Manjoo - The Legal Protection of Women From Violence

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DI PADOVA
AN: 1743221 ; Rashida Manjoo, Jackie Jones.; The Legal Protection of Women From Violence : Normative
Gaps in International Law
Account: s4120740
The Legal Protection of Women from
Violence
Copyright © 2018. Routledge. All rights reserved. May not be reproduced in any form without permission from the publisher, except fair uses permitted under U.S. or
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 criminalisa-
tion 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 monitor-
ing 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.
Rashida Manjoo is a Professor in the Department of Public Law, University of Cape

Town, South Africa and a Visiting Professor at Queen Mary University London. Until July
2015, she held the position of United Nations Special Rapporteur on Violence against
Women, its Causes and Consequences, a post she was appointed to in 2009 by the UN
Human Rights Council. Professor Manjoo is the former Parliamentary Commissioner of
the Commission on Gender Equality, an institution created by the Constitution of South
Africa, with a mandate to oversee the promotion and protection of gender equality. She
has also been involved in social context training for judges and lawyers, where she has
designed both content and methodology. She has over four decades of experience in social
justice and human rights work both in South Africa and abroad. Her research interests
include human rights broadly with a particular focus on women’s human rights. In the six
years as Special Rapporteur she has gained a unique insight into the normative social
contexts and realities facing women and girls in their quest for a life free of all forms of
violence. She has extensive first-hand knowledge on the issues of normative gaps, indivi-
dual and State accountability and responsibility, and regional normative frameworks.
Jackie Jones is Professor of Feminist Legal Studies and activist in the women’s human rights
movement and has written, taught and spoken about the need to eliminate violence against
women and children using law all over the world. She teaches at the University of the West
of England and has specialised in the law in relation to different aspects of ending violence
against women, especially human trafficking, as well as gender equality. Jackie has published
papers on different aspects of gender, including, transsexual rights in the workplace, same-sex
marriage, equality legislation and human dignity. She has recently been appointed as the
applicable copyright law.
Chair of the Academic Advisory Panel on Human Trafficking in Wales. She is past President
of European Women Lawyers Association and trustee of two women’s organisations in the
UK; she is regularly asked to speak and train lawyers and input her views to policy initiatives
at local, regional and international levels. She is co-editor (with Prof. John Winterdyk) of the
Palgrave International Major Reference Work on Human Trafficking (2018).
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in International Law
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Human Rights and International Law
Series Editor:
Professor Surya P. Subedi, OBE, QC (Hon)
This series will explore human rights law’s place within the international legal
order, offering much-needed interdisciplinary and global perspectives on human
rights’ increasingly central role in the development and implementation of
international law and policy.
Human Rights and International Law is committed to providing critical and
contextual accounts of human rights’ relationship with international law theory
and practice. To achieve this, volumes in the series will take a thematic approach
that focuses on major debates in the field, looking at how human rights impact
on areas as diverse and divisive as security, terrorism, climate change, refugee law,
migration, bioethics, natural resources and international trade.
Exploring the interaction, interrelationship and potential conflicts between
human rights and other branches of international law, books in the series will
address both historical development and contemporary contexts, before outlining
the most urgent questions facing scholars and policy makers today
Available titles:
Adoption Law and Human Rights: International Perspectives
Kerry O’Halloran
Tax Havens and International Human Rights

Paul Beckett
The Effectiveness of the UN Human Rights System

Reform and the Judicialisation of Human Rights
Surya P. Subedi
Socio-Economic Human Rights in Essential Public Services Provision

Marlies Hesselman, Antenor Hallo de Wolf and Brigit Toebes
Forthcoming titles:
The Right to Truth in International Law
Victims’ Rights in Human Rights and International Criminal Law
Melanie Klinkner and Howard Davis
About the Series Editor

Professor Surya P. Subedi, OBE, QC (Hon) is Professor of International Law,
University of Leeds, member of the Institut de Droit International and former
UN Special Rapporteur for human rights in Cambodia.
https://www.routledge.com/Human-Rights-and-International-Law/book-
series/HRIL
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The Legal Protection of
Women from Violence
Normative Gaps in International Law
Edited by
Rashida Manjoo and Jackie Jones

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First published 2018
by Routledge
2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN

and by Routledge
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Routledge is an imprint of the Taylor & Francis Group, an informa business
© 2018 selection and editorial matter, Rashida Manjoo and Jackie Jones;
individual chapters, the contributors
The right of Rashida Manjoo and Jackie Jones to be identified as the
author of the editorial material, and of the authors for their individual
chapters, has been asserted in accordance with sections 77 and 78 of
the Copyright, Designs and Patents Act 1988.
All rights reserved. No part of this book may be reprinted or
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British Library Cataloguing in Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloging in Publication Data
Names: Jones, Jackie, 1964- author. | Manjoo, Rashida, author.
Title: The legal protection of women and girls from violence :
normative gaps in international law / Jackie Jones and Rashida Manjoo.
Description: Abingdon, Oxon [UK] ; New York : Routledge, 2018. |
Series: Human rights and international law | Includes bibliographical
references and index.
Identifiers: LCCN 2017053639| ISBN 9781138737969 (hbk) | ISBN
9781351732840 (web pdf) | ISBN 9781351732833 (epub) | ISBN
9781351732826 (mobipocket)
Subjects: LCSH: Women–Violence against. | Women–Crimes against–
Law and legislation. | Women–Legal status, laws, etc. | Women
(International law)
Classification: LCC K5191.W65 J66 2018 | DDC 344.03/288–dc23
LC record available at https://lccn.loc.gov/2017053639
ISBN: 978-1-138-73796-9 (hbk)
ISBN: 978-1-315-18500-2 (ebk)
Typeset in Galliard
by Swales & Willis Ltd, Exeter, UK
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Contents
List of Contributors vi
Introduction: Violence Against Women and the Need for International Law 1
Aisha K. Gill
1 The Importance of International Law and Institutions 9

Jackie Jones
2 Exploring the Consequences of the Normative Gap in Legal

Protections Addressing Violence Against Women 40
David L. Richards and Jillienne Haglund
3 Normative Developments on Violence Against Women in the

United Nations System 73
Rashida Manjoo
4 The African Human Rights System: Challenges and Potential in

Addressing Violence Against Women in Africa 107
Nicholas Wasonga Orago and Maria Nassali
5 The European Convention on Human Rights (ECHR)

and the Council of Europe Convention on Violence Against
Women and Domestic Violence (Istanbul Convention) 139
Jackie Jones
6 Violence Against Women: Normative Developments in the

Inter-American Human Rights System 166
Caroline Bettinger-López
7 Closing the Normative Gap in International Law on Violence

Against Women: Developments, Initiatives and Possible Options 199
Rashida Manjoo
Index 215
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Contributors
Caroline Bettinger-López is a Professor of Clinical Legal Education and Direc-

tor of the Human Rights Clinic at the University of Miami School of Law. She
also serves as an Adjunct Senior Fellow at the Council on Foreign Relations.
Professor Bettinger-López recently completed a two-year term in the Obama
Administration, where she served as the White House Advisor on Violence
Against Women, a senior advisor to Vice President Joe Biden, and a member of
the White House Council on Women and Girls. Professor Bettinger-López’s
scholarship, practice, and teaching concern international human rights law and
policy advocacy, violence against women, gender and race discrimination, immi-
grants’ rights, and clinical legal education. Professor Bettinger-López regularly
litigates and engages in other forms of advocacy before the Inter-American
Human Rights system, the United Nations, federal and state courts, and legisla-
tive bodies. Professor Bettinger-López is lead counsel on Jessica Lenahan (Gon-
zales) v. United States (Inter-American Commission on Human Rights, 2011),
the first international human rights case brought by a domestic violence victim
against the U.S.
Aisha K. Gill is Professor of Criminology at University of Roehampton, UK.
Her main areas of interest and research are health and criminal justice responses
to violence against black, minority ethnic and refugee women in the UK, Iraqi
Kurdistan and India. She has been involved in addressing the problem of violence
against women and girls/‘honour’ crimes and forced marriage at the grassroots
level for the past 17 years. Her recent publications include articles on crimes
related to the murder of women, femicide, coercion and forced marriage, child
sexual exploitation and sexual abuse in South Asian communities, female genital
mutilation and sex selective abortions. She has published widely in refereed
journals such as British Journal of Criminology, Current Sociology, European
Journal of Women’s Studies, Feminist Criminology, Feminist Legal Studies, Femin-
ist Review, Journal of Gender Studies, Journal of Social Welfare and Family Law,
Violence against Women Journal and Women’s Studies International Forum.

Jillienne Haglund is an Assistant Professor of Political Science at the University
of Kentucky. Her research interests include human rights, international organisa-
tions, international law, and comparative political institutions. Her work largely
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Contributors vii
seeks to illuminate the extent to which international law constrains state human
rights behaviour. Her book, Violence Against Women and the Law (co-authored
with David Richards) uses original data on cross-national violence against women
legal protections to explain why states adopt strong legal protections, as well as
assess the extent to which the presence and strength of national laws are
associated with better women’s rights outcomes. Her current research projects
examine the effectiveness of regional human rights courts and the role of multi-
ple, overlapping international human rights legal commitments on state human
rights practices.
Jackie Jones is Professor of Feminist Legal Studies and activist in the women’s
human rights movement, has written, taught and spoken about the need to
eliminate violence against women and children using law all over the world. She
teaches at the University of the West of England and has specialised in the law in
relation to different aspects of ending violence against women, especially human
trafficking, as well as gender equality. Jackie has published papers on different
aspects of gender, including, transsexual rights in the workplace, same-sex
marriage, equality legislation and human dignity. She is member of the Advisory
Group on the Istanbul Convention set up to ensure ratification through Parlia-
ment in the UK and has recently been appointed as the Chair of the Academic
Advisory Panel on Human Trafficking in Wales. She is past President of Eur-
opean Women Lawyers Association and trustee of two women’s organisations in
the UK; she is regularly asked to speak and train lawyers and input her views to
policy initiatives at local, regional and international levels. She is co-editor (with
Prof. John Winterdyk) of the Palgrave International Major Reference Work on
Human Trafficking (2018).
Rashida Manjoo is a Professor in the Department of Public Law, University of
Cape Town, South Africa and a Visiting Professor at Queen Mary University
London. Until July 2015, she held the position of United Nations Special
Rapporteur on Violence against Women, its Causes and Consequences, a post
she was appointed to in 2009 by the UN Human Rights Council. Prof Manjoo is
the former Parliamentary Commissioner of the Commission on Gender Equality,
an institution created by the Constitution of South Africa, with a mandate to
oversee the promotion and protection of gender equality. She has also been
involved in social context training for judges and lawyers, where she has designed
both content and methodology. She has over four decades of experience in social
justice and human rights work both in South Africa and abroad. Her research
interests include human rights broadly with a particular focus on women’s human
rights. In the six years as Special Rapporteur she has gained a unique insight into
the normative, social contexts and realities facing women and girls in their quest
for a life free of all forms of violence. She has extensive first-hand knowledge on
the issues of normative gaps, individual and State accountability and responsi-
bility, and regional normative frameworks.
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viii Contributors
Maria Nassali is an international human rights and governance practitioner and
activist. She holds a Doctorate, LLD, in Human Rights from the University of
Pretoria and Masters in Law and Development from the University of Warwick,
UK. Nassali is a lecturer at Makerere University and Chief Executive Officer of

International Governance Alliance (iGA), an East African regional organisation
that links theory to practice. Nassali has successful merged academic rigour with
activism, as demonstrated by her track record of resuscitating organisations for
strategic positioning. Nassali is the author of Beating the Human Rights Drum:
Applying human rights standards to NGOs’ governance (PULP) 2015. She is a co-
author with Haroub Othman of Towards Political Liberalisation in Uganda
(2002). Her recent papers include ‘A Political Coming of Age for Ugandan
NGOs? The Campaign for Free and Fair Elections,’ in Controlling Consent:
Uganda’s 2016 Elections.
Nicholas Wasonga Orago is a passionate and committed human rights advocate.
His main area of speciality is economic and social rights. Apart from his research
exertions, Dr Orago has worked extensively in the area of human rights, starting
as legal and research assistant at the Federation of Women Lawyers (FIDA-
Kenya); as a research assistant at the Research, Policy and Legislation Department
of the Kenya National Commission on Human Rights; as a protection assistant at
the United Nations High Commissioner for Refugees (UNHCR); and as a
gender based violence field advisor at the United Nations Population Fund
(UNFPA). Dr Orago is currently a lecturer at the School of Law, the University
of Nairobi. His areas of research include comparative constitutional law, interna-
tional human rights law, international humanitarian law and gender equality.
David L. Richards is Associate Professor of Human Rights and Political Science
at the University of Connecticut. He is the author (with Jillienne Haglund) of
Violence Against Women and the Law (Routledge), which uses original data
about domestic gender-violence laws in 196 countries to examine what laws
exist, how strong they are, how gender-violence laws come to be enacted, and
with what outcomes they are associated. His current research projects include a
study of the legal frameworks addressing the international trade in devices used
for torture and ill-treatment, as well as a framework for assessing the level of
states parties’ substantive commitment to treaties such as CEDAW.
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Introduction
Violence Against Women and the Need

for International Law
Aisha K. Gill
Violence is a key factor in the production, maintenance and legitimisation of

domination and subordination. It has multiple forms that are interrelated, co-
constitutive and mutually reinforced by the state, institutions and individuals.
This is especially true regarding violence against women and girls, which remains
one of the most widespread and pervasive human rights violations in the world
today, permeating every society at every level (Mackinnon, 2006; Gill, Heathcote
and Williams, 2016). Such violence is considered a systemic form of abuse,
experienced largely by women simply for being women and by girls simply for
being girls. Yet, at the international level, there is a gap in their legal protection
from violence. There is currently no binding international convention that
explicitly prohibits such gendered violence, calls for its elimination or mandates
for its criminalisation.
Everyday forms of violence and violence as a daily reality are observed in
various contexts and can be linked to diverse methods, perpetrators and agendas.
‘Violence against women’ (VAW), an intentionally broad term, is understood to
be a salient outcome of systemic gender inequality across the globe. It encom-
passes any physical, sexual, psychological, emotional, financial or social harm
caused to a woman on the primary or partial basis of her gender. This harm can
be inflicted either by individuals (known or unknown to the victim/survivor),
groups, institutions or states. While also recognising that gendered abuse –
domestic violence in particular – is linked to other systems of inequality based
on sexuality, race and class, this book uses the term ‘violence against women’ to
acknowledge the specific, gendered nature of harm that women encounter, often
in private or domestic arrangements. Nevertheless, while we conceptually favour
the broad term ‘violence against women’, the contributors to this book also use
the terms ‘gendered violence’ and ‘gender-based violence.’ Thus, although we
fully recognise that any attempt to define these terms would be highly complex
and contested and that they cannot be universally applied to all women without
modification or qualification – as revealed by the experiences of black, minority
ethnic, lesbian and refugee women – it is the pervasive nature of VAW across
cultures that has led us to focus on its gendered nature (Bhabha, 2004; Channa,
2013; Hester, 2013; Thiara and Gill, 2010).
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2 Aisha K. Gill
Over the last four decades, there have been both increasing global awareness of
VAW and more criminal justice measures and other interventions aimed at
preventing it. This increased awareness can be attributed largely to the activism
of feminists, who have fought for the right of women to be free from violence in
the home and beyond. These feminists have exposed the patriarchal gendering of
the public–private binary and the limits of the concept of rights, particularly as
deployed in legal and political life (Larasi, 2013; Patel and Siddiqui, 2010; Yuval-
Davis, 2010).
While recent critics of feminism have characterised the concept of ‘intersec-
tionality’ as a theoretical privilege reserved for those (feminists) with power,
feminism has always recognised the role of different forms of power and,
importantly, the interplay between them (Collins, 2000; Walby, Armstrong and
Strid, 2012; Yuval-Davis, 2010). For example, feminist thinking has helped
uncover both the notions of heteronormativity often inherent in discourses on
gender and the way socio-economic status can be not only a source of oppression
for women but also a privilege reserved for certain women at the expense of
others (Collins, 2000; Dworkin, 1979). Equally important are race and nation-
ality and how these affect experiences of oppression and inequality, both within
and between different groups. This understanding has led some feminists to
pinpoint that issues of violence – which affect black, minority ethnic and refugee
women and girls disproportionately – are often treated as separate from VAW in
general (Gill and Brah, 2014; Conaghan, 2009; Ferree, 2011).
Furthermore, particular groups of women and girls are often overlooked in
terms of policymaking, an oversight that leads to insufficient information and
data about women as a large and diverse group. Thus, there is inadequate data on
particular groups, including black and minority ethnic women, those with
mental-health needs, those with insecure immigration status, those with disabil-
ities including learning disabilities, older women, and girls who are within or
looked after by institutions (Jones, 2015). An in-depth study of female asylum
seekers undertaken by Women for Refugee Women found that 67% of those
refused asylum had been made destitute and that 16% of these female refugees
had experienced sexual violence while in this impoverished state. Although it
remains true that international human rights law allows states to differentiate
between citizens and non-citizens in certain policy areas, including those related
to immigration control, differentiation between citizens and non-citizens should
not apply in relation to the enjoyment of rights as a whole or to inalienable rights
such as the right to life or to be free from torture or cruel, inhuman and
degrading treatment.
The concept of law is an important one that serves as an effective tool to enable
individuals to enforce their rights and for nation states to be held accountable for
their actions/inactions. International law is the means by which nation states are
held to account by other nation states and individuals. These obligations are
binding through their adoption and ratification by the community of nations.
International law therefore can, and does, play an important role in progressing
transformative positive change for women and girls across the globe. In the
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Introduction 3
context of calls to address the normative gap in international law, ensuring that a
legally binding international norm on eliminating VAW both exists and is
enforced in one document, is a key indicator of the international community of
nations’ commitment to eradicating this form of abuse.
Organisation of this book

The editors of this collection provide a rationale for calling for an international
instrument to combat VAW, including the need to address the state account-
ability deficit that is currently the norm. This book therefore maps what this gap
looks like and proposes that it should 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 Elim-
ination of all Forms of Discrimination against Women (CEDAW). A new Con-
vention/Optional Protocol would form part of the transformative agenda
required to address:
• the normative promotion of a life for women that is free from violence
• the responsibility of states to act with due diligence in eliminating all forms
of VAW
• the systemic challenges that constitute the causes and consequences of such
violence.
The adoption of the Declaration on the Elimination of Violence against

