) 192

95 Ibid.

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Convention's conception of masculinity and limits the Convention's potential to facilitate the transformative change required in underlying power relations in societies in order to effectively work towards the elimination of violence against women.96

So far, only recommendation 19 and the Committee's jurisprudence have been discussed. The following section will analyze Recommendation 35 and demonstrate the developments the Committee has made over the years. Is there a better understanding of these power dynamics to combat violence more effectively?

d. Recommendation 35: towards a better understanding of influence of patriarchy and masculinities?

Recommendation 35 was adopted in 2017 and updated the recommendation 19. The meaning of this recommendation is to provide further guidance to member states to accelerate the elimination of gender-based violence against women. The Committee acknowledges that despite its work in the concluding observations, follow-up procedures and jurisprudence, gender-based violence remains “pervasive in all countries with high levels of impunity”.97 The committee also emphasized the lack of adequate legislation addressing gender-based violence and the erosion of the legal and policy frameworks often justified “in the name of tradition, culture, religion or fundamentalist ideology”.98

In a very interesting way, the Committee is adding some details to the definition of “gender based violence against women”. In addition to making explicit the causes and impacts of the violence, this term indeed strengthens the “understanding of violence as a social rather than an individual problem, requiring comprehensive responses, beyond those to specific events, individual perpetrators and victims/ survivors”.99 There is also an innovative statement about the fact that violence affects women throughout their life cycle and that the term women includes girls as well in this document.100

Paragraph 19 is crucial in the development of the approach of the Committee concerning power dynamics and masculinities, it addresses violence against women “as being rooted in gender-

96 Ibid.

97 CEDAW General Recommendation No. 35, U.N. Doc CEDAW/C/GC/35, 2017, §5-6. (GR35)

98GR 35, §7

99GR 35, §9

100GR 35, §14.

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related factors, such as the ideology of men’s entitlement and privilege over women, social norms regarding masculinity, and the need to assert male control or power, enforce gender roles or prevent, discourage or punish what is considered to be unacceptable female behavior.

Those factors also contribute to the explicit or implicit social acceptance of gender-based violence against women, often still considered a private matter, and to the widespread impunity in that regard.”.101 The Committee also asserts that non-violent masculinities exist and encourages its promotion in education programs.102

Moreover, it recommends the implementation of programs of education and training for judicial and law enforcement officers.103 In the specific case of intimate partner violence, the Committee asks for the inclusion in the programs of a comprehension of the power dynamics characterizing this kind of violence.

This analysis suggests that the Committee's approach is evolving and developing positively by proposing increasingly concrete measures that take into account the power dynamics underlying domestic violence. With this recommendation, Anderson's criticisms have been surpassed. In the light of feminist criticism, the current CEDAW approach can be seen as very promising and innovative in combating violence against women.

1.2.2. Content of the Declaration: beyond the discrimination approach

In this section, the content of the Declaration will be analysed and compared to elements previously examined in the context of the CEDAW. Two mains questions will be answered:

how does this instrument approached the question of patriarchy, harmful stereotypes, and masculinities? Does it overcome the flaws noticed in the previous sections about CEDAW?

At the time of its adoption, this Declaration has been the concretisation of a collective mind shift in two layers.

First, according to Christine Chinkin, this instrument officially brought violence against women into the framework of human rights, therefore, incurring state responsibility.104 Before this instrument, violence against women was rather seen as a matter of development, health or criminal affairs. Historically, domestic violence was not viewed as a violation of women’s

101 GR 35, §19.

102 GR 35, §30b(i).

103 GR 35, §30e(ii).

104 Chinkin (n66) 448

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human rights because it is not perpetuated by the state. It was considered as “natural”, “private”

or “cultural”.105 This instrument has therefore allowed a shift from a social approach to the problem of violence against women to a human rights approach.106