Women (DEVAW) in 1993 was considered a seminal development in addressing
VAW. This declaration has provided a comprehensive framework in terms of
defining the scope and obligations of states to act with due diligence, while also
highlighting the role of the United Nations in the efforts to eliminate VAW. It
also constitutes a more explicit statement on the issue and forms the basis for
numerous subsequent resolutions. In the preamble to the Declaration, the
General Assembly recognises that the root causes of VAW are patriarchy and
women’s subordination. It also highlights that VAW is a manifestation of the
historically unequal power relations between women and men, which have led to
men dominating and discriminating against women and preventing their full
advancement.
As older human rights instruments, CEDAW and DEVAW reflect a legal
gap in the availability of normative instruments to comprehensively address
VAW as a specific human rights violation, including newer forms of violence
(e.g. cyber-crime and online abuse). Although CEDAW provides a poten-
tially transformative foundation for gender equality, this treaty is associated
with many challenges. Apart from article 6, that calls on states to take all
appropriate measures to suppress all forms of trafficking in women and

exploitation of the prostitution of women, there are no specific provisions
within the treaty requiring states to respond to and eradicate all forms of
VAW. There is a huge gap in the legal protection available for women and
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4 Aisha K. Gill
girls who are subjected to a variety of manifestations of violence. Further-
more, the numerous reservations to CEDAW reflect a further challenge to
the effective realisation of the human rights of women and girls. DEVAW is
more than 20 years old now, so it is surprising that it has not been
transformed into a convention. In Chapter 1, Jones discusses the possible
reasons for this oversight and provides an overview of some of the main
arguments in favour of filling the currently existing normative gap in inter-
national law resulting from there being no specific instrument dealing with
the elimination of VAW at the UN level. She persuasively makes the case for
using international human rights law, despite critiques of this area, in order
to call for such an instrument.
A new instrument would need a monitoring body of its own that specifically
recognises, identifies and provides legally binding obligations to deal with all
manifestations of VAW. A new international legal instrument negotiated in the
21st century – for the 21st century – would effectively fill the current legal gap.
This instrument could provide the basis for renewed efforts to hold states to
account for failing to maintain the safety of their female citizens. It could also be
utilised by activists and victims to ensure that states fulfil their positive obligations
of protection, prevention and investigation, along with the provision of effective
remedies, including reparation.
A new Treaty or Optional Protocol would not make the case for abolition of
any other treaty or protocol, be it regional or otherwise. Indeed, both Jones in
Chapter 1 and Richards and Haglund in Chapter 2 argue that valuable lessons
could be drawn from the jurisprudence of the regional courts and commissions.
Nevertheless, it must be acknowledged that a case-by-case approach in different
national and regional systems fails to address VAW as a widespread, systemic
problem of global concern. In particular, Richards and Haglund offer a concep-
tual and empirical examination of the consequences of the normative gap in
international law to address the issue. There is a normative gap between the
standard of dignity that states have declared they wish for women and girls and
the rules by which these same states are willing to be legally bound to achieve
that goal: a gap between rhetoric and reality. Using data from over 170 countries
to demonstrate its consequences in domestic laws, Richards and Haglund address
why the normative gap relating to gender violence is of particular concern. In
their research, Richards and Haglund found that the domestic normative gap is
complicit in higher levels of domestic violence, rape prevalence and female HIV
rates, along with lower human development and greater acceptance of VAW. The
chapter strongly points towards our conclusion that the persistence of this
normative gap is a threat to women’s human right to live a life free from violence
or obtain justice if victimised.
While highlighting the normative gap at the international level, the chapters of
this book also provide an analysis of the specifics of the three regional human
rights treaties addressing VAW, namely the 1994 Inter-American Convention on
the Prevention, Punishment and Eradication of Violence against Women (Con-
vention of Belém do Pará), the 2003 Protocol to the African Charter on Human
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Introduction 5
and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol) and
the 2014 Council of Europe Convention on preventing and combatting violence
against women and domestic violence (Istanbul Convention). Many of the
chapters critically analyse the United Nations system, and address the African,
European and Inter-American systems and the current gap in Asia. These
chapters (Manjoo, Orago and Nassali, Jones and Bettinger-López) highlight the
advantages and disadvantages associated with the currently available legal instru-
ments, along with the work of the monitoring systems and their resultant
findings and jurisprudence. The absence of specific regional instruments in other
regions of the world (e.g. Asia, the Pacific and the Middle East), underscores the
need for a universal, legally binding instrument on VAW at the United Nations
level.
This collection argues skilfully that while regional instruments are being
utilised successfully in certain countries, such instruments are unsuitable for
worldwide application. Its in-depth analysis of the UN and regional systems
serves as a reflection on the lessons learnt and will help to inform the options
regarding the aforementioned closing of the normative gap in international
human rights law. For example, Chapter 5 critically examines the provisions of
the Council of Europe Convention on Preventing and Combating Violence
against Women and Domestic Violence (the Istanbul Convention) and the case
law of the European Court of Human Rights (ECtHR) as it relates to VAW and
domestic violence and the well-developed positive obligations on the State. Here,
Jones draws upon her experience of working at the UN and European levels to
examine the key provisions of the Istanbul Convention and their importance for
Europe alongside critically analysing some of its shortcomings, concluding that,
as progressive as its content might be, it is unsuitable at global level. In Chapter 6,
Bettinger-López argues that to be effective, a universal VAW treaty would need
to address the nuances of VAW and focus on state responsibility, as the Belém do
Pará Convention does. A universal treaty should further be designed to comple-
ment this Convention, along with other regional initiatives. Crucially, this new
treaty should include a monitoring or compliance mechanism that can receive
and evaluate complaints.
International law is a worthwhile project for feminists which, despite its short-
comings, provides a very useful alternative narrative for civil society to engage
with. Feminist scholarship has drawn attention to the relationship between
individual violations of women’s human rights and human rights abuse patterns.
By using the language of citizenship rights in her contribution to global violence
against women debates, Rashida Manjoo, the former UN Special Rapporteur on
Violence against Women, its Causes and Consequences, has increased our under-
standing. Going beyond a focus on women’s rights as human rights, this lens
demonstrates a need to situate responses to gendered violence in relation to all
rights, starting with citizenship. The requirement to further develop profound,

diverse feminist engagement in order to push for ongoing structural change
(Yuval-Davis, 2010) becomes increasingly important as we witness a period in
which issues of gendered violence are mobilised by international actors who are
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6 Aisha K. Gill
outside – and sometimes against – feminist agendas (Gill, Heathcote and Wil-
liams, 2016).
Addressing another important issue, Manjoo sets out in Chapter 3 concerns
about the lack of a legally binding international definition of VAW and any
subsequent enumerated obligations of the state in respect of it. She also under-
lines the urgent need for a responsive and nuanced discussion on the normative
gap in international law, arguing that the current CEDAW monitoring system is
overstretched and does not have the capacity to deal effectively with such a large
area of law. She lays out a convincing and plausible case for a stand-alone treaty
or an optional protocol to CEDAW to address VAW as a human rights violation
in and of itself.
In Chapter 4, Orago and Nassali offer a comprehensive analysis of the content
of the hard and soft law mechanisms within the African human rights system that
is intended to protect women from violence. Despite their existence, however,
the reality remains that women face continuing violence in both the public and
private spheres. Orago and Nassali therefore critically examine not only the work
of the institutions created under the normative legal framework, and delve into
the practices and jurisprudence of these institutions regarding the protection of
women from violence, but also explore the challenges in this task in relation to
the African human rights context.
All of this book’s contributors suggest that women would be well served by an
explicit treaty addressing gender violence. The fact that single-issue treaties such
as the Convention Against Torture (1984) have built on earlier omnibus treaties
(e.g. the International Covenant on Civil and Political Rights (1966)), provides
us with a firm precedent indicating that the creation of a binding international
treaty explicitly addressing VAW would offer a logical way forward in the current
situation.
At a time when many governments around the world are retreating from their
obligations and commitments to the promotion and protection of women’s
human rights, law and policymakers must recognise and address the underlying
causes of gendered violence and deal with their symptoms. Internationally,
addressing individual, institutional and structural causes and consequences of
gendered violence, requires a fundamental shift in the responses required in
laws, policies and programmes geared towards combatting gender-based vio-
lence and abuse. Such programmes are often financially supported by govern-
ments from the global North through international development funds; yet
these same governments are not explicit about addressing similar abuses domes-
tically. If we are to move towards a strategy of eradicating VAW, the structural
inequalities which perpetuate it must be addressed alongside the strengthening
of any relevant normative frameworks for the promotion and protection of
human rights. Moreover, wider solutions are necessary, including greater access
to safe crisis accommodation, long-term housing and support services, specialist

counselling and therapy, education, and training and employment opportu-
nities, as well as fairer immigration and welfare systems (Gill, Heathcote and
Williams, 2016).
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Introduction 7
The editors of this important collection set out a cogent case that international
human rights law offers women the opportunity to live dignified lives as fully
autonomous human beings. This possibility can, however, only be realised if the
law is responsive and substantive in the first place and framed in such way that it
is inclusive, transformative, accessible, accountable and specific to the actual lives
of women and girls. This book represents the first collective endeavour to draw
attention to the gaping hole in policy and law that could be filled with a new
Convention or Optional Protocol. It is vital that such an instrument is fit not
only for this century, but also for future ones, and that it is responsive to the
needs of women regardless of their geography or social status. Violence against
women and girls is acknowledged as the most prevalent human rights violation in
the world today. If the UN aspires to remain relevant and current, rather than
outdated and obsolete, it must now make the elimination of the misery caused by
the unchecked abuse of women and girls worldwide its next most pressing
international human rights law-making project.
Bibliography
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Channa, S. (2013) Gender in South Asia, Cambridge: Cambridge University Press.
Collins, P. (2000) Black Feminist Thought: Knowledge, Consciousness, and the Politics of
Empowerment, New York: Routledge.
Conaghan, J. (2009) ‘Intersectionality and the feminist project in law’, in Grabham,
E., Cooper, D., Krishnadas, J. and Herman, D. (Eds) Intersectionality and Beyond: Law,
Power and the Politics of Location, Oxon: Routledge-Cavendish.
Dworkin, A. (1979) Pornography: Men Possessing Women, London: Women’s Press.
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and Supik, L. (Eds) Framing Intersectionality: Debates on a Multi-Faceted Concept in
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of Prejudice, 44(3):261–280.
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1 The Importance of International
Law and Institutions
Jackie Jones
1.1 Why international law?

The concept of law is an important one that serves as an effective tool to enable
individuals to enforce their rights and for nation States to be held accountable for
their actions/inactions. At the 35th session of the Human Rights Council in
2017 the Working group on the issue of discrimination against women in law
and in practice reiterated the truism that
17. The law is an essential mechanism for women’s enjoyment of human

rights. Law is both informed by and the creator of norms in society. Laws
determine the values and operating principles by which actions and beha-
viours are deemed acceptable, or criminalized and stigmatized, and can have
an enabling or chilling effect on women’s human rights.
(A/HRC/35/29)
Laws are a reflection of what society and nations believe to be important enough
to protect or guard against. The values reflected back from law set the tone for
the way people are permitted to and in fact live their lives. Women’s lives (in
particular women’s bodies) have been over-regulated by discriminatory laws that
appear on their face to be gender-neutral, but are in fact gender-focussed (male).
It is therefore equally true that laws can and do curtail the enjoyment of women’s
human rights. Yet without normative instruments there are no effective and
lawful ways to hold the State and private actors to account for their discrimina-
tory actions. Despite their weaknesses, the rule of law and the system of justice
therefore provide the fora in which women can, and do, articulate the harm
perpetrated against them and are able to seek redress for that harm.
Over the years, there has been much debate and critique about whether both
human rights discourse and international human rights law, despite their short-
comings in relation to women’s lives, could still be utilised to positively transform
the agenda on ending violence against women. As Charlesworth has pointed out,
‘many have argued, for example, that civil and political rights are manipulable,
individualistic, and unlikely to respond to the more general structural disadvan-
tages that women face’ (Charlesworth, 1998: 795; see also Dembour, 2014, and
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10 Jackie Jones
more generally Kennedy, 2002). This allegation can equally be made against
human rights laws more generally, as they are interdependent and indivisible (see
van Boven, 2014: 147–50).
In our view, however, there are substantial advantages to using human rights
discourse and international human rights law that outweigh the disadvantages of
staying outside the systems that we currently have. For instance, human rights
discourse is still the ‘dominant progressive moral philosophy operating at the
global level’ (Charlesworth, 1998). Anne Marie Clark has argued that treaty
ratification and the acceptance by States that treaties are legally binding are the
State’s ways of signifying its commitment to human rights (Clark, 2013: 127).
International law and human rights norms are the means by which nation states
are held to account by other nation states and individuals for the harms they
cause. These obligations are binding, through their adoption and ratification by
the community of nations and transposition into the domestic legal systems.
Once adopted, the standards and values of international law can be (and are)
utilised in domestic settings in order to set a minimum bar for women’s rights.
Feminists generally agree that international law is needed as a weapon against
systemic oppression (Tully, 1988, quoted in Tang and Cheung, 2003: 17;
Boerefijin, 2008: 187–9). That oppression is not only directed towards women,
but also includes other subjects of law (certain categories of men and children)
that have been and continue to be oppressed. Radhika Coomaraswamy has traced
what she regards as the significant ways women’s and children’s rights have
altered the substance and the procedure of international law. These include: ‘the
process of creating international law and its relationship to state practice’;
‘piercing the veil of state sovereignty’; ‘rethinking on how to deal with non-
state actors within the framework of international law’; and the role of NGOs
representing women’s and children’s issues playing a key role in recognition of
civil society at international negotiations. (Coomaraswamy, 2015: 5). As she
rightly judges, there is a place for human rights at international level that can
provide an alternative narrative, in other words, a meaningful, purposeful and
worthwhile project of law to assist women and girls. Making the case for laws that
are fit for this purpose is the aim of the book. Thus a ‘practical critique’ of
international human rights law accepts the need for such laws but requires
changes to make them fit for purpose (Dembour, 2014: 54). In other words,
we are asking for human rights law to be adapted and promulgated in order to fill
the obvious gap in normative instruments to effectively deal with violence against
women and to fulfil the call of the Secretary-General, who in 2006 wrote that ‘[s]
tates have an obligation to protect women from violence, to hold perpetrators
accountable and to provide justice and remedies to victims’ (UN Secretary-
General, 2006: 46–7). Guided by the Beijing Platform for Action, CEDAW, as
well as many other international norm-setting instruments that address systemic
patriarchal institutions, cultures and private wrongs, women’s lives can be posi-
tively transformed in any and all areas of life. The standard-setting and recogni-
tion of wrongs are therefore important for women because they provide the
mechanisms for enforcement of these rights and standards in the domestic
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International Law and Institutions 11
sphere. Even where the international standards have not yet been met by an
individual country, the fact that a norm exists provides the opportunity of
enforcement which would not otherwise be possible. International law therefore
can, and does, play an important role in driving forward transformative positive
change for women and girls across the globe.
Over time, international human rights law has and still is progressively
becoming more gendered and inclusive of the lives women lead. It is slowly
addressing the actions of non-state actors in non-conflict situations and the role
States must play in holding them to account in the domestic and international
legal systems for acts perpetrated in the public as well as the private sphere
through, inter alia, the use of the ‘due diligence’ standard. Women are
becoming the subject of international human rights law. In this respect, there-
fore, we are of the view that international human rights law can and does have
transformative potential that feminists can utilise in order to positively trans-
form the lives of women and girls around the globe. The book therefore
supports the use of international human rights law in order to effect positive
transformative change, as reflected in the arguments in this chapter. It requires,
however, to be representative of all women and girls’ lives, leaving no one
behind. This is a challenge yet achievable within a gender-specific Treaty or
Optional Protocol, but not with soft law instruments alone and through the use
of a comparator of a certain type of man. The gap in hard law at international
level perpetuates the exclusion of certain women and girls from international
protection and prevents them from enjoying the full range of human rights –
this needs to end.
Additionally, international and regional human rights laws are essential to the
start of a process to eliminate violence against women and girls. They have the
potential to inform, educate and influence the shaping of laws at the national level,
and in many cases, they have been instrumental in progressive changes. However,
in many contexts, there exists a normative gap in domestic legal codes in addres-
sing violence against women and girls. This is akin to the international normative
gap, where states do not provide explicit legal guarantees against gender-based
violence but, rather, offer other existing laws that might be used to provide some
recourse to victims. An example would be a State that does not have a domestic
violence law, but has a general assault law that can be used by all victims. The lack
of specificity in acknowledging the differential manifestations, causes and conse-
quences of gendered violence, is an indication of the failure of the State to address
a crime that disproportionately impacts women and girls in the twenty-first
century, and thus requires a different response. This gap also indicates the failure
of the State in its responsibility to act with due diligence in addressing widespread
and systemic violations of women’s and girls’ human rights.
In the context of calls to address the normative gap in international law,
ensuring that a legally binding international norm on eliminating violence

against women and girls exists, in one document, and is enforced, is a key
indicator of the commitment of the international community of nations as
regards eliminating it.
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12 Jackie Jones
1.2 The exclusion of women from international law
and institutions
The ‘herstory’ of the United Nations, its institutions and laws has been one of
exclusion. From the personnel it employs, the systems it operates, the programmes it
supports, to the laws it upholds: men are the role models for whom the system was
developed. The predominant focus for the UN system, institutions and the use of
monetary resources, has been on international peace and security between nation
states, primarily dealing with situations of armed conflict and its aftermath, including
managing humanitarian crises. International human rights law is a smaller part of the
UN’s work and has applied to actions taking place in the public sphere, traditionally
only intervening in situations where the state has directly violated law as against an
individual or group. Acts between private individuals or by non-state actors against
individuals have traditionally been excluded, remaining within the purview of
domestic action. Catastrophically for women, the exclusions ignore the way women
live their lives (mainly in the private sphere) and fail to cover the vast majority of the
violence they experience, including the most prevalent forms: domestic abuse and
partner murders. Much systemic violence has not been included in the definition of
human rights, and where it has, it is not legally binding (‘hard law’), reflecting the
exclusion of half the human race. There continues to be a gendered reading of
human rights and states’ obligations vis-à-vis their citizens and a failure on the part of
the principal human rights bodies and procedures to address these issues. Holding
states to account for human rights violations that directly impact on the way women
live their lives has thus been challenging.
There is a large body of literature commenting on the international legal system,
human rights and the UN process from a feminist perspective, corroborating this
exclusion (see generally Charlesworth et al, 1991; Cook, 1994). The literature
confirms that the subject of international law, including international human rights
law, is the ‘the so-called Enlightenment personality – a man, endowed with reason,
unfettered and equal to other men’ (Coomaraswamy, 1997: 1250), supported by
‘the Western, liberal, and individualistic underpinnings of human rights law’ that
all contribute to its male bias (Oloka-Onyango and Tamale, 1995). It excludes
women and certainly pays no attention to the intersectional identity of women (see
Radacic, 2007; Otto, 2005), with feminists from the South particularly critical of
the Western framework of human rights law. Where it has regulated the lives of
women, it has done so to dis-empower women, not constructing them as rights-
bearers, simply as subjects to be protected. This protectionist attitude can be seen
in a variety of ‘early’ conventions, including the various normative instruments on
human trafficking (for example, the International Agreement for the Suppression
of the White Slave Traffic (1904) and the International Convention for the
Suppression of the Traffic in Women and Children (1921)).
The UN Charter and the UN Declaration of Human Rights were adopted in the
1940s. They both include what was perceived as the most prevalent human rights
violations that required protection and guarantee after World War II. They did affirm
the right to equality before the law without discrimination on the basis of sex. The
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Charter of the United Nations includes as one of its purposes to protect and promote
‘human rights for all without distinction as to. . .sex.’ The Universal Declaration of
Human Rights provides that ‘all are equal before the law’ and that everyone is entitled
to all rights and freedoms ‘without distinction of any kind,’ including sex as a source
for distinction (Article 2). Women are included. But this only describes one type of
woman, one that fits within the ‘ideal’ woman category. The Universal Declaration
acknowledges women in contrast to men and protects women in their roles as wives
and mothers as part of the (heteronormative) family, not as independent autonomous
individuals (rights bearers). Despite the fact that the principle of non-discrimination on
the basis of sex (defined and applied in comparison to men) is included in four
international human rights treaties (the International Covenant on Economic, Social
and Cultural Rights, the International Covenant on Civil and Political Rights, the
Convention on the Elimination of All Forms of Discrimination against Women, and
the Convention on the Rights of the Child), while the Convention against Torture
and other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) and
the International Convention on the Elimination of all Forms of Racial Discrimination
(UNCERD) do not include this principle. This is despite the UNCAT being nego-
tiated and adopted at a time when gender equality was within the consciousness of
decision-makers (in the 1980s) and often utilised by women in cases (see below). Even
in the specific Convention dealing exclusively with women (CEDAW), as has been
pointed out by Hilary Charlesworth and others, the ideas of equality and non-
discrimination are very limited, promising equality on male-defined terms only. The
Convention requires that a woman be treated in the same way as a similarly situated
man. In addition, the Convention does not recognise the effects of structural dis-
crimination against women (Charlesworth et al, 1991: 613). It is evident therefore
that for most, if not all, Conventions, the base-line rights are male-centred (MacK-
innon, 1987: 42–3). This has had a detrimental effect on the ability of women to assert
their basic human rights. Indeed, the descriptors ‘human rights of women’ and
‘women’s rights as human rights’ are a fairly recent phenomenon.
The United Nations (finally) explicitly recognised women’s right and violence
against women as human rights issues at the World Conference on Human
Rights, held in Vienna in 1993. Article 2 of the Vienna Declaration acknowl-
edged that gender-specific violations of human rights were part of the human
rights agenda. In addition, Article 18 of the Vienna Declaration and Programme
of Action states:
The human rights of women and of the girl-child are an inalienable, integral
and indivisible part of universal human rights. The full and equal participa-
tion of women in political, civil, economic, social and cultural life, at the
national, regional and international levels, and the eradication of all forms of
discrimination on grounds of sex are priority objectives of the international
community . . . The human rights of women should form an integral part of

the United Nations human rights activities, including the promotion of all
human rights instruments relating to women.
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14 Jackie Jones
Over time then, there has been a shift from protectionism to rights-bearer status
for women (i.e. the subject of international law). However, this process is
incomplete, leaving a major gap in human rights protection at international
level. Filling the normative gap on eliminating gender-based violence, which is

widely acknowledged as the most pervasive human rights violation in the world
today, would certainly be a major step forward.
Coupled with the reality of women lacking rights-bearer status is the fact that
there is still a serious lack of women’s representation within the UN system itself (see
for example Charlesworth, 1995) and taking women’s human rights seriously in
practice. This is reflected in the 2010 proposal to amalgamate all four organisations
that dealt with specific women’s issues (Division for the Advancement of Women
(DAW), International Research and Training Institute for the Advancement of
Women (INSTRAW), Office of the Special Adviser on Gender Issues and Advance-
ment of Women (OSAGI), United Nations Development Fund for Women
(UNIFEM)). No new organ or institution of the UN was created, rather ‘an entity’
called United Nations Entity for Gender Equality and the Empowerment of Women
(UN Women) was set up. What message did this send out to the women in the
world? Additionally, there is a clear lack of women’s representation in higher
positions in the UN itself. For example, the failed 2016 campaign by feminists and
civil society organisations to have a woman elected as the next Secretary General of
the UN is just one reflection of the many examples that exist in underscoring the
resistance to appointing women in senior leadership positions.
Gender parity in international institutions has become a rallying call for several
campaigns around the globe. GQUAL (supported by many eminent international
figures, including, Michelle Bachelet, Juan Mendez, Christine Chinkin, Rebecca
Cook to name a few) is one such campaign that in 2015 reported on the number
of women currently in positions in the leading international and regional tribu-
nals, bodies and special procedures. The picture is pretty grim, with a few
exceptions. Of the regional courts (e.g., Central American Court, ECOWAS
Community Court) women only make up 17.7 per cent of members of the
court. More recently established courts, which should in theory be more aware of
the need for gender parity, do not reflect the best represented courts. In fact, the
very oldest, the Central American Court, founded in 1907, has the highest
percentage of women members (33 per cent). Regional human rights courts
have a better record, averaging 34 per cent representation of women. Surpris-
ingly, the Inter-American Court only has 14 per cent, with the European Court
of Human Rights at 34 per cent, and the African Court of Human and Peoples’
Rights with the highest percentage of women members (45.5 per cent). Inter-
estingly, according to the report, women fare much better in international
commissions, with 58 per cent of members. A mixed picture emerges for the
percentage of women members of UN Committees: of all committees, the
percentage in 2015 was 44 per cent, with variations dependent on the subject
matter of the committee. As one would expect, the CEDAW Committee had the
most (96 per cent), followed by the Committee on the Rights of the Child (50
per cent). However, at the other end of the spectrum are the Committee on the
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Rights of Persons with Disabilities (6 per cent), closely followed by the Commit-
tee on Enforced Disappearances (10 per cent). There is therefore a wide disparity
of membership between committees, which requires urgent attention. In addi-
tion, according to the report, only 39 per cent of special procedure mandate
holders (individual mandates) were female. Interestingly, the report also detailed
the historical total of all mandate holders – 31.6 per cent over the entire history
of mandates (www.gqualcampaign.org/1626-2/). It is evident that women’s
issues are not prioritised by State parties to the UN and the situation is so dire
that in 2017 the Secretary General once again reiterated his commitment to the
principle of equal representation. This is another gap that requires filling and
speaks to the continued lack of commitment for a normative instrument specifi-
cally dealing with violence against women and girls as well as the continued
silencing on this subject, within the UN system.
1.3 The use of international law instruments to end violence

Traditionally human rights instruments have focussed on the public sphere, for
instance, violations by the state against individuals’ rights and freedoms (for exam-
ple, arbitrary detention and slavery). They have been less able to deal with private
wrongs, especially violence in the home. It is commonly acknowledged that some
(arguably many) violations were not included, most notably for present purposes,
violence specifically targeted at women because they are women. Such issues as
domestic abuse, sexual harassment, rape and crimes in the name of so-called
‘honour’ were not articulated at all in any of the early human rights instruments.
This has proved very problematic. The Universal Declaration of Human Rights, the
International Covenant on Civil and Political Rights (ICCPR), and the International
Covenant on Economic, Social and Cultural Rights (ICESCR) contain non-gender
specific rights, and a guarantee to equal enjoyment of these rights, but none directly
address violence against women. They do provide generic articles of protection, such
as, right to life (Article 6 ICCPR and Article 3 UDHR), the right to security of
person (Article 9(1) ICCPR and Article 3 UDHR), the prohibitions against torture
or cruel, inhuman or degrading treatment or punishment (Article 7 ICCPR and
Article 5 UDHR) and slavery (Article 8 ICCPR and Article 4 UDHR). This also
applies to the Convention against Torture, and other Cruel, Inhuman or Degrading
Treatment (UNCAT) (see generally Nowak and McArthur, 2008; Simmons, 2009).
However, issues seen as universal to both men and women (like torture) in practice
reflected the experience of men – for example typically the soldier who was being
held in order to provide information during conflict. As Catherine MacKinnon has
argued, the definition of torture does not include, or even ignores, the extreme use
of violence to control and threaten women in the home that would amount to
torture if it were perpetrated in a prison setting (MacKinnon, 2006: 21). Reading
into the definition of torture women’s lived experiences has been and continues to
be a very challenging endeavour (especially as there are few decided cases) and
represents an example of the effect and consequence of the normative gap in
international human rights law.
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16 Jackie Jones
Whilst the ‘due diligence’ obligation does help to make more visible the States’
obligations vis-à-vis women, the State obligation is to protect women within a
non-discriminatory framework. In order to do so, actions by non-state actors
must be included in the state’s obligations and responses must be gendered. In

other words, the State is obligated to exercise ‘due diligence’ in order to prevent,
investigate, punish (Velasquez Rodriguez v. Honduras, Inter-American Court of
Human Rights; Anderson, 2008: 184–5) and provide reparations for any viola-
tions of the rights contained in the normative instruments. The widespread
acceptance of this principle has aided women in becoming the subject of inter-
national human rights laws and standards. The challenge currently is that many
States ignore this obligation, allowing a climate of impunity to flourish, and of
course the lack of a normative instrument that is able to address the specificity of
the violence suffered by women and girls. Focussing on these violations is not to
ignore or minimise the violations against men (they are the focus of the existing
normative instruments), it is merely to recognise and respond to the particular
violations as they manifest for women and girls.
1.4 Human rights treaties making a transformative difference

for women
In 2001 Oona Hathaway asked the question as to whether human rights treaties
make a difference. Her answer was equivocal – sometimes for better and sometimes
for worse (Hathaway, 2002). This being said, there are a number of leading
academics who have written about the positive effects of human rights, including
on women’s lives. Beth Simmons’ book Mobilizing for Human Rights put paid to
the theory that sometimes, human rights treaties make no difference. Simmons’
book persuasively argues that human rights instruments such as CEDAW, UNCAT
and the UNCRC do make a positive difference (Simmons, 2009).
In addition, there are at least two ways in which the case can be made that human
rights can positively affect domestic law. Often spurred on and refined at interna-
tional or regional level – local, regional, national and international legal initiatives are
symbiotic. Each is influenced by the other. Byrne and Freeman have argued that
a number of studies support the assumption of the human rights community

that the process of formulating and ratifying a treaty, and advocacy and
monitoring of State performance drawing on human rights frameworks, can
contribute to changes in law, policy and practice at the national level (or the
form that such change takes).
(Byrne and Freeman, 2011: 4)
This is not an argument to be overlooked. The fight for women’s equal rights has
always been a struggle. Mostly, there have been modest, incremental gains as well as
push-back and backlash. The ability to draw on international or regional standards to
support domestic campaigns for women’s rights has always been important. Secondly,
there is a significant body of evidence that once there is a question of ratification of an
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international treaty, the national agenda becomes focussed on compliance of domestic
laws with the new international standards. That is good for rights bearers. A recent
example in the ending violence against women sphere is the UK’s constitutional
settlement (it is a dualist country) and its ratification of the Istanbul Convention. The
UK signed the Convention in June 2012 but has not yet ratified it, despite noises to
the contrary. However, that has not stopped the devolved administrations (regional
domestic governments) from preparing for compliance. Provisions from the Istanbul
Convention have been written into the delivery plans and policies of the domestic laws
on violence in Wales. Those laws, in turn, were directly influenced by international
law, in particular the CEDAW. The domestic Violence against Women, Domestic
Abuse and Sexual Violence (Wales) Act 2015 has thereby become the gateway for
compliance with regional and international law instruments (the Istanbul Convention
as well as CEDAW) and serves as an effective tool for civil society organisations in
Wales to utilise in order to push for positive change. All of this has been accomplished
because NGOs with requisite expertise and government civil servants are working
together to ensure effective compliance. A similar pattern is evident in several
European states prior to ratification. Indeed, this is a common feature of international
law compliance in domestic settings. Thus, much of the compliance with international
standards is actually ‘hidden’ and may not be easily identifiable, yet it still occurs. It has
a positive transformative effect that would be impossible without the international
norm in the first place. Therefore, filling the normative gap at international level,
through specific legislation on eliminating violence against women and girls, is an
important first goal in order to effect change at local level.
1.5 Gendering the UN systems: treaty body general

comments/recommendations and case law
Gallagher has pointed out that a ‘very high number of general comments –
including those relating to torture, bodily integrity, the right to life, and freedom
of thought, conscience, and religion-are totally gender neutral’ (Gallagher, 1997:
299). These General Comments/Recommendations are not confined to a particu-
lar decade that was less cognisant of gender issues. However, a shift has occurred,
largely due to affirmative action, the advocacy by civil society and a growing, albeit
slow, political will to change. There have been a number of gender-sensitive
General Comments and of course General Recommendations of the CEDAW
Committee. These have been more prevalent since the UN’s gender mainstream-
ing agenda, with a particular flurry of activities around 2000. For instance, the
Human Rights Committee’s General Comment 28 on equal rights of men and
women (2000), the CERD Committee General Comment 25 on gender aspects of
discrimination (2000), the CESCR General Comment 16 on the equal right of
men and women to the enjoyment of all economic, social and cultural rights
(2005). In terms of the outputs from the CEDAW Committee, it has acknowl-
edged intersectionality in certain areas, including, General Recommendation 26 on
women migrant workers, General Recommendation 27 on older women and
General Recommendation 28 on the basis of factors that affect women such as
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race, ethnicity, religion or belief, health, status, age, in particular adolescent girls,
class, caste, sexual orientation and gender identity. Additionally, the Concluding
Observations of the CEDAW Committee country reports (alongside the UPRs)
have included failures in States’ duties in relation to violence against women, less
so against girls. There have equally been more gender-sensitive decisions under the
individual complaints mechanism, for example, NL v Peru (2005). Doubtless, the
CEDAW has been re-interpreted as a ‘living instrument’ and has had violence
against women read into it (Simonovic, 2017). But this has had a limited effect as
outlined in this chapter and also Chapter 3, and to quote Dianne Otto ‘it is
difficult for these efforts [she mentions several others] to completely overcome the
limitations in the CEDAW text without supporting interpretations from other
human rights bodies and good faith implementation by states parties’ (Otto,
2010: 324; see also Chapter 2 in this book).
1.5.1 Case law

Attesting to the ineffectiveness of the current human rights regime for women
and girls is the fact that only a small number of cases are brought to the human
rights treaty monitoring committees that deal specifically with women’s and girls’
human rights violations. A search of the UN case law database reveals approxi-
mately 33 cases that intersect ‘CEDAW’ with the key words ‘woman’ or
‘women.’ Including all the treaties in the search, only 135 include the word
‘women’, even fewer include ‘women and girls.’ Many, of course, deal with de
jure discrimination based on sex, where the woman’s situation is compared to
that of a man. However, more than half of the complaints concern violent
behaviour: torture and cruel, inhuman or degrading treatment or punishment
by both the State and non-State actors. From forced sterilisation, domestic
torture, lack of investigation into complaints, to lack of fair trial, no country
remains untouched. A search for ‘domestic violence’ reveals 270 entries for all
treaties, with only 24 under CEDAW, but more than 100 entries each for the
UNCAT and the CCPR, clearly demonstrating the inability of the CEDAW to
adequately and effectively deal with domestic abuse cases despite some highly
publicised and important cases, such as AT v Hungary, Yildrim v Austria, and
VK v Bulgaria, to name a few. CEDAW has a more problematic record
concerning recognising intersectionality (for example, Nguyen v The Netherlands,
Goekce v Austria and Yildrim v Austria). The treaty simply is not specific
enough. Such a low number of gender-specific claims brought under CEDAW
(or that can be brought because of admissibility reasons) is scandalous and clearly
demonstrates that women do not or cannot utilise the current treaty complaint
system effectively because it does not meet their needs. No doubt there are
several reasons for this, including the lack of a specific instrument that deals with
the numerous manifestations of violence perpetrated against women and girls. In

addition, when dealing with violent behaviour it is inappropriate to call for a
comparator to be utilised before protection is provided. Men react differently to
violence than do women. The lack of contextualisation is problematic in a system
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without a specific instrument because it appears to refuse to acknowledge the
need for different treatment to react to the position women and girls find
themselves in, regardless of geography. It is a gap that requires action, if the
UN systems are to remain relevant and useful for all generations.

The translation of soft law instruments by the UN Member States into a
specific binding normative instrument, would fill a major gap in the full enjoy-
ment of all human rights of women.
1.6 Ending violence against women as customary international

law
Partly as a result of global discussions concerning a new Treaty and the need to update
General Recommendation 19, the CEDAW Committee passed General Recommen-
dation 35 in 2017. Paragraph 2 claims that ‘the opinio juris and State practice suggest
that the prohibition of gender-based violence against women has evolved into a
principle of customary international law.’ It provides a long list of instruments, policies
and practices to justify this position in the footnote, including the regional and
international treaties, the Vienna Declaration, the Beijing Declaration and Platform
for Action, the Agreed Conclusions, resolutions of the Human Rights Council, the
judgments in Opuz v Turkey and Gonzalez v Mexico. However, the Recommendation
merely states that the evidence ‘suggests’ that it is customary international law.
What constitutes customary international law continues to be one of the most
contested areas of law. Article 38(b) of the Statutes of the International Court
of Justice acknowledges ‘international custom, as evidence of a general practice
accepted as law.’ Writing in 1989, Christine Chinkin has rightly reiterated that
‘State practice is evidenced by what States do, as well as by what they say’ and
has cautioned that ‘they are either assertions that the soft form has hardened
into legal norms or they amount to an assertion that the very sources of
international law have undergone change. Any claim in the former category
requires careful analysis to determine whether it does indeed represent the
actual commitments of States (i.e. constitutes customary international law). A
claim in the second category is much more controversial because it amounts to
an assertion of a ‘revolutionary change in the structure of the system itself’
(Chinkin, 1989: 856–7). In addition, writing in 2014 about customary inter-
national law, Chinkin does not definitively include violence against women in
this list (Chinkin, 2014: 92–3). As Beth Simmons has argued, the norms in the
women’s rights treaties ‘work against accepted domestic norms . . . it is hard to
imagine customary international law doing the work that I have attributed to
treaty ratification itself.’ (Simmons, 2009: 363). None of this is persuasive
enough to support an assertion that ‘the opinio juris and State practice suggest
that the prohibition of gender-based violence against women has evolved into a
principle of customary international law’ and thus that a new Treaty or