Moreover, similarly to recommendation 19, this instrument tries to overcome the image of violence as a private act and deviant behaviour of an individual by addressing and exposing the systemic and structural nature of that violence. Parallels with the CEDAW are essential because the Declaration on Violence against women was adopted to strengthen and complement the process of its effective implementation. There are indeed multiple mentions of the CEDAW in the preamble of the Declaration.107

The second mind shift is the change of understanding from violence being associated mostly with traditional societies and discrimination to the exposition of “structural inequalities inherent in existing gender relations”.108 Furthermore, the text of the DEVAW is innovative in the highlights of “historically unequal power relations between men and women”.109 Contrary to the CEDAW, this instrument does not choose a “discrimination approach”. Instead, it expressively addresses how power relations and domination impacts the formation of masculinity and femininity. Anderson explains that this instrument opens up to scrutiny for a better understanding of masculinities by placing violence against women within a broader framework of “gender power hierarchies”.110 By doing so, the Declaration successfully conceive masculinity as a norm to be identified and deconstructed.111 Therefore, it imposes “an obligation on states to work toward reshaping harmful masculinities that cause and perpetuate violence against women.”112 Moreover, the definition of violence is not linked with a male comparator, this instrument thus successfully overcome the equality paradigm.113 Women suffer of violence, not because they suffer of discrimination and therefore do not enjoy the same

105 B Stark, "Domestic Violence and International Law: Good-Bye Earl (Hans, Pedro, Gen, Chou, etc.)."

(2001) Loy. L. Rev. 47, 255.

106 Chinkin (n66) 446.

107 §3-4 DEVAW

108 15 years of the United Nationals Special Rapporteur on violence against women (1994-2009) – a critical review, 2008, 15, 33.

109 DEVAW, §6.

110 Anderson (n67) 178

111 Ibid.

112 Ibid.

113 Ibid. 195

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human rights as men, but rather because of systemic power hierarchies and the fact that they have “no real power in either public or private worlds”.114

Similarly to the recommendations of the Convention, DEVAW provides specific measures member states should take to combat domestic violence. In addition to legal system reforms, states should develop legal, political, administrative, and cultural programs to prevent violence against women. Training for law enforcement officials and the promotion of research and collection of statistics on the prevalence of domestic violence are also encouraged. 115

Article 4 j) specifically addresses the role of education to “modify the social and cultural patterns of conduct of men and women and to eliminate prejudices, customary practices and all other practices based on the idea of the inferiority or superiority of either of the sexes and on stereotyped roles for men and women”.116

After this thorough analysis of the content of the texts of the instruments, the public-private dichotomy will be analyzed within them.

1.2.3. Public/private dichotomy is effectively overcome with due diligence obligations

As explained in the presentation of the spectrum of feminist critics, the public-private dichotomy is a crucial topic in feminist theory, especially for feminists from the radical stream.117 This section will assess if and how the Convention and the Declaration overcome this dichotomy. This assessment is important because of the special “private character of domestic violence” which is happening in the intimacy and home of the victim. Charlesworth and Chinkin address it in their book about “the boundaries of international, a feminist analysis”:

they explain that: “international law operates in the public, male word” and that private matters are left to national regulation.118 This strong assumption can be infirmed using CEDAW’s text.

A due diligence obligation is precisely framed in article 2 (e) of the Convention: “states should take all appropriate measures to eliminate discrimination against women by any person, organization or enterprises”.119 This article allowed the Committee to include violence occurring in the “private sphere” by private persons in the two previously analysed

114 Charlesworth, Hilary and Chinkin, Christine, ‘Violence against women: a global issue’, in: Stubbs, Julie (ed.), Women, Male Violence and The Law, Federation Pres, Sydney, 1994, p. 23.

115 http://hrlibrary.umn.edu/svaw/domestic/laws/international.htm

116 DEVAW, art. 4 j).

117 See n 49

118 Charlesworth, Chinkin, (n43) 56

119 CEDAW, art. 2 e)

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