Optional Protocol is not required or desirable.
Even if one were to agree with General Recommendation 35 that violence
against women had obtained the status of customary international law, there are
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still major drawbacks for relying solely on this status, rather than on a Treaty or
Optional Protocol. Customary international law does not have the same appeal to
rally around at the domestic and local levels for NGOs and civil society actors as
well as public authorities, as does a Convention or Optional Protocol. It equally

would not garner the same level of financial support by nation States in order to
be an effective tool for positive transformative change. Treaty language is precise,
concise and transferrable to domestic court settings, much more than the
contestations of a possible rule of customary international law.
More than these very practical difficulties, one very significant shortcoming is
the fact that there is no monitoring body attached to a rule of customary
international law that could or would safeguard compliance by States (whether
through inquiries or recommendations, etc.) (Simmons, 2009). That failing
alone is significant enough for customary international law to be used as a
secondary tool only, and not the primary reliant one, to end violence against
women. If an Optional Protocol is employed, with the CEDAW Committee, for
example, as the monitoring body, the Committee would require major revision,
including an expansion in its membership, expertise and possibly its focus (away
from non-discrimination to human rights violation). Simply put, the force of
treaties is much greater than customary international law.
States that ratify treaties make a public commitment to at least some level of
accountability. That is not to suggest simply passing a treaty would be a panacea
for the ills perpetrated everyday against women and girls. Quite the contrary, as
this chapter has argued, law is but a beginning. Getting ‘the law’ bit right,
however, as strong and uncontested as possible, is essential. If we had thought
customary international law or General Recommendations or other soft law
instruments were sufficient, there would have been no need to put pen to
paper. Law, whether international, regional or domestic, is not enough. As
Martha Nussbaum has pointed out, international laws concerning women,
change the picture, just by existing and commanding public assent, even if lots of
it is insincere. Now when bad behaviour occurs, it will not be coded as unremark-
able and natural. The baseline of public expression has changed. This widespread
acceptance of a new baseline is, as Kant said, already a form of improvement in
itself. And this is so even should behaviour not change at all in any nation of the
world. Indeed, it is so even should most men harbour in their hearts great doubt
and even resentment concerning the equality to which they pay lip service. Lip
service, in short, is not nothing. What people ratify is not necessarily what they
intend to live by, but it is what they think it prudent to own to publicly, and that,
in turn, is a sign that women’s concerns have won international recognition.
(Nussbaum, 2016: 598)
In addition, we suggest there must be more than mere lip service – account-
ability is the key and a formal treaty is the best possible way we currently have
within law to ensure it.
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1.7 Reservations in international treaties as an obstacle
to accountability
States usually find it easier to agree to a multilateral treaty which allows for reserva-
tions. Indeed, it is a normal practice of negotiations (Schabas, 1996; Cook, 1990);

knowing what the red lines are that States will not cross, but they may nevertheless
sign and ratify a treaty in the knowledge that they have a ‘get out of jail free card’ at
their disposal. Permitting reservations to all but the most essential features of treaties
certainly is a weakness of the treaty system. Although reservations may well be a
common and accepted part of treaty negotiation, it permits State parties to continue
with practices that the treaty was seeking to eradicate and is another space where States
play their power games (Dembour, 2014: 57, see also Clark, 1991).
Treaty reservations have been a major challenge for CEDAW, it being the most
reserved treaty in the UN system, especially concerning the family and women’s role
within it. It certainly has led many NGOs, especially women’s NGOs, to call for a
new UN instrument to eliminate violence against women and girls that does not
permit reservations. The fact that a State has made reservations has been utilised by
NGOs to shame State parties for the number and type of reservation(s) they have
made, thus providing NGOs with a cause to rally around. During the UPR process,
States often use the opportunity to comment on gaps in laws and also in domestic
ratification of treaties, leading States to, sometimes, reverse the reservations. The
system of international law we currently have is one of consent to being bound.
Reservations and the consent principle therefore continue to pose challenges for
accountability of States for their inactions/actions in relation to all human rights
violations, including eliminating violence against women and girls. Despite these
issues, without a Treaty or Optional Protocol and the system of monitoring State
practice, no international or local pressure could be put on States to change.
1.8 The United Nations human rights regime

Evident from its institutions, organs, mechanisms and programmes, the UN
Charter’s primary purpose is to secure peace and security for its State parties.
Promoting human rights and addressing the violations is part of this process. The
principal human rights institution is the Human Rights Council (HRC) and the
many organs attached it. In addition, the UN Security Council and General
Assembly play a key role in women’s human rights.
1.8.1 UN Human Rights Council

The Human Rights Council was established in 2006 by Resolution 60/251,
replacing the Commission on Human Rights (see generally Alston, 2006; Spohr,
2010). Whilst being a subsidiary of the General Assembly, it is one of the most
important intergovernmental bodies of the United Nations as it directly discusses
the human rights situations in Member States, specifically to promote ‘universal
respect for the protection of all human rights and fundamental freedoms for all’,
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to ‘address situations of violations of human rights, including gross and systema-
tic violations, and make recommendations thereon,’ and to ‘enhance the protec-
tion and promotion of all human rights civil, political, economic, social and
cultural rights, including the right to development’, with input from other
stakeholders. Its founding resolution explicitly acknowledges that ‘non-govern-
mental organizations play an important role at the national, regional and inter-
national levels, in the promotion and protection of human rights;’ it equally
establishes that the Council should work ‘in close cooperation in the field of
human rights with Governments, regional organizations, national human rights
institutions and civil society.’ Indeed, there are many side-events at the time the
Human Rights Council meets each year and hundreds of NGOs provide reports,
panels and other information on human rights violations in specific countries
and/or in regions, especially at the time of the universal periodic reporting.
The Council’s 47 members are drawn from the General Assembly, in staggered
three-year terms, with a specified number of seats going to each geographic region
as defined by the UN. Member States should be elected considering ‘the contribu-
tion of candidates to the promotion and protection of human rights’ and ‘mem-
bers elected to the Council shall uphold the highest standards in the promotion
and protection of human rights.’ However, these standards are ‘flexible’, with
States being elected without a significant positive track record on human rights. A
notable part of its work is the Universal Periodic Reporting (UPR) that examines
States’ human rights record (see generally Spohr, 2010; for a critique in relation to
VAW, see Edwards, 2011), including actions to eliminate violence against women.
The reviews should be based on ‘objective and reliable information, of the
fulfilment by each State of its human rights obligations and commitments in a
manner which ensures universality of coverage and equal treatment with respect to
all States’ and should have the full cooperation of the State. This does not always
occur. An equally important aspect is the Shadow Reports NGOs submit before a
State is examined. The Reports often paint a very different picture, especially in
relation to the de facto situation of women and girls.
The Council issues resolutions calling on States to take specific actions or
uphold certain principles, or it may create mechanisms to investigate or monitor
questions of concern. These tasks sit alongside the Council’s power to create or
renew mandates of various ‘Special Procedures’, including the Special Rapporteur
on VAW, its causes and consequences (see below). In addition, the Council
receives complaints alleging patterns of human rights violations. These com-
plaints are monitored and considered by the Working Group on Communica-
tions and may lead to further actions, including recommendations. Decisions of
the Human Rights Council are not legally binding, merely persuasive. Its
decisions/recommendations can and do influence the practice of States and the
international community. They thus form an important part of the pressure the
UN system can bring to bear on individual States or in different regions. It can

equally demonstrate the direction of standard-setting, by not only being negative
in its reviews, but also positive, in terms of highlighting good practices, that can
benefit particularly problematic areas of the world.
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The Human Rights Council, like its forerunner, the Committee on Human
Rights, regularly questions States about their treatment of women, in particular the
laws that have or have not been enacted to protect women from violence. Both
bodies have a long history of passing resolutions in relation to VAW, including

‘private’ violence, the changes (or not) in societal attitudes, including the media,
the number of women in public life, and other issues (a list of resolutions from
2006 to 2010 can be found on the UN Women website: www.un.org/women
watch/daw/vaw/v-hrc.htm#hrc). It has called for an end to VAW (Resolution 7/
24), trafficking (especially women and children; Resolution 32/3 and many more),
female genital mutilation (Resolution 32/21), domestic abuse and torture (2000/
45). Under the general heading ‘Accelerating efforts to eliminate VAW’, the
Human Rights Council has also passed several resolutions outlining measures in
particular spheres, perhaps reflecting a more nuanced approach than in earlier
years, when there was much less activity around VAW within the human rights
system, when it concentrated more on the human rights situations in particular
States (this still takes up a considerable amount of time). Resolutions include
preventing and responding to violence against women and girls, including indi-
genous women and girls (Resolution 32/19), intersectional forms of violence
(Resolution 32/17), VAW as a barrier to women’s political and economic empow-
erment (Resolution 26/15), and remedies for women who have been subjected to
violence (Resolution 20/12). Some of the topics for the resolutions have their
origin in the reports of the Special Rapporteurs.
There is a growing body of resolutions specifically dealing with the plight of
children. For instance, Resolution 16/12 on ‘a holistic approach to the protection
and promotion of the rights of children working and/or living on the street’,
Resolution 19/37 on the rights of the child, Resolution 22/11 ‘the human rights
of children of parents sentenced to the death penalty or executed’, Resolution 22/
32 on the ‘highest attainable standard of health’ for children, Resolution 25/6 on
access to justice for children, Resolution 25/10 on ‘ending violence against
children: a global call to make the invisible visible’, Resolution 31/7 on ‘informa-
tion and communications technologies and child sexual exploitation.’
Unfortunately for women and girls who are subject to VAW, their lives have not
dramatically changed through the adoption of UN resolutions and recommenda-
tions. The direction of travel of the Human Rights Council members, by virtue of
signing up to these measures, may be in the right direction, on paper, but it certainly
has not translated into concrete changes to the lives of those most affected by
VAWG. This requires more political commitment and a distinct international
instrument that addresses the specificity of VAWG in all its manifestations.
1.8.2 United Nations High Commissioner for Human Rights

The Office of the High Commissioner for Human Rights was established by General
Assembly Resolution 48/141 in 1993, following the recommendations of the 1993
World Conference on Human Rights in Vienna. The High Commissioner is given
prime responsibility for all human rights activities of the United Nations and carries
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out the work within the framework of the UN Charter and the Universal Declara-
tion of Human Rights, as well as other international human rights instruments and
international law (for a historical overview see van Boven, 2007; for a general
overview see, Bellal, 2014). The role therefore is to assess all human rights, including
women’s human rights. The work of the High Commissioner’s Office has four
strands: the Research and Right to Development Division, which develops policy
and provides guidance, tools, advice and capacity-strengthening support on thematic
human rights issues; the Human Rights Treaties Division, supporting the treaty
bodies; the Field Operations and Technical Cooperation Division, responsible for
overseeing and implementing its work in the field; and the Human Rights Council
and Special Procedures Division, providing technical support to the Human Rights
Council, the Universal Periodic Review mechanism and the Special Procedures. It
also has offices in various regions of the world that provide information on the
human rights situation in particular countries. The mandate has only been in
existence for 24 years and has not had an unproblematic relationship with the office
of the Secretary General (van Boven, 2007). The work of some High Commis-
sioners has had more of a focus on women’s rights than others. The current High
Commissioner, Zeid Ra’ad Al Hussein, assumed his post on 1 September 2014. In
terms of his experience in relation to gender, he chaired the Consultative Committee
for the United Nations Development Fund for Women (UNIFEM) and led an effort
to establish greater strategic direction for the Fund (2004–2007). He recently
pledged to be a Geneva Gender Champion. As such, he committed to improving
the gender balance of the senior management team in his office as well as to meet at
least one women’s organisation or woman human rights defender in each field visit.
Unfortunately, these can hardly be seen as ambitious goals, and clearly demonstrate
a lack of priority or concern from a named Gender Champion and High Commis-
sioner. This is an ongoing challenge for VAW and not nearly good enough for the
women and children subject to ‘one of the most widespread, persistent and
devastating human rights violations in our world today’ (Spotlight Initiative, Sep-
tember Spotlight Initiative, September 2017).
1.8.3 Special procedures

Under the auspices of the Human Rights Council (and supported by the Office
of the High Commissioner for Human Rights), the system of Special Procedures
consists of independent human rights experts with mandates to report and advise
on human rights from a thematic or country-specific perspective. Seen as ‘the
public face of the UN human rights [system]’ (Subedi, 2011), Special Procedures
mandate-holders cover all rights: civil, cultural, economic, political, and social. As
of June 2017, there are 55 Special Procedures (43 thematic mandates and 12
mandates relating to countries or territories), Independent Experts, and Special

Representatives of the Secretary General, with currently 79 mandate-holders. The
latest addition is the Independent Expert on Sexual Orientation and Gender
Identity, demonstrating how far the UN member states have progressed in terms
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of formally recognising personal identity and sexual orientation discrimination.
Each mandate holder may serve for a maximum of six years. This independent
status is intended to allow the experts to carry out their functions with imparti-
ality. They serve in their personal capacities and undertake to uphold indepen-
dence, efficiency, competence and integrity through impartiality, honesty and
good faith. They are not United Nations staff members and do not receive a
salary, however their costs for conducting missions and reporting, are met by the
OHCHR. The HRC has recognised the importance of ensuring transparent,
adequate and equitable funding to support all Special Procedures according to
their specific needs (see Human Rights Council Resolution 16/21; for a history
of the Special Procedures system, see Subedi, 2011; Limon and Power, 2014).
Unfortunately, the funding situation still reflects a bias towards mandates work-
ing on a limited range of civil and political rights.
The mandate holders can play a key role in holding States to account for their
human rights standards (Golay et al, 2012). All thematic and country-specific
mechanisms can and do receive information relevant to their mandates from a
variety of sources (including NGOs) in order to make recommendations regard-
ing the prevention of violations. They also hold meetings with civil society and
other stakeholders during their country visits, and to request visits to institutions,
such as detention centres and prisons. Some have the power to respond to
allegations of violations by, through the communications procedure system for
instance, beginning a dialogue with complainants and governments. The Special
Procedures undertake country visits; act on individual cases and systemic problem
areas, including by sending communications to States in which they bring alleged
violations to States’ attention; they conduct thematic studies; convene expert
consultations; develop international human rights standards; engage in advocacy
and raise public awareness, as well as provide advice and support for technical
cooperation. They are equally able to address shortfalls in normative instruments,
suggesting to States how to fill the gaps and providing good practice examples.
These tasks are particularly relevant to the Special Rapporteur on VAW (see
below). Special Procedures report annually to the Human Rights Council and
most also report to the General Assembly. The Special Procedure mandate
holders can also play a significant role in access to justice for individuals or
groups as there is no domestic remedy exhaustion rule. Once an issue falls
within the remit of the Special Rapporteur, s/he can pursue it by writing to
States, seeking to make a joint statement with other mandate holders or seek a
joint mission. These are persuasive tools available to all mandate holders that are
used to a greater or lesser extent and effect, wholly dependent on the person in
the role at any given time. There are limitations however. For instance, commu-
nications and other tools are of persuasive value only, not compulsory, and States
do not always follow the recommendations made. This particular weakness (for
other examples see Subedi, 2011) exemplifies the need for more effective follow-
up processes, in addition to the enactment of a new international instrument on
VAWG.
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1.8.3.1 Special Rapporteur on violence against Women, its causes
and consequences
Resolution 1994/45 of the Commission on Human Rights, adopted on 4 March

1994, established the mandate of the Special Rapporteur on Violence against Women,
its causes and consequences. The mandate has been extended ever since. This office is
not paid, and the person who holds it is a recognised independent expert.
The role of the Special Rapporteur includes:
(a) Seeking and receiving information on violence against women, its causes and
consequences from Governments, treaty bodies, specialised agencies, other
special rapporteurs responsible for various human rights questions and inter-
governmental and non-governmental organisations, including women’s
organisations, and responding effectively to such information;
(b) Recommending measures, ways and means at the local, national, regional
and international levels to eliminate all forms of violence against women and
its causes, and to remedy its consequences;
(c) Working closely with all special procedures and other human rights mechan-
isms of the Human Rights Council and with the treaty bodies, taking into
account the request of the Council that they regularly and systematically
integrate the human rights of women and a gender perspective into their
work, and cooperate closely with the Commission on the Status of Women
in the discharge of its functions;
(d) Continuing to adopt a comprehensive and universal approach to the elim-
ination of violence against women, its causes and consequences, including
causes of violence against women relating to the civil, cultural, economic,
political and social spheres.
In addition, the Special Rapporteur can and does transmit urgent appeals and
communications to States regarding alleged cases of violence against women
under the individual complaints mechanism, undertakes country visits and sub-
mits annual thematic reports. (The work of the Special Rapporteur will be dealt
with in more detail in Chapter 3).
1.8.3.2 Special Rapporteur on torture

The Special Rapporteur on torture and other cruel, inhuman or degrading
treatment or punishment was established in 1985. As with other mandate
holders, the Special Rapporteur’s work covers four main areas:
(a) Seeking and receiving credible and reliable information from Governments,
the specialised agencies and non-governmental organisations;

(b) Making urgent appeals to Governments to clarify the situation of individuals
whose circumstances give grounds to fear that treatment falling within the
Special Rapporteur’s mandate might occur or be;
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(c) Transmitting to Governments information of the sort mentioned in (a)
above indicating that acts falling within the Rapporteur’s mandate may have
occurred or that legal or administrative measures are needed to prevent the
occurrence of such acts;

(d) Carrying out visits in situ with the consent of the Government concerned.
The Rapporteur’s reports, as with the Rapporteur’s mandate, are specifically

focussed on a narrow remit, as defined by the UN Convention against Torture.
The Convention does not mention gender specifically. The inclusion of a gender
analysis and the particular types of violence women are typically subjected to (in
the private sphere) within the torture paradigm has been a challenging one.
However, over time, the Committee against Torture and the Special Rapporteur
have read gender into their deliberations. Perhaps prompted by events, new trends,
civil society or other reports, several Special Rapporteurs on Torture have focussed
attention on gender and torture in different settings but have not done so in a
holistic or consistent way. Drawing attention to the subject in 1996, the Special
Rapporteur on Violence against Women, Radhika Coomaraswamy, stated that:
the argument that domestic violence should be understood and treated as a

form of torture and, when less severe, ill-treatment, is one that deserves
consideration by the rapporteurs and treaty bodies that investigate these
violations together perhaps with appropriate NGO experts and jurists.
(E/CN.4/1996/53, para. 50)
The 1995 report of the Special Rapporteur on Torture contained an extensive

section on women, including gender-based torture, but in 1996 and 1997 no
mention of women or gender-based torture were included (E/CN.4/1995/34).
In 1999 the Special Rapporteur submitted two reports to the Commission on
Human Rights with references to women; one addressing gender-specific forms of
torture directed primarily against women and children and making appropriate
recommendations concerning prevention; and the other on the issue of torture and
children (Rodley, 1999; see Gallagher, 1997: 313). In 2000, the Special Rappor-
teur on Torture included information on women being subjected to gender-
specific forms of torture, including rape, sexual abuse and harassment, virginity
testing, forced abortion or forced miscarriage. In his 2008 Human Rights Council
report, Manfred Nowak, the then Special Rapporteur on Torture, focussed on
‘strengthening the protection of women from torture: towards a gender-sensitive
interpretation of torture.’ This report was a response to the gender mainstreaming
agenda across the United Nations as well as the focus on actions to end violence
against women, including the Secretary General’s In-Depth Study on all Forms of
Violence against Women (UN Secretary-General, 2006); the High Commissioner
for Human Rights’ work on ending impunity, especially for sexual violence; and
also the call by the Special Rapporteur on Violence against Women to fully apply
the human rights framework to the concerns of women. The most recent report on
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28 Jackie Jones
the recognition and intersectionality of torture and gender is by Juan Mendez in
2016 (A/HRC/31/57). He reiterated that
full integration of a gender perspective into any analysis of torture and ill-
treatment is critical to ensuring that violations rooted in discriminatory social
norms around gender and sexuality are fully recognized, addressed and remedied.
This intersectional approach demonstrates how far the UN system has progressed in
the recognition of human rights. What is missing from this report, however, is the
intersection with race, disability and age, indicating the current trend to highlight
the social construction of gender and sexual identity. These factors add another layer
of complexity that, quite rightly, has also to be addressed in order to ‘see’ the whole
person. However, trends tend to hide the fact that the base-line rights have not yet
been fulfilled and solutions to the most prevalent human rights issues have not been
found. This is particularly problematic for the work on VAWG.
1.8.3.3 Intersectionality: the roles of two independent experts

The perspective on an intersectional approach as discussed above, is borne out by the
establishment of two new mandates. First, the Independent Expert on the enjoyment
of all human rights by older persons was established in 2013 by Human Rights
Council Resolution 24/20. Despite the fact that there have been longstanding
demands for a separate instrument that specifically covers the particular concerns of
older people, the remit of the mandate does not directly address this issue. Indeed,
everything but: it assesses the implementation of existing international instruments,
identifies good practice and any gaps in implementation, calls for reviews of the
Madrid Plan of Action in 2002 (for details see the Independent Expert’s General
Assembly Report of July 2016, A/HRC/33/44, [96-120]), and assigns information
sharing and awareness raising tasks. The Mandate also works in close coordination
with, but not duplicating the work of, the Open-ended Working Group on Ageing.
It, inter alia, looks at the possibility of a new instrument to fill any normative gaps,
outlined in its 2013 report (available at http://social.un.org/ageing-working-
group/documents/fourth/compilation.pdf. See also Tang and Lee, 2006, calling
for an international convention). Despite this formal separation of roles, in her very
first report to the Human Rights Council in July 2014, the Independent Expert,
Rosa Kornfeld-Matte, described the manifold consequences of the normative gap:
31. The lack of a comprehensive and integrated international legal instru-

ment to promote and protect the rights and dignity of the elderly has
significant practical implications, given that:
(a) Existing regulations do not cohere, let alone conceptualize, regulatory

principles to guide public action and policies of Governments;
(b) General human rights standards do not consider the recognition of
third-generation specific rights in favour of elderly adults;
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(c) It is difficult to clarify the obligations of States with respect to older
persons;
(d) Procedures for monitoring human rights treaties generally ignore older
persons;
(e) Current instruments do not make the issues of ageing visible enough,
which precludes the education of the population and with it, the
effective integration of the elderly.
(A/HRC/27/46)
Some of these criticisms can also be levelled at the normative gap in relation to
violence against women, including where they intersect with age.
Second, Human Rights Council Resolution 32/2 of 2016 created the role of
Independent Expert on protection against violence and discrimination based on
sexual orientation and gender identity. The fact that this mandate was created in
2016 at a time when it is generally agreed that women’s rights had stagnated, or
regressed, and discrimination on the basis of one’s identity (including hate
crimes) had increased significantly, it is short of miraculous, clearly demonstrating
that, despite some opposition, where political will leads, law can follow. Indeed,
in his first report the Independent Expert provided a vivid picture of the levels of
violence currently experienced by this community,
14. According to the statement from 12 United Nations entities on ending

violence and discrimination against lesbian, gay, bisexual, transgender and
intersex people: The United Nations and others have documented wide-
spread physical and psychological violence against LGBTI persons in all
regions — including murder, assault, kidnapping, rape, sexual violence, as
well as torture and ill-treatment in institutional and other settings. LGBTI
youth and lesbian, bisexual and transgender women are at particular risk of
physical, psychological and sexual violence in family and community settings.
LGBTI persons often face violence and discrimination when seeking refuge
from persecution and in humanitarian emergencies. [. . .] In many countries,
the response to these violations is inadequate, they are underreported and
often not properly investigated and prosecuted, leading to widespread impu-
nity, and lack of justice, remedies and support for victims.
Such developments reflect substantive progress to focussing on intersecting forms

of violence and acknowledging and addressing this as part of the UN’s work. In
his report to the Human Rights Council in June 2017, the Independent Expert,
Vitit Muntarbhorn, outlined his understanding of intersectionality by stating,
39. Violence and discrimination often appear not as singular events but as
part of a prolonged vicious circle. They are multiple and multiplied —

inextricably linked emotionally, psychologically, physically and structurally.
They intersect in a variety of ways, and most clearly where the victim is not
only attacked or discriminated against for having a different sexual
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30 Jackie Jones
orientation and gender identity but also on grounds of race, ethnic origin,
age, gender, or membership of a minority or indigenous community. The
person might also be a child, a young girl, an intersex person, a refugee, an
internally displaced person, a migrant worker, a person with a disability, and

more. This intersectionality involves a conglomeration of incidents, actors,
perpetrators, and victims — the latter being re-victimized an infinite number
of times, possibly in different phases of life. The situation becomes aggra-
vated precisely because of the convoluted nature of the phenomenon, where
crimes are replicated against the same victims and where impunity prevails
subsequently, from the home to the school, to the community, to the nation
State and to the international spectrum. In today’s cyber world and social
media, incitement to hatred and violence driven by hate speech relating to
sexual orientation and gender identity has an exponential reach, spinning the
web of violations in real time and into the future. (A/HRC/35/36)
It appears that the UN has now formally acknowledged that intersectionality

plays a significant role in the identity and personal security of the person, which is
an essential part of being able to enjoy one’s human rights. On occasion, there-
fore, the UN does demonstrate the necessary political will to address urgent
human rights issues (see generally on this issue, Mulé et al, 2016).
1.8.4 UN Women
In 2010, four UN bodies (the Division for the Advancement of Women (DAW),
International Research and Training Institute for the Advancement of Women
(INSTRAW), Office of the Special Adviser on Gender Issues and Advancement of
Women (OSAGI), and United Nations Development Fund for Women
(UNIFEM)) were amalgamated into one, establishing UN Women (for an
analysis of the creation of UN Women see Charlesworth and Chinkin, 2013).
Its mandate is to empower women and enhance gender equality in, inter alia,
the Sustainable Development Goals (SDGs), youth, peace and security, govern-
ance, and ending violence against women. Since its inception in 2010, UN
Women has served as the Secretariat of CSW.
In terms of VAWG, UN Women is in a position to effect positive transforma-
tive change, but there are challenges and shortcomings. It assists Governments to
develop national action plans to prevent and address violence against women and
advocates for the integration of violence in key international, regional and
national frameworks, such as the 2030 Agenda, that apply to all countries,
including the so-called developed countries. In terms of that Agenda, UN
Women could play a key role as action against violence and discrimination has
been included in the 17 Goals. Three Goals in particular will be highlighted here.
Goal 5 is the stand-alone goal on gender equality, with targets on VAW. Goal 8
calls for immediate and effective measures to eradicate forced labour, end modern
slavery and human trafficking and secure the prohibition and elimination of the
worst forms of child labour, including recruitment and use of child soldiers, and
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by 2025 end child labour in all its forms. Two targets set by Goal 16 are to
significantly reduce all forms of violence and related death rates everywhere, as
well as ending abuse, exploitation, trafficking and all forms of violence and
torture of children. It also includes promoting anti-discrimination measures in

order to promote peaceful and inclusive societies for sustainable development,
provide access to justice for all, and build effective, accountable institutions at all
levels. In 2019, Goal 16 will be reviewed at the United Nations High-level
Political Forum on Sustainable Development (HLPF). UN Women will have a
significant role to play in measuring the success, or lack thereof, of this and other
Goals. It can play a major role holding governments to account for violations. In
addition, it has been given a leading role in the new Spotlight Initiative. In
September 2017, the European Union and the UN embarked on a new, global,
multi-year initiative focused on eliminating all forms of VAWG. Designed to put
‘a spotlight on efforts to achieve gender equality and women’s empowerment’ as
part of Agenda 2030, the initiative will respond to VAWG, with a focus on
domestic and family violence, sexual and gender-based violence and harmful
practices, femicide, trafficking in human beings and sexual and economic
(labour) exploitation. A UN multi-stakeholder trust fund, administered by the
Multi-Partner Trust Fund Office, with the support of UNDP, UNFPA and UN
Women, and overseen by the Executive Office of the UN Secretary General, will
have EUR 500 million to distribute to projects across the globe. The Initiative
could make a significant difference.
In terms of long-standing VAW initiatives, UN Women coordinates the
Secretary-General’s UNiTE campaign and the COMMIT initiative. UN Women
has also developed the Virtual Knowledge Centre to End Violence against
Women and Girls, an online resource centre. It partners with governments, UN
agencies, civil society organisations and other institutions to advocate for ending
violence, increase awareness of the causes and consequences of violence and build
capacity of partners to prevent and respond to violence. Recently, UN Women
has pushed the need for changing norms and behaviour of men and boys. In
terms of technical assistance, UN Women aids in standard setting, technical
assistance, financial assistance, education, advocacy, data collection and coordina-
tion. UN Women has been assigned key tasks that could transform the lives of
women and girls. However, there have been several criticisms of their work in
recent times. For instance, its partnership with the taxi firm Uber, announced at
one CSW, denounced by most women NGOs at the same CSW, forcing UN
Women to rescind the contract. UN Women’s focus on influencing men and
boys’ behaviour has also been criticised, notably because of the usage of scarce
financial resources for these projects, thereby negatively impacting work on
VAWG.
1.8.5 Commission on the status of women

The United Nations Commission on the Status of Women (CSW) is the main
global inter-governmental body that promotes gender equality and women’s
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32 Jackie Jones
empowerment. It was established by Economic and Social Council Resolution 11
(II), of 21 June 1946 and is an organ of the Economic and Social Council
(ECOSOC). There are 45 countries represented on the CSW, with seats allocated
according to geographical distribution: 13 African states, 11 Asia-Pacific states,

four Eastern European states, nine Latin American and Caribbean states, and
eight Western European and Other states. Since its establishment, its remit has
expanded, reflecting the growing recognition of women’s human rights within
the UN system. In the 1950s, 1960s and 1970s, it drafted the first conventions
granting specific human rights to women and girls, such as the Convention on
the Political Rights of Women and the Convention on Consent to Marriage,
Minimum Age for Marriage and Registration of Marriages, and Discrimination
against Women (CEDAW), and helped in the development of the Beijing
Declaration and Platform for Action (BPfA). Since the expansion of its remit in
1996 by ECOSOC the Commission takes a leading role in monitoring and
reviewing progress and problems in the implementation of the Beijing Declara-
tion and Platform for Action, and in mainstreaming a gender perspective in UN
activities (Resolution 1996/6). Following the adoption of the 2030 Agenda for
Sustainable Development, the Commission (alongside UN Women) now con-
tributes to the follow-up to the 2030 Agenda in order to advance gender equality
and the empowerment of women (ECOSOC Resolution 2015/6). One of the
key enforcement and representation features of the CSW is that any individual,
non-governmental organisation, group or network can submit communications
(complaints/appeals/petitions) about alleged violations of human rights that
affect the status of women in any country in the world. The CSW considers
these communications in its annual programme of work. It does so in order to
establish emerging trends and discriminatory practices that inform and direct
policy formulation and development of strategies for the promotion of gender
equality. The communications procedure, however, is not an individual com-
plaints procedure.
The Commission’s main task is its two-week meeting in New York each year,
usually in March to coincide with International Women’s Day. It is by far the
largest annual UN meeting of governments and civil society, with nearly 4,000
NGO representatives (mainly women’s organisations) descending on the UN in
New York in order to participate in the CSW each year and to organise side
events and lobby governments in order to highlight different aspects of the
priority theme of CSW that year. The Special Rapporteur on Violence against
Women reports orally to the CSW each year and thereby feeds directly into the
process. The Special Rapporteur also hosts and attends several side-events,
retaining a direct link to civil society.
The main outcome of the two-week meeting is the ‘agreed conclusions’ that
analyse the priority theme and propose recommendations for governments,
institutions, civil society, and other relevant stakeholders to implement at the

international, national, regional, and local levels. In addition, the Commission
adopts resolutions on various issues. Negotiation of the agreed conclusions text
begins before the Commission is officially in session. The first draft, called the
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‘Zero Draft’, is distributed to all Member States for them to make their
contributions to the text through a series of additions and suggested deletions.
There is very little input from civil society at this stage, in fact, often, civil society
is completely excluded, or only consulted once the final ‘Zero Draft’ has been
made public. During the sessions of the Commission in New York, the negotia-
tions become ‘readings’ of the text, with the first week yielding few changes, but
with much lobbying of government delegations from NGOs on the ground. Not
until the second week does the horse-trading over each phrase and paragraph get
really interesting. Often, it is in the final hours of the last day that the draft
becomes finalised.
During the 57th Session of the CSW in 2013, the priority theme was
elimination of violence against women. The Agreed Conclusions condemned
all forms of violence against women as a violation of human rights, and declared
that custom, tradition or religion cannot be invoked to justify this violence. In
addition, the Conclusions called on governments and stakeholders to take
actions to improve legal and policy frameworks against violence against
women, including prevention, the response to violence against women and
girls and improving the collection of evidence. The CSW57 Conclusions were
in marked contrast to the last time these issues were discussed in CSW 2003
where there were no Agreed Conclusions. The CSW meetings and Agreed
Conclusions certainly help galvanise civil society organisations to commit more
resources to this fight, and to very clearly make the case for pursuing the goal of
a normative international instrument to protect women and girls from all
manifestations of violence.
1.8.6 The Security Council

The Security Council is one of six organs established under the UN Charter. It
has 15 member States, with five permanent ones and other members rotating.
The Security Council recommends to the General Assembly the appointment of
the Secretary General and the admission of new Members to the United Nations.
Together with the General Assembly, it elects the judges of the International
Court of Justice. Its main function is to maintain international peace and security,
not human rights, through the adoption of resolutions and, in certain circum-
stances, imposing economic sanctions or authorising the use of force in the
sovereign territory of a State.
In response to the call to mainstream gender within the UN organs and
programmes, as well as pressure from (mainly women’s) civil society organisa-
tions, the Security Council has adopted eight resolutions so far as part of its
‘Women, Peace and Security Agenda.’ These resolutions are: Security Council
Resolutions 1325 (2000); 1820 (2009); 1888 (2009); 1889 (2010); 1960
(2011); 2106 (2013); 2122 (2013) and 2242 (2015). All the resolutions work
towards promoting gender equality within the system and improving women’s
participation, protection, and rights before, during and after conflict. Arguably
the landmark resolution focussing on gender and security is Resolution 1325. It
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34 Jackie Jones
certainly became and still is a rallying cry for NGOs working within the sector
and a strong political tool to hold governments to their commitment to include
women in the peace processes and to add a gender lens to political processes,
including having women at the negotiating table dealing (inter alia) with
reconstruction (both political and structural). It also engendered a series of
actions in other parts of the UN, with the establishment of specific programmes
and task forces exclusively focussing on women, peace and security (for a
feminist analysis see, for example, Otto, 2010). Whilst it is welcome to see
these soft law resolutions being passed by the Security Council, some even
unanimously, there are serious concerns. First, the narrow focus on women in
conflict situations in the resolutions is a major drawback. Second, the types of
violence dealt with in the resolutions are equally narrow, including omitting
solutions for the violence perpetrated against child soldiers and the focus on
sexual violence. Third, the lack of effective enforcement mechanisms or sanc-
tions to deal with any infractions of the resolutions is yet another flaw. And
finally, for the purposes of this book only, the clear lack of a holistic structural
approach within the Resolutions, enabling positive transformative progress for
women and girls, is a source of concern.
1.8.7 General Assembly

The General Assembly is the main policymaking body of the United Nations,
with every UN member State represented. It deliberates on issues as diverse as
peace and security, admission of new members and budgetary matters, the latter
requiring a two-thirds majority, the others only a simple majority. It meets in its
regular session from September until December every year at the UN head-
quarters in New York. The General Assembly’s work is divided between commit-
tees, with the Third Committee dealing with Social, Humanitarian and Cultural
Issues, including human rights and the advancement of women.
In terms of action in relation to eliminating violence against women, the
General Assembly has a solid track record of adopting many resolutions and
reports as well as other measures. Clearly one of the most important was the
Declaration on the Elimination of Violence against Women (DEVAW) (A/
RES/48/104) as ‘early’ as 1993. In 1997, the General Assembly adopted
model strategies and practical measures on the elimination of violence against
women in the field of crime prevention and criminal justice as an annex to
General Assembly Resolution 52/86 on crime prevention and criminal justice
measures to eliminate violence against women. In 1999, the General Assembly
designated 25 November as the International Day for the Elimination of
Violence against Women (A/RES/54/134). Furthermore, the Third Com-
mittee receives the reports of the mandate holders each year and also reports
from the Human Rights Council. From the year 2000 (similar to the Security
Council and as part of the gender mainstreaming agenda), the General
Assembly has passed a number of resolutions and commissioned several
reports that deal with different aspects of violence against women. These
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were yearly but are now every other (even) year. The resolutions and reports
describe the actions or inactions of States and UN bodies in relation to
ending violence against women and girls. Some examples include: the Secre-
tary General’s In-Depth Study on VAW in 2006, which is still used by civil
society and UN Women as a rallying call for action on eliminating violence
against women and girls; Resolution 61/143 on the intensification of efforts
to eliminate all forms of violence against women, including what States have
done to eliminate violence against women in their domestic settings; Resolu-
tions 67/144 and 69/147, recognising that violence against women and girls
is an impediment to their enjoyment of all human rights and their full
participation in society, the economy and political decision-making, and
acknowledging the indivisibility of human rights. Additionally, the General
Assembly has commissioned several reports, including ones that deal with
intersectionality (for instance, violence against women migrant workers,
crimes in the name of honour, traditional or customary practices affecting
the health of women and girls and female genital mutilation), alongside other
reports (all forms of violence against women, domestic violence and human
trafficking). In the latest Secretary General’s 2016 report (UN Secretary-
General, 2016), the Sustainable Development Goals (the 2030 Agenda) were
described as a ‘new hope’ for eliminating violence against women and for
making gender equality central to the agenda for development regardless of
location. Absent was a call for a new normative instrument, despite the reports
of the former SRVAW, and also her interventions on this issue with the
Secretary General during her tenure. However, the report clearly describes
the normative and legislative gap, especially in relation to economic violence,
concluding, inter alia, that
75. Despite decades of work to address violence against women, it remains

persistent and ubiquitous. The tenacity of this expression of gender inequal-
ity is not to be underestimated. Understanding of such abuse has grown,
initiatives to reduce it have been tried and intolerance of violence is building
globally. The commitments in the new sustainable development agenda
confirm that. However, in order to fulfil the promise made to women that
violence will be eliminated by 2030, a step change in our collective efforts is
required. For violence against women to become a relic of history, the
following gaps and actions need to be prioritized.
(71/219)
Describing violence against women as ubiquitous despite decades of work to try

to address it and NOT calling for the normative gap to be filled strikes me as
credulous and untenable. As this book acknowledges, law is not the answer, but
it is certainly part of the solution and a key first step to effectively tackle this issue
and hold States accountable for their lack of effective action.
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36 Jackie Jones
1.9 Conclusion
This chapter has argued that international law is a worthwhile project for
feminists, despite its shortcomings, providing a very useful alternative narrative

for civil society to engage with. International law (and the institutions that
support it) is in the process of becoming gendered. From the institutions to the
reports and resolutions, even some of its laws. There is some way to go yet.
International human rights law offers women and girls the opportunity to live a
life in dignity, as rights bearers and as fully autonomous human beings. But
only if the law is responsive and substantive in the first place: it must be
inclusive, transformative, accessible, accountable and specific to the lives of
women and girls. The aim of the chapters in this book is to draw attention to
the gap, or gaping hole, that could be filled with a new Convention or Optional
Protocol, fit for this and future centuries, responsive to the needs of women and
girls regardless of geography or social status. Eliminating violence against
women and girls – acknowledged as the most prevalent human rights violation
in the world today – has to be the UN’s next project of international human
rights law-making if it is to stay relevant and current, not outdated and
obsolete.
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against Women. (2001). Report E/CN.4/2001/73 Violence against Women Perpetrated
and/or Condoned by the State During Times of Armed Conflict (1997–2000).
United Nations. Human Rights Council. (June 2017). Report of the Working Group on the
Issue of Discrimination against Women in Law and in Practice. A/HRC/35/29.
United Nations. Human Rights Council. (June 2017). Thirty-fifth session. A/HRC/35/36.
United Nations. Manfred Novak. (January 2008). Report of the Special Rapporteur on Torture
and other Cruel, Inhuman or Degrading Treatment or Punishment. A/HRC/7/3.
United Nations. Report of the Special Rapporteur. (1995). Mr. Nigel S. Rodley, submitted
pursuant to Commission on Human Rights resolution 1992/32, U.N. Doc. E/CN.4/
1995/34.
United Nations. Report of the Special Rapporteur. (1996). Mr. Nigel S. Rodley, submitted
pursuant to Commission on Human Rights resolution 1995/37, U.N. Doc. E/CN.4/
1996/35.
United Nations. Secretary-General. (2006). In-Depth Study on All Forms of Violence against
Women. U.N. Doc. A/61/122/Add.l.
United Nations. Secretary-General. (2016). Intensification of efforts to eliminate all forms of
violence against women and girls. U.N. Doc. A/71/219.
Universal Declaration of Human Rights. (1948). G.A. Res. 217A. U.N. GAOR, 3d Sess., 1st
plen. mtg., art. 7, U.N. Doc. A/810.
Van Boven, T. (2007). ‘The United Nations High Commissioner for Human Rights: The
History of a Contested Project.’ 20 Leiden Journal of International Law, 767–784.
Van Boven, T. (2014). ‘Categories of Rights,’ in: Moeckli, D. et al. (Eds), International
Human Rights Law. Oxford: Oxford University Press.
Vienna Declaration and Programme of Action, 13 Oct. 1993, U.N. Doc. A/CONF.157/24
18, at 33.
Working Group on Discrimination against Women in Law and Practice, Human Rights
Council, A/HRC/Res 15/23.
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2 Exploring the Consequences of the
Normative Gap in Legal Protections
Addressing Violence Against Women

David L. Richards and Jillienne Haglund
2.1 Introduction
Are the rights of women and girls against violence secure in the hands of the
Convention on the Elimination of All Forms of Discrimination Against
Women’s (CEDAW) General Recommendation 19 and three regional treaties?
Or, does a normative gap between rhetorical commitments made to women and
girls on one hand, and the extant binding international law protecting them on
the other, require a standalone, international treaty on violence against women
and girls? Currently, there is some debate about these questions. This chapter
adds a voice to the discussion by providing an empirical examination of the
consequences of the normative gap in international law addressing violence
against women and girls. In the first section, we provide some background on
the concept of normative gaps in international law, address why the normative
gap relating to gender violence is of particular concern, argue that the con-
sequences of normative gaps in domestic laws addressing women and girls
provide a reasonable proxy for the international gap, and provide some exam-
ples of normative gaps in domestic laws. In the second section, we use data
about 173 countries during 2007–2014 to demonstrate consequences of nor-
mative gaps in domestic laws from which reliable generalizations may be drawn.
We find reliable evidence implying that the domestic normative gap is complicit
in higher levels of domestic violence, higher rape prevalence, higher female HIV
rates, lower human development, and higher acceptance of violence against
women and girls. From this, we suggest that women and girls would be best-
served by an explicit treaty addressing gender violence rather than the current
framework resting on CEDAW General Recommendation 19 and regional
treaties, alone.
2.2 The idea of a normative gap

The idea of a normative gap is a simple one. It is a condition that exists when
some widely-accepted moral principle has insufficiently binding rules to guide
and/or impel actors’ behaviour in line with that principle. Put most simply, it is
a gap between aspiration and firm commitment. In the context of international
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The Normative Gap in Legal Protections 41
human rights law, a normative gap is a condition where states have widely
agreed upon some standard of human dignity (which includes principles of
equality and non-discrimination) but have failed to institute binding rules to
hold states accountable to this standard in terms of their human rights laws and
practices.
One situation that could produce a normative gap in international human
rights law would be states having difficulty achieving consensus on what new
rules would be best for universal attainment of an agreed-upon principle. A
second cause for a normative gap could be the emergence of a new threat.
Volker Türk (2012, pp. 127–128), Director of International Protection at the
office of the UN High Commissioner for Refugees (UNHCR), made it clear that
refugees being displaced by sudden climatological events related to climate
change is an issue “well beyond the UNHCR’s remit”, and thus “there is
indeed a normative gap affecting people who may be obliged to cross an
international border owing to the impact of rapid-onset meteorological events
linked to climate change”.
A third reason for a normative gap might be disagreement among both states
and civil society actors about whether new rules are necessary to address a new
norm, as some might feel existing rules are sufficient. For example, De Braban-
dere (2010, p. 143) argues there is no normative gap with regards to laws
governing the transition from conflict to peace because, in his view, peace treaties
already fulfill this role adequately. On the other hand, one could argue new rules
are necessary to protect some group that is disproportionately affected by a
threat. In 2012, civil society actors submitted a statement to the UN Human
Rights Council urging address of a normative gap in international human rights
law where, “while peasants [constitute] half of the world population and the
backbone of the food system . . . they [are] . . . disproportionately affected by
poverty, discrimination and other human rights violations” (States News Service
2012, p. 3). There may even be different beliefs about how to eliminate the same
gap. For example, some actors advocating to fill the same normative gap as the
peasant-advocacy groups do not focus on protections for any particular group
but, rather, on a broader “right to development” (Saul 2006, p. 13).
To be clear, one prime reason for the existence of the normative gap in
international law addressing the issue of violence against women and girls is that
some international actors assert that existing legal frameworks works are suffi-
cient. However, there is reason to doubt the assertion that extant frameworks can
bear the weight of the ideal of a gender-violence-free world. First, there is the
issue of the legal character of General Comments made by treaty bodies. Then-
Special Rapporteur on Violence against Women Rashida Manjoo emphasized in
her 2015 report to the UN Human Rights Council that:
The current norms and standards within the United Nations system emanate
from soft law developments and are of persuasive value, but are not legally
binding. The normative gap under international human rights law raises
crucial questions about the State responsibility to act with due diligence
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42 David L. Richards and Jillienne Haglund
and the responsibility of the State as the ultimate duty bearer to protect
women and girls from violence, its causes and consequences.
(Manjoo 2015, p. 19)
And, certainly, there is a foundation for her position that the norms emanating
from General Comments are soft law.1 Steiner et al. (2008, p. 874) note there
exists a “broad spectrum” of opinions about the legal force of General Com-
ments, ranging from “those which seek to portray them as authoritative inter-
pretations of the relevant treaty norms . . . to highly critical approaches which
classify them as broad, unsystematic, statements . . . not deserving of being
accorded any particular weight in legal settings.” Further, “the great majority of
national courts continue to take little or no notice of [General Comments]”
(p. 874). Likewise, “[i]t is generally accepted as a matter of international law that
the decisions of the Human Rights Committee and other committees under
individual complaints procedures are not as such formally binding under interna-
tional law” (International Law Association 2002, p. 516).
General Comments are not without value. There does exist a consensus that
General Comments can be important “signposts” or “aids for interpretation” for
treaties (Mechlem 2009, p. 929). However, states are on record that General
Comments are not, in their view, legally binding. For example, General Comment
No. 24 (52) of the committee interpreting the International Covenant on Civil
and Political Rights contains an element stating “a reservation that rejects the
Committee’s competence to interpret the requirements of any provisions of the
Covenant would also be contrary to the object and purpose of that treaty.” The
United States of America noted in a formal response that “it is unnecessary for a
State to reserve as to the Committee’s power or interpretive competence since the
Committee lacks the authority to render binding interpretations or judgements.”2
In the same matter, the United Kingdom noted that it “. . . is of course aware that
the general comments adopted by the Committee are not legally binding.”3
The limitations of regional treaties are the second reason we believe existing
frameworks to be insufficient. Women’s rights are universal human rights, but
regional treaties – except in a purely theoretical sense – cannot provide universal
protections for universal standards of dignity. Special Rapporteur on the Rights
of Women in Africa Lucy Asuagbor offers:
[I]nternational standards differ from regional standards that collectively

suffer a lack of implementation at the domestic level. The resultant fragmen-
tation works to the disadvantage of victims who may be faced with several
but non-inclusive and non-complementary avenues of redress.
(2016, p. 4)
Fragmentation has negatively affected other issue areas, thus our belief that this
concern is not immaterial. For example, despite a patchwork of various laws on
the matter, a normative gap in “post-conflict property repossession” existed until
the “Pinheiro Principles” (United Nations Principles on Housing and Property
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Restitution for Refugees and Displaced Persons 2005), which “produced a more
precise articulation and . . . new phase of institutionalization” (White 2015,
p. 600).
Moreover, relying on a patchwork of regional treaties and existing soft law

brings with it the danger of inconsistency due to overlap. Henkin et al.
(1999) offer the following example. Article 6 of the Inter-American Con-
vention on the Prevention, Punishment and Eradication of Violence Against
Women (1994) asserts that “The right of every woman to be free from
violence includes, among others: (a) The right of women to be free from all
forms of discrimination.” On the other hand, CEDAW’s General Recom-
mendation 19 asserts that violence against women is a form of discrimina-
tion. Henkin et al. raise the question of whether this is the same thing stated
two ways. The answer to this appears to us to be “no”, as on one hand
CEDAW states that some forms of discrimination constitute violence against
women, and on the other hand, the Inter-American treaty states that all
forms of discrimination constitute violence against women. How could such
a state be expected to create stability in either policy or adjudication? More-
over, the existing state of overlap is indeed acute. In her statement to the
61st Session of the Commission on the Status of Women (CSW) (2017),
Special Rapporteur on Violence against Women Dubravka Šimonović noted
seven separate mandates relating to violence against women and called for
“stronger cooperation between global and regional mechanisms dealing
with . . . violence against women and for a joint and complementary use of
global and regional instruments on violence against women with the aim of
ensuring synergies.”4
Some, such as former Special Rapporteur Manjoo, have suggested that a
standalone treaty on violence against women is the best means to bring a
binding, uniform international response to the pandemic that is violence against
women and girls. This idea continues to be actively debated. In the autumn of
2016, Special Rapporteur Šimonović issued a call for submissions “on the
adequacy of the international legal framework.”5 The questionnaire consisted of
five questions gathering opinions relating to whether a normative gap exists, the
fragmentation of current law, and whether a new, binding treaty is required. In
her March 2017 statement to CSW, the Rapporteur stated that 292 submissions
from civil society had been received, along with requested submissions from eight
regional and international mechanisms. The latter’s submissions, available online,
can be grouped as follows with regards to their attitudes towards the question of
a new treaty:
A New, Separate, Binding Treaty is Favourable: Special Rapporteur on the

Rights of Women in Africa
A New Optional Protocol to CEDAW is Favourable: Committee of Experts

of the Follow-up Mechanism to the Belém do Pará Convention
A New, Separate, Binding Treaty is Unfavourable: ASEAN Commission on
the Promotion and Protection of the Rights of Women and Children,
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ASEAN Intergovernmental Commission on Human Rights, Committee
on the Elimination of Discrimination Against Women, Council of Europe
Group of Action Against Violence Against Women and Domestic Vio-
lence, Working Group on Discrimination Against Women in Law and in

Practice
Did Not Answer Question Directly: Inter-American Court of Human Rights
As of the time of writing, the disposition of the 292 responses from civil society is
unknown.6
2.3 Examining the characteristics of the normative gap
2.3.1 The domestic normative gap as proxy

If there is indeed a gap between international rhetorical commitments and legal
protections afforded women and girls, the key question becomes, “What are the
characteristics of this gap?” However, it is unfortunately impossible, given the
paucity of necessary data, to empirically demonstrate the precise consequences of
the normative gap in international law addressing violence against women and
girls. Nonetheless, normative gaps in domestic law can serve as a reasonable
proxy via which we can ascertain the cost of the lack of explicit international law
on violence against women and girls. The basic logic of this proxy is simple.
Because both international and domestic law perform many of the same functions
– they create explicit rights, crimes, duties, penalties, and compensations based
on agreed-upon principles meant to affect state behaviour – we would expect the
consequences (effect on state behaviour) of a normative gap in international law
to be similar to those from a normative gap in domestic law. That is, if explicit
domestic laws addressing violence against women and girls are more protective
than general laws, we would expect strongly that explicit international laws would
be likewise more protective than general international laws.
We would also expect similarity across these two levels of law because of the
similar role played in each by implementation processes. Betts and Orchard
(2014, p. 2) define “implementation” as a process whereby international norms
are institutionalized into formal domestic law in such a manner as to bring
routine compliance. Among the benefits of implementation processes, they
argue, is increased precision in a domestic, societal understanding of what a new
norm means. That is, “clear and observable standards” (p. 3). We would also
expect the development of a new, binding international instrument to be
associated with increased precision in international standards-setting. This was
certainly true in the case of the 1984 Convention Against Torture (CAT). Before
this treaty, prohibitions against torture and ill-treatment could already be found
in multiple international instruments such as the 1948 Genocide Convention,

1957 Standard Minimum Rules on Treatment of Prisoners, and the 1966
International Covenant on Civil and Political Rights. However, it was not until
torture was so clearly articulated in the CAT (at least compared with extant
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formulations), coupled with the mandate that each state party have a compatible
and clear definition of torture in its legal code, that one could say there existed an
international standard with precision enough to hold states to greater account for
their actions with regards to a type of human rights violation that was not
declining in practice. In short, a specific, legally-binding and precise international
instrument creates precise international standards and this, in turn, can help states
produce precise domestic standards.
Having precise legal standards – at any level – is crucial, as human dignity can
suffer greatly when those who may require motivation to comply are afforded the
opportunity to hide in spaces created by ambiguities. Former Special Rapporteur
on the Right to the Highest Attainable Standard of Health, Paul Hunt, has
written about how a normative gap (defined by him as an “absence of detailed
guidance”) hindered his work in the area of access to medicine:
Without “detailed guidance” pharmaceutical companies could legitimately

remark that while they wished to comply with their right-to-health respon-
sibilities, nobody could tell them what they were. Also, uncertainty about the
contours and content of these right-to-health responsibilities made it very
difficult to hold the pharmaceutical companies accountable.
(Lee and Hunt 2012, p. 221)
Finally, the process of implementing a principle, either internationally or domes-

tically, creates dialogue that leads to clarity of expectations and, as Betts and
Orchard posit, standards for which state fulfilment can be reliably and validly
observed.
2.3.2 Empirically assessing the domestic normative gap

In our book, Violence Against Women and the Law (2015), we rated domestic
laws addressing rape, marital rape, domestic violence, and sexual harassment in
196 countries on the following scale:
Legal guarantees prohibiting [type of violence against women] are:
3 Fully Provided For

2 Correlative
1 Incomplete/Weak
0 Nonexistent/Discriminatory
For assessing the consequences of a domestic normative gap, we are interested in

the difference between a correlative law (2) and a law with full protective
provisions (3). Some countries have laws purportedly addressing violence against
women, but do not mention these forms of violence by name. We call these
“correlative laws”, because they are laws that states say can be used for purposes
similar to that which actual explicit legal guarantees would address. We believe
this situation is akin to the argument that a standalone treaty on violence against
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women and girls is unnecessary because legal frameworks already exist that can
address this problem. Burundi offers an example of a correlative law. In that
country, “[t]he law does not specifically prohibit domestic violence; however,
persons accused of domestic violence can be tried under assault provisions”

(United States Department of State 2008). So, while the assault law can be used
to address domestic violence, it is important to note that it neither explicitly
defines the crime nor distinguishes particular penalties related to gendered
violence.
There exists a normative gap between a general law which states assert could be
used to prosecute violence against women (a correlative law) and a law that
explicitly defines, prohibits, and penalizes a form of violence against women (a
full legal guarantee). We would add that this domestic gap qualifies as “norma-
tive” in a manner similar to the international normative gap because, with the
exception of Iran, Palau, Somalia, Sudan, Tonga, and the United States, all other
states have made one or more soft law commitments to improve laws addressing
gender violence.7
Further, the lack of explicit definition in domestic correlative law is an
important analogue to the international gap. For example, the Council of
Europe Secretariat issued a comparison of the Istanbul Convention and General
Recommendation 19 frameworks. One of the key takeaways from this document
is that the Istanbul Treaty is superior to the CEDAW Framework in providing
explicit definitions of forms of violence. For example, General Recommendation
19 limits sexual harassment to the workplace, provides a limiting definition of
family violence, and does not include economic violence against women. In
addition, the binding CEDAW framework does not include definitions of
“gender”, “gender-based violence”, or “Violence against women, including
domestic violence” (Council of Europe Secretariat 2012, p. 3).
How important is a definition? The issue of marital rape provides a clear
example. In 35 countries it is legally permissible to sexually assault a spouse. In
Lebanon in 2014, “when passing legislation to address domestic violence” that
country “not only declined to criminalize marital rape, but legally entrenched a
‘marital right of intercourse’” (Randall and Venkatesh 2015, p. 154). Many
countries have laws that criminalize marital rape only where there is in effect a
decree nisi of divorce, meaning that a husband can only commit marital rape if
he and his spouse are legally separated (Richards and Haglund 2015). In other
places, such as Singapore, a husband can only commit marital rape if there exists
against him a personal order of protection (AWARE 2011). In India, Sec-
tion 375 of the criminal code defines rape. The description is quite detailed in
its attempt to better-clarify the crime than did previous expositions; it consists
of four paragraphs, seven descriptions, and two explanations. However, it also
includes two exceptions, with the second being “Sexual intercourse or sexual
acts by a man with his own wife, the wife not being under fifteen years of age, is
not rape.”
In all cases that we found to be similar to India, the CEDAW Committee has
been careful to note “with concern” that “marital rape is recognized only in the
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case of judicial separation” (Committee on the Elimination of Discrimination
Against Women 2002, p. 34). However, the CEDAW treaty does not offer a
particular binding formulation for marital rape. That is, there is no question the
intent of the CEDAW Committee is that marital rape is illegitimate in any form,
under any circumstances. However, without a binding formulation, the Commit-
tee’s strength of rebuke is greatly diminished, as states have not willingly signed
on to a particular formulation of the crime of marital rape.
But what of the interaction between a domestic normative gap and the
international framework? Tajikistan serves as an example of a country with a
corollary domestic violence law where the current international framework
seemingly cannot provide enough leverage for improvement towards full crim-
inalization. Tajikistan’s formal embrace of international human rights norms
and civil society actors is matched only, it seems, by the epidemic of violence
against women playing out every day in that country. Tajikistan is a place where
violence against women and girls is “endemic”; a place where, as a non-
governmental organization lawyer described, “In ninety-nine percent of
families, domestic violence occurs, in different forms” (Advocates for Human
Rights 2008, pp. 10–11). On the other hand, Tajikistan is a country that has
been party to CEDAW for nearly two decades, party to all other major
international human rights instruments except the Convention on the Rights
of Persons with Disabilities, and within which international and domestic civil
society organizations are vibrant. Further, Article 10 of the Tajikistan Constitu-
tion states that “International legal documents recognized by Tajikistan shall be
a component part of the legal system of the republic. In case the republican laws
do not stipulate to the recognized international legal documents, the rules of
the international documents shall apply.” Yet, despite all this, the soft law-based
international norms regarding violence against women – and domestic violence,
in particular – have not permeated the country’s gender-violence-related legal
framework.
Tajikistan is of corollary law status with regards to domestic violence because its
criminal code outlaws physical assault and injury generally, but does not specifically
criminalize domestic violence. This is a less-than-optimal arrangement, as “the
absence of protections and penalties for violence in the home undermines efforts to
support victims” (Kurbanova 2010) due to the great latitude afforded privacy in
the family sphere. So, despite there being a law that could be used in cases of
abuse, many women have remained in abusive relationships because there is little-
to-no-protection afforded them for leaving. A 2012 shadow CEDAW report
constructed by a coalition of 98 Tajikistan civil society organizations made clear
that, key among the factors impeding women’s access to justice were:
• Inadequate legislation and lack of special law for prevention and protection
from domestic violence. Current Tajik legislation, including the Criminal

Code and Code of Criminal Procedure, has clear contradictions preventing
protection of victim’s rights (From de-jure Equality to de-facto Equality
2012, p. 13).
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• Imperfect legal framework for promotion of gender equality (p. 17).
After much campaigning by international and domestic civil society groups, the
Law on the Prevention of Family Violence was enacted in 2013. UN Women

(2013) described the key facets as including:
. . . abused spouses will no longer be the only ones who can file legal
complaints. Law enforcement officers will also be able to identify domestic
violence cases based on accounts from eyewitnesses or other parties. More-
over, those who commit violence, or even threaten to do so after divorce,
can be held accountable and punished.
Yet, a constellation of actors has pointed out that, despite this new law, domestic
violence still is not a specific crime in Tajikistan. The new law “does not
criminalize domestic violence, and if women wish to press charges against
perpetrators, those cases must be prosecuted under general provisions for vio-
lence, such as battery” (Center for Gender & Refugee Studies 2016, p. 65).8 An
International Partnership for Human Rights (2017) report notes that – despite
the 2013 law – there: lacks a clear definition of “family” for purposes of “family
violence”; is a failure to recognize all forms of domestic violence as crimes; lacks
routine enforcement of existing law; and lacks necessary supportive services for
victims, among other deficiencies. Rounding out the call for a better law, a 2015
report from the Special Representative of the OSCE Chairperson-in-Office on
Gender Issues, recommended “including domestic violence as a specific crime in
the criminal code” (Zeitlin 2015, p. 5).
It would be imprudent to place the lack of legal protections against violence
against women and girls in Tajikistan purely on the back of CEDAW’s soft
law approach to gender violence. The full causal spectrum of any type of
pervasive human rights violation is complex, as the ecological model of
violence against women well-establishes (Heise 1998, 2011). However, we
think it is fair to say that the full practical weight of international and
domestic law and civil society has been applied to Tajikistan with regards to
violence against women and girls and it appears that a soft law approach
clearly has not been sufficient.
So, what are the prospects for justice for those victims of gender violence who
live in countries with corollary laws? The answer is “Not good.” This answer lies
in why states evolve away from general laws and towards specific criminalization
of violence against women and girls – and not the other way around (Richards
and Haglund 2015). This answer is also a good reason why the international
legal framework needs to move past general soft law towards a universal and
specific criminalization of this violence.
One way a corollary law could block access to justice is through privileging the
preservation of the family unit over the protection of women against all forms of
violence. In 2005, Bulgaria adopted the “Protection Against Domestic Violence
Act.” However, after the passage of the law, civil society groups in Bulgaria
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continued to make the case that “Laws and criminal justice procedures do not
recognise [domestic violence] as a separate crime, and prosecutions have to be
brought under the general law of assault and battery or bodily harm” (Gender
Alternatives Foundation 2012, p. 27). A key part of this is that only victims can
file a complaint of abuse. What is wrong with complete reliance on victims to file
complaints? Much, it turns out. The NGO Gender Alternatives Foundation
describes the problem:
Light and medium bodily injuries, among other similar offenses, caused
within the context of domestic violence, are prosecuted in a private com-
plaint procedure, i.e. on the initiative of the victim . . . it is expected [of] the
victims of domestic violence – who are usually humiliated, threatened,
beaten, coerced and their life and health are in danger – to initiate private
criminal proceedings against their abusers and to become “private prosecu-
tors” to the perpetrators: an impossible option for a victim of domestic
violence who is usually only thinking how to physically survive and take her
children in order to save their life. The burden of proof would be upon her
and she would face all the difficulties of an expensive and a time consuming
judicial process which would require her to meet her abuser whom she just
managed to escape. . . (p. 27)
Indeed, Article 161(1) of the Bulgarian penal code provides that injuries that are
“inflicted on a relative of ascending and descending line, a spouse, brother or
sister” are prosecuted “on the basis of complaint by the victim.” Requiring
victims’ complaints for intra-familial violence is a way for the legal system to
privilege the family unit over victims. This can be deadly. Amnesty International
(2006) relates the story of “Vera” from Belarus, who was abused for 23 years by
her husband, Oleg, who would lock the two of them inside a room to perpetrate
abuse. Vera’s mother called police many times but, each time, recanted, as she
was afraid of Oleg’s vengeful threats. If she tried to protect Vera, she’d get
beaten too. Vera’s sister reported four hospitalizations of Vera due to Oleg’s
abuse. And, “On each occasion, Oleg, a former policeman . . . boasted that he
could bribe policemen and medical personnel so that his crimes would not be
reported” (p. 2). In 2005, Vera was found dead from hanging. Was Vera in a
situation to report her abuse?
When compared to other sections of the penal code, this bifurcation of the
official state response to violence in Bulgaria makes no sense as anything other
than a way to preserve patriarchal dominance in family units. For example,
under Article 163, violence against someone “in connection with their
national, ethnic or racial affiliation” does not require a victim-based complaint
and explicit ranges of imprisonment are set. The same goes with violence
committed during an assassination attempt of a public official (96(2)), hos-

tage-taking (97(2)), theft (Articles 198(4), 199(2)), attempt to invoke war
(99(2)), general negligence 124(1–4), threat of violence via blackmail (213a
(2)(3)(4), 214(3)), violence committed by negligence via fireworks and/or
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firearms (338(3)), and damage of transportation vehicles (340(3), 341, 341a
(4), 341b(3), 342(1–3)).
Bulgarian women are sent the clear message by this bifurcated state
response to violence that they, as sentient humans, are worth less than an
ancient, tainted ideal: the traditional ideal of a male-dominated “stable family
unit.” Unfortunately, this type of devaluation is not unique, as it is much the
same given by Russia’s 2017 decriminalization of domestic violence. The bill,
passed by a 380-3 vote in the Duma and signed into law by Vladimir Putin,
stipulates a penalty of an administrative fine for domestic violence except in
cases of repeat offenders. As Russian Duma member Vitaly Milonov, a
supporter of the legislation, put it:
I don’t think that we should violate the rights of family and sometimes a
man and a woman, wife and husband, have a conflict. Sometimes in this
conflict they use, I don’t know, a frying pan, uncooked spaghetti, and so on.
Frankly speaking what we call home violence is not home violence – it’s sort
of a new picture of family relations created by liberal media.
(Sebastian & Mortensen 2017)
The indignity to women doesn’t end there, unfortunately. The fine for beating
one’s wife is 40% less than for beating one’s children (Mangan 2017).
And thus, a state can pass a law with the words “domestic violence” in the name,
but not criminalize anything. As a result, the resulting corollary law not explicitly
criminalizing violence against women and girls is left to allow an uneven and
discriminatory state response to violence that leaves women at risk of sustained
abuse from which there is – given the reality of the dynamics of abusive relation-
ships – little-to-no hope of escape. The domestic normative gap, in this way, can
come with a cost. Finally, inasmuch as the existing soft-law international legal
system provides no binding demand that the corollary law situation be fixed, the
international normative gap is complicit in this costly domestic normative gap.9
2.4 The size and nature of the normative gap in domestic legal
systems
While we cannot assess the normative gap in international human rights law
addressing violence against women, we can look to domestic law for evidence
of the impact and influence of this gap. We begin doing so by first presenting
cross-national evidence of the size and nature of the normative gap. To assess
the presence of this normative gap, we utilize data from Richards and
Haglund (2015) that rates countries annually from 2007 to 2010 on a four-
point scale for each of four forms of violence: assessed are rape, marital rape,
domestic violence, and sexual harassment.10 Rather than provide an indicator

of the presence or absence of legal protections, these data are unique in that
they provide an assessment of the strength of legal protections using a four-
point ordinal coding scheme. For each of the four forms of violence, each
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country receives one of the following scores: (0: Nonexistent/Discriminatory),
(1: Incomplete/Weak), (2: Correlative), (3: Fully Provided For).
A score of 0 indicates there are no laws prohibiting the form of VAW being
considered or that the code of law is based on traditions that are fundamen-
tally biased against women. A country receives a score of 1 if a law exists that
prohibits one of the four forms of VAW being considered but the law is
incomplete or limited in scope. Incomplete laws include cases where the law
does not extend to all minority groups, customary law is contradictory to
national statutes and takes precedence in one or more minority groups, the
law provides for systematic light or reduced sentencing, or the law is written
to be unenforceable or difficult to apply. A country receives a score of 2 when
there are correlative laws in place. Countries receive a score of 3 when the
form of VAW is legally prohibited, this means that the state explicitly forbids
the type of violence being considered.11
To demonstrate evidence of the size and nature of the cross-national normative
gap in domestic laws, we compare in Figure 2.1 countries that provide an explicit
legal guarantee to those that provide a correlative legal guarantee. Displayed are
the number of countries with nonexistent/discriminatory laws, incomplete/weak
laws, correlative laws, and full legal protections in 2010 for each of our four
forms of VAW. Immediately, one can see there are a number of countries using
correlative legislation to address domestic violence and marital rape, instead of
specific legislation. In 2010, 18 countries addressed domestic violence, and 34
Figure 2.1 Legal protections addressing violence against woman, 2010.
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countries addressed marital rape, using correlative laws. One clear lesson here is
that the normative gap regarding violence against women and girls should not be
expected to be uniform across types of violence.
The more countries that use correlative laws instead of specific legislation with
regards to violence against women, the larger is the normative gap around that
form of violence. This is because these countries have – through CEDAW at the
minimum – made public attestations of support that women and girls should be
free from gendered violence. Thus, Figure 2.1 shows that the normative gap is
largest with regards to marital rape, with domestic violence following. This is
evidenced by the similarity in the number of states employing correlative and
specific legal guarantees against marital rape. For domestic violence, a good
number of states still need to make the leap to specific guarantees, but there is a
sizable difference in the number of states with correlative and specific guarantees.
Table 2.1 offers the regional distribution of the cross-national normative gap
shown in Figure 2.1.12 Each country that does not provide an explicit legal
guarantee addressing domestic violence or marital rape is listed by region.
Unmistakably, countries with correlative laws are not concentrated in any specific
region of the world. Indeed, these countries are quite regionally diverse. Just as
the size of the normative gap varies across forms of violence, its strength-of-
presence varies across regions, as well.
Countries that provide correlative laws are also diverse politically, as well as
geographically. For example, there is substantial variation in the level of demo-
cratic institutions in the countries listed in Table 2.1. Cingranelli and Richards’
(2010) empowerment rights index measures a state’s level of substantive and
procedural democracy. It includes seven democratically-oriented empowerment
Table 2.1 Countries with correlative laws by region, 2010
Regional Domestic violence Marital rape
Africa Cape Verde, Central African Benin, Cape Verde, Mali,

Republic, Chad, Equatorial South Africa
Guinea, The Gambia, Rwanda
Asia-Pacific Brunei, Cambodia, Fiji, Mar- Cambodia, Fiji, Japan, Kiribati,
shall Islands Kyrgyz Republic, Nauru,
Vietnam
Eastern Europe Belarus, Estonia, Georgia, Albania, Bosnia-Herzegovina,
Lithuania Bulgaria, Estonia, Latvia,
Lithuania, Russia, Ukraine
Latin America and Cuba El Salvador, Nicaragua, Para-
Caribbean guay, Peru, Saint Vincent and
Grenadines, Suriname,
Uruguay
Western Europe and Canada, Denmark, Finland Canada, Iceland, Italy, Luxem-
others bourg, Malta, Norway, Portu-
gal, Spain
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rights: freedom of foreign movement, freedom of domestic movement, freedom
of speech, freedom of assembly and association, workers’ rights, electoral self-
determination, and freedom of religion. The index ranges from 0 (no govern-
ment respect for any of these seven rights) to 14 (full government respect for all
seven of these rights). Using this index in conjunction with the VAW legal data,
we find that countries with correlative laws vary quite considerably in their
provision of democratic-oriented rights. In fact, the average empowerment
rights score for countries with correlative domestic violence laws is 8 and the
average empowerment score is 10 for those countries with correlative marital rape
scores. On average, then, the groups of countries with correlative laws can be
labelled as having partially-democratic and/or transitional regimes. And indeed,
by encouraging social mobilization, these are precisely the types of regimes in
which international human rights law is likely to have its largest impact (Simmons
2009). What this means is that the strategy of adopting a treaty explicitly
addressing violence against women should likely have significant and beneficial
effects in those regimes currently providing only correlative legal protections.
Are normative gaps in national legal protections associated with higher levels of
violence against women? While cross-national data collection efforts on the
prevalence of violence against women have grown substantially over the last
decade, much work remains to be done as most data are limited in one of two
ways. First, cross-national data on the prevalence of VAW are often temporally
limited, covering only a small number of years. Second, data on VAW prevalence
often only cover a subset of countries, with coverage of some regions being
particularly thin. This lack of coverage poses problems for conducting rigorous
data analysis, including problems in determining statistical reliability.
Given such limitations, our own evidence of the consequences of the national
normative gap in VAW is limited both temporally and spatially. In what follows,
we first assess the gap in national domestic violence and marital rape legislation
by looking at correlations between specific VAW legislation and both VAW
prevalence and societal attitudes about VAW. Then, we conduct a number of
statistical analyses assessing the influence of full VAW legal protections and
correlative legal protections on women’s rights outcomes.
To compare those countries that include specific provisions in their laws with those
countries that have more-general legislation, or no legislation, protecting women
from violence we utilize the World Bank Women, Business, and Law Group data on
laws and regulations protecting women from violence (World Bank 2016). These
data are available for 173 countries for a single year (2014). To assess the prevalence
of and attitudes toward VAW, we utilize the Organization for Economic Coopera-
tion and Development’s (OECD) Social Institutions and Gender Index (SIGI
2014), which provides cross-national measures of discrimination against women in
social institutions for 160 countries for a single year. We chose these data to assess the
presence of the normative gap, because although both datasets are limited tempo-
rally, these data were collected for the same year and to the best of our knowledge, are
the only available data providing information on specific legislation and both VAW
prevalence and attitudes for the same period of time (2014).
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The left panel of Figure 2.2 presents a cross tabulation of specific domestic
violence legislation and prevalence of domestic violence. The darker a cell’s
shading, the higher the percentage of countries falling in that cell, and vice
versa. The left-hand column is populated by countries without specific domestic

violence legislation. In the right-hand column are those countries with specific
domestic violence legislation. In the World Bank’s (2016) data, a country is
considered to have specific domestic violence legislation in place if domestic
violence legislation exists that protects women and covers physical violence,
sexual violence, emotional violence and economic violence, and protects unmar-
ried intimate partners. A country is considered not to have explicit domestic
violence legal protections if the law does not cover all forms of domestic violence.
The vertical axis displays three levels (low/medium/high) of domestic violence
prevalence for each country. Prevalence of violence (SIGI 2014) is measured as
the percentage of women who have experienced physical and/or sexual violence
at the hands of an intimate partner in their lifetime. The “low” category indicates
0–25% of women, “medium” indicates 26–50% of women, and “high” indicates
51–78% of women experiencing violence in their lifetime.
In the lower-right-hand cell of the left panel of Figure 2.2 are countries who
have specific domestic violence legislation compared with a low prevalence of
domestic violence. This accounts for 30.91% of the countries in the 173-country
sample.13 On the other hand, the lower-left-hand cell shows that only 14.55% of
countries without specific legislation in place have a low prevalence of domestic
Figure 2.2 VAW prevalence and attitudes by specific legislation.
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violence. That is, countries with specific legislation are twice as likely as those
without to have a low prevalence of domestic violence.
The World Bank and SIGI data do not provide an indicator of the pre-
valence of marital rape, so the vertical axis in the right panel of Figure 2.2
indicates attitudes on violence against women. Specifically, the values on the
vertical axis represent the percentage of women who agree with the idea that a
husband/partner is justified in beating his wife/partner under certain circum-
stances. The “low” category indicates that between 0–30% agree that violence
is justified in some circumstances, “medium” indicates 31–60% believe vio-
lence is justified in some circumstances, and “high” indicates 61–92% believe
violence is justified in some circumstances. The horizontal axis indicates
whether a state has specific marital rape legislation. A country without such
specific legal protection might be one in which legislation on rape and sexual
assault contains exemptions preventing spouses from being charged with the
offence, or maintains that there can be no crime of rape between husband and
wife or within marriage, or one where rape is not codified as a crime.
The lower right cell in the right panel of Figure 2.2 shows that 36.36% of
countries having specific marital rape legislation are also countries where 30% or
fewer of women believe violence by a husband or partner is justified in some
circumstances. This is also the modal attitudinal category for countries with
specific legislation. In contrast, among those countries with no specific marital
rape legislation, the modal category is “medium” (31–60% of women believe
violence is justified in some circumstances). Further, in only 6.06% of countries
without specific marital rape legislation did 30% or fewer women oppose the
justification of beating a female spouse – almost a full third of female respondents
fewer than in countries with specific legislation. As in Figure 2.1 and Table 2.1,
the associations shown in Figure 2.2 are simply that – associations, neither
assertions nor evidence of causal relationships. However, for there to be a causal
relationship such that specific laws bring better outcomes, it is necessary for these
associations to exist. Thus, we are encouraged to look further into the matter in
the next section.
2.5 Effects of the normative gap in domestic legal systems

So far, we have seen empirical suggestion of a relationship whereby explicit legal
guarantees against domestic violence and marital rape are associated with lower
prevalence of violence and lower acceptability of violence, respectively. In order
to more-rigorously examine the consequences of the normative gap in domestic
legal systems, in this section we use statistical analyses to examine whether, and
how strongly if so, the presence of a full legal protection (as opposed to a
correlative legal protection) is associated with better outcomes for women in
society.14 It is because we find evidence of the normative gap in national

domestic violence and marital rape legislation that our analyses focus on these
two forms of violence.
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In our statistical analyses, we utilize a number of variables to empirically
examine the relationship between specific VAW legislation and outcomes for
women.15 An independent variable (or, explanatory variable) is an indicator that
we expect will help explain the dependent variable (the thing we wish to explain).
Our primary independent variable of interest is derived from Richards and
Haglund’s (2015) four-category measure of states’ legal protections against
gender violence. For the purpose of comparing countries against one another,
the normative gap in domestic law is essentially the gap between countries with
correlative laws and those with specific laws. Thus, we created a variable with two
possible values: countries that have adopted full, specific legal protections related
to domestic violence or marital rape receive a score of “one”, whereas countries
with correlative laws in place receive a score of “zero.”16 Using this measure, we
are able to systematically compare whether countries with explicit legal protec-
tions have better outcomes for women than countries with only correlative
legislation. If countries with domestic correlative laws are shown to reliably have
worse outcomes for women than those with explicit guarantees, we would argue
there is danger in letting the international normative gap stand.
A dependent variable is the variable whose quantity or quality we seek to
explain. We examine a number of dependent variables in our analyses, all of
which represent outcomes related to the enhanced dignity of women. While data
on the prevalence of domestic violence or marital rape would be the ideal
outcome to examine, no such data exist cross-nationally for multiple years. The
lack of specific data on VAW outcomes makes the ability to conduct robust
statistical analyses problematic, if not entirely unfeasible. As such, we cannot
assess whether the presence of an explicit law (compared to a correlative law)
addressing domestic violence or marital rape is associated with lower levels of
domestic violence or marital rape. So, instead, we examine whether explicit
legislation is associated with other important development and health outcomes,
for which data exist cross-nationally for many years.
We look specifically at human development and female HIV rates. We use the
United Nations’ Human Development Index (HDI) as our indicator of human
development (United Nations Development Program 2016). This is an index
ranging continuously from 0 to 1, composed from the following sub-indicators:
life expectancy at birth, mean years of schooling and expected years of schooling,
and gross national income (GNI) per capita. Higher values on this index indicate
greater levels of human development. Our indicator of female HIV rates is the
percentage of women living with HIV out of all persons living with HIV in the
country (Richards and Haglund 2015, p. 147 FN 5). These two dependent
variables were selected for several reasons. First, we expect strong legal protec-
tions to be associated with higher levels of human development. This claim is
supported by the UN’s sustainable development goal (SDG) 5, achieving gender
equality and empowering all women and girls. The UN SDG 5 specifically
mentions the need for “legal frameworks, to counter deeply rooted gender-
based discrimination that often results from patriarchal attitudes and related
social norms.”17 When women experience violence in the home, they are less
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likely to participate in the public sphere, including education or the formal
economy, which provides women with important alternative social networks to
mobilize around issues that influence them. In fact, substantial costs of VAW are
attributed to lost productivity and lifetime earnings for women each year.18 We
expect that countries that have adopted strong VAW legislation provide legal
recourse for women, placing women in a better position to seek justice, escape
situations of violence, and participate in the formal economy, which should be
associated with higher levels of human development. Second, high VAW pre-
valence is associated with a heightened risk of contracting HIV/AIDS and other
sexually transmitted diseases (WHO 1997). We expect that strong legal protec-
tions should be associated with a lower prevalence of VAW, which subsequently
is associated with lower risk of HIV/AIDS. Also, the presence of strong VAW
legislation places women in a better position to pursue preventative healthcare
and develop social networks that facilitate the provision of information on health-
related issues. The adoption of strong VAW legal protections also represents
changing societal norms, providing an environment in which women are better
able to obtain necessary healthcare. Finally, both indicators (HDI and female
HIV rates) provide substantial cross-national and temporal coverage, allowing us
to assess variation between countries and across time via statistical analysis.
In order to ensure that the relationship between legal protections and women’s
outcomes is not due to some other, intervening, factor, we also include a number
of “control” variables in our model accounting for alternative explanations of
HDI and HIV outcomes. These control variables add context to our study of the
relationship between legal protections and HDI/HIV outcomes. First, we con-
trol for the level of gender-violence-related societal discrimination, or the social
acceptance of abuse against women in society. We use an ordinal variable from
Richards and Haglund (2015), on which countries can be assigned any of three
possible values: 0 (high levels), 1 (moderate levels), and 2 (low to nonexistent).
Second, we account for whether a country is majority Muslim or majority
Christian, as religious institutions and practices are argued to be associated with
violence against women (Narayan 1997; Weldon 2002). Third, we account for
gender violence policy in neighbouring countries, as norms and policies related to
VAW (and human rights, more generally) have been shown to diffuse regionally
(Berry and Berry 1999; Htun and Weldon 2012). Our indicator of diffusion is
the average strength of VAW laws in countries sharing a border with any
particular country in our sample.
Fourth, we include a variable indicating the number of years a country has
been party to CEDAW. If CEDAW indeed encourages social mobilization
(Simmons 2009), then we would expect that the longer a country is party to
the treaty, the better will be outcomes related to that treaty’s goals. Fifth, we
include a variable using gross national income (GNI) as a proxy indicator of state
capacity to provide better outcomes for women.19 Sixth, we account for a

country’s level of economic globalization as it is undetermined whether, in toto,
economic globalization creates an environment in which the advancement of
women’s rights becomes increasingly likely, or is ultimately detrimental to
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women (Richards and Gelleny 2007; True 2012). To do so, we include a variable
capturing merchandise trade (imports plus exports, divided by gross national
product) (World Bank WDI 2013). Seventh, we use data from Gleditsch et al.
(2002) to account for civil war, as violence against women is often exacerbated
by civil conflict.
Eighth, we include a variable denoting the percentage of women in parliament
(Inter-Parliamentary Unions’ Women in National Parliament Statistical Archive).
Greater descriptive representation of women has been shown to be associated with
better women’s outcomes (Thomas 1991; Lovenduski and Norris 2003). Ninth,
we include a variable representing levels of respect for women’s economic rights
(Cingranelli and Richards 2010) because women with opportunities outside the
home are able to develop alternative social networks and increased opportunities to
mobilize (Renzetti 2011). Finally, we include a number of regional variables
(Africa, Asia, and Latin America) because countries in these regions are often
associated with women’s outcomes that are different than other regions based on
factors (e.g. traditional customs outside of religion or state activities) that we fail to
account for with the other nine indicators. These regional variables take on a value
of 1 for countries located in each region, and 0 otherwise.
Table 2.2 presents results from our first set of statistical analyses. The first and
third columns are the results of regression analyses exploring the relationship
between the fifteen independent variables (each displayed in a row on the table)
and one of the dependent variables, human development (HDI). The second and
fourth columns represent the relationship between our second dependent vari-
able, female HIV rates and each independent variable. The first-row independent
variable (“specific legal protection”) is domestic violence in the first two columns,
whereas in the last two columns, it is marital rape.
Reported in the table are several key pieces of information. First, the letters
indicate the direction of the relationship between the independent variables in the
far left column and the dependent variables at the top. Positive relationships are
represented by P and p and negative relationships are represented by N and n.20
Second, we are interested in the extent to which these relationships are statisti-
cally reliable. Statistical reliability indicates that we are confident that the relation-
ship between an independent variable and dependent variable (HDI or female
HIV rates) is not entirely due to chance. To determine reliability, we utilize a p-
value threshold of 0.10, which indicates that we are at least 90% confident that
the relationship between the two variables is not due to chance. Bold capital
letters indicate that the relationship meets that test. For example, “P” represents
a statistically significant positive relationship and “N” represents a statistically
reliable negative relationship. On the other hand, “p” represents a statistically
unreliable positive relationship and “n” represents a statistically unreliable nega-
tive relationship. Consequently, we are most interested in findings displayed in
boldfaced capitalized letters.

Looking at the first row of results in Table 2.2, we see that the specific legal
address of VAW is reliably related to human development levels and female HIV
rates in all four models (as evidenced by the boldfaced capital letters next to
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Table 2.2 Influence of full legal protections on women’s outcomes
Domestic violence Marital rape

Female HIV Female HIV

HDI rate HDI rate
Specific legal P N P N
protection
Societal discrimination P P P p
Majority Muslim N P N N
Majority Christian N P n p
Contiguity P N P n
CEDAW party years P N n P
Empowerment rights P n P p
GNI (logged) – N – N
Trade P p N P
Civil war P N P n
Women in legislature P N P N
Women’s economic P n p p
rights
Africa N P N P
Asia N p p p
Latin America N P N N
N 282 274 192 186
R2 0.807 0.634 0.854 0.778
P = Statistically reliable positive relationship

p = Statistically unreliable positive relationship
N = Statistically reliable negative relationship
n = Statistically unreliable negative relationship
“specific legal protection” in each column). That is, in all four models – no
matter the type of law (domestic violence or marital rape) or outcome being
measured – the fact that a country has specific laws against gender violence,
instead of correlative laws, is a significant factor associated with outcomes
benefitting women. Put another way, having a specific domestic violence law or
marital rape law – instead of a correlative law – is associated with a higher HDI
score and lower female HIV rates; even controlling for 14 other factors. On the
other hand, how long a state has been party to CEDAW is reliably associated
with increased female HIV rates in the marital rape model. The percentage of
women in a national legislature fares better than CEDAW party years, as it is
statistically reliable in three of the four models and always in a beneficial
direction: lower female HIV rates and greater HDI. Finally, African countries
fared poorly in Table 2.2, being associated with lower HDI and greater female
HIV rates, even controlling for all the other factors in the table.
While Table 2.2 specifies the direction of the relationship between numerous
variables, it does not provide evidence of the size of these relationships.
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Figure 2.3 presents effect sizes of the statistically reliable variables from the
models in Table 2.2. The values presented in Figure 2.3 represent standardized
regression coefficients, showing the influence of a one-standard deviation
change in the independent variable (i.e. specific legal protection) on a one-

standard deviation change in the dependent variable (human development or
female HIV rates). Standardizing coefficients allows direct comparison of the
size of the coefficients across independent variables that are measured on
different scales. Bars extending to the right of the vertical zero line indicate a
positive relationship between the independent and dependent variable and bars
extending to the left of the zero line indicate a negative relationship. Longer
bars indicate greater change in either human development or female HIV rates
for a particular independent variable, relative to the change in human develop-
ment or female HIV rates of the other variables. Similarly, shorter bars indicate
less change.
The top row of Figure 2.3 represents domestic violence law results (columns
one and two in Table 2.2) and the bottom row represents marital rape results
(columns three and four in Table 2.2). The top right-hand chart of Figure 2.3
displays some interesting findings – notably, the presence of a specific domestic
violence law (bottom row on vertical axis, labelled “Specific Domestic Violence
Law”), as opposed to a corollary law, has the largest attenuating effect on female
HIV rates of all the variables included in the model; even more than the strength
of laws in neighbouring countries (contiguity), capacity (GNI), CEDAW ratifica-
tion years, and per cent of women in the legislature. More specifically, this chart
shows that the presence of a specific domestic violence law (as opposed to a
corollary law) is about twice as effective as an additional seven years of CEDAW
ratification (a one-standard deviation change in CEDAW ratification years) and
more than twice as effective as a 10% increase in the number of women in the
legislature (a one standard deviation change in the percent of women in the
legislature) in reducing the female HIV rate.21 That is, adopting specific domestic
violence legislation has not only a reliable, but also a strong influence on
women’s outcomes.
Similarly, the bottom row of charts in Figure 2.3 show that the adoption of
specific marital rape legal protections (as opposed to corollary protections) is
associated with higher levels of human development and lower female HIV rates.
While the lower left-hand chart shows the relationship between the control
factors empowerment rights, women in the legislature, and contiguity to have a
greater positive (enhancing) relationship with human development than having a
specific marital rape law. The presence of a specific marital rape law is more-
strongly related to greater levels of human development than are levels of VAW-
related societal discrimination.22 Figure 2.3 (top and bottom right-hand charts)
also shows that the difference in how a country’s CEDAW party-status relates to
female HIV rates implies that not all VAW laws affect outcomes equally, or in the
same way. In the context of marital rape laws, the longer a country has been party
to CEDAW, the higher its female HIV rates. With regards to domestic violence
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Figure 2.3 Influence of full domestic violence and marital rape laws on women’s outcomes (standardized regression coefficients).
laws, the longer a country has been party to CEDAW, the lower its female HIV
rates.
To better understand the relationship between the normative gap and specific
gender violence outcomes, we offer two additional analyses. First, we look at the
relationship between a specific legal guarantee against marital rape (independent
variable) and the prevalence of rape (dependent variable). We use a measure of
rape prevalence from the WomanStats Project (2017).23 This ordered variable
assigns countries one of five scores, with higher scores representing a higher
prevalence of rape:
0: rape is virtually nonexistent

1: rape is rare
2: rape is common
3: rape regularly occurs
4: rape is the norm
Second, we look at the relationship between full marital rape legal protection
(independent variable) and enforcement of VAW laws (dependent variable). Data
on the enforcement of VAW laws comes from Richards and Haglund (2015). On
this indicator, a score of 0 indicates that enforcement is rare or nonexistent, a
score of 1 indicates that enforcement is selective or uneven, and a score of 2
indicates that enforcement is routine or effective.
One difference from the model estimates reported in Table 2.2 is the inclusion
of additional control variables accounting for fertility rate, level of judicial
independence, federal/unitary state status, and transparency.24 These control
variables are important to include because they represent potential alternative
explanations of the dependent variables: rape prevalence and VAW law enforce-
ment. Fertility rate is a proxy measure of traditional attitudes toward women, as
scholars suggest that fertility rates often decline when women have greater
control over reproductive decisions and larger numbers of women enter the
formal economic sphere (Furuoka 2009).25 Judicial independence has been
found to be related to many different human rights outcomes, as an independent
judiciary provides a more effective legal recourse for victims because it maintains
autonomy from other governmental actors (Powell and Staton 2009; Conrad and
Ritter 2013). Federal states may have more uneven law enforcement due to
differences in enforcement across subnational political units. Finally, transparency
captures corruption in public office, and we expect enforcement and VAW to be
lower when there is rampant corruption in office (Transparency International
2010).
Otherwise, Table 2.3 can be read the same as Table 2.2. Importantly, specific
legal protection against marital rape (the first row in Table 2.3) displays bold
capitalized letters in the first and second columns of Table 2.3. The results
presented in the first column show that the presence of a specific protection
against marital rape (instead of the correlative legal protection) is reliably asso-
ciated with lower rape prevalence. CEDAW party years, trade (economic
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Table 2.3 Influence of full marital rape legal protections on rape prevalence and VAW
enforcement
Rape prevalence Enforcement
Full legal protection N P

Societal discrimination n P
Majority Muslim p N
Majority Christian n N
Contiguity n n
CEDAW party year N p
Empowerment rights p p
GNI (logged) P n
Trade N p
Civil war n n
Women in legislature p n
Women’s economic rights N p
Africa P N
Asia p n
Latin America P n
Enforcement N –
Fertility N p
Judicial independence p p
Federalism P P
Transparency N P
N 247 262
R2 0.454 0.323
P = Statistically reliable positive relationship

p = Statistically unreliable positive relationship
N = Statistically reliable negative relationship
n = Statistically unreliable negative relationship
globalization), VAW law enforcement, fertility rate, and government transparency

(lack of corruption) are also negatively and reliably associated with rape preva-
lence. In the second column, the presence of a specific legal protection against
marital rape is reliably associated with greater enforcement of gender-violence
laws. Lower VAW-related societal discrimination, federalism, and government
transparency (lack of corruption) are also positively and reliably associated with
better VAW law enforcement.
The two charts in Figure 2.4 can be read much like the charts in Figure 2.3,
with a few differences. First, marital rape is the only legal protection examined.
Second, the dependent variables are rape prevalence and levels of VAW-law
enforcement. Finally, the bars in Figure 2.4 represent probabilities. For example,
each of the bars in the left chart of Figure 2.4 represents – for each variable – the
change in the probability that rape is nonexistent or rare in a country, given a

one-standard deviation increase in the value of that variable, and simultaneously
taking into account all other variables in the model.26 Bars extending to the right
indicate that these factors increase the probability that rape is nonexistent/rare.
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Figure 2.4 Probability of nonexistent/rare rape and selective/routine enforcement

(ordered logistic regression).
Bars extending to the left indicate that these factors are associated with a lower
probability that rape is nonexistent/rare. The right-hand chart of Figure 2.4
shows the change in probability that enforcement is routine or selective (as
opposed to rare or nonexistent), given a one-standard deviation change for a
given variable, taking all other variables in the model into account.
The results from the left-hand chart of Figure 2.4 show that eliminating the
normative gap is associated with lower rape prevalence. Countries that have
specific legal protections in place against marital rape are around 26% more
likely than those with correlative laws to have rare or nonexistent rape prevalence,
taking into account all the other alternative explanations. This improvement in
the probability of rare/nonexistent rape prevalence is greater than an additional
seven years of CEDAW party status (which produces only a 1.9% improvement in
the probability that rape is rare/nonexistent). Additionally, lack of corruption
seems vital to ensuring low rape prevalence. A two-category increase on the 11-
category transparency indicator is associated with a 22.3% greater probability of
nonexistent or rare rape prevalence. As an example, consider New Zealand and
Japan. New Zealand specifically criminalizes marital rape in its national legisla-
tion, while Japan does not have legislation in place that explicitly criminalizes
marital rape (World Bank 2016). Both countries have been parties to CEDAW
since 1985. Government corruption is lower in New Zealand than Japan, as New
Zealand scores an average of 9.35 and Japan scores an average of 7.58 on the
transparency index (higher values indicate greater government transparency).
However on the rape prevalence variable, New Zealand scores a 2 (rape is
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common) and Japan scores a 3 (rape occurs regularly). While rape still occurs, its
prevalence is lower in New Zealand, a country with specific marital rape legisla-
tion in place and relatively lower government corruption.
Finally, in the right-hand chart of Figure 2.4, the presence of a specific marital
rape law is associated with a 7.3% increase in the probability of selective or
routine enforcement of VAW laws. Displaying a similar effect to the specific
marital rape law in Figure 2.4 is VAW-related societal discrimination. When VAW
societal discrimination improves (higher values indicate lower levels of societal
discrimination) by one-standard deviation (around 0.71 on the 0–2 scale), the
probability of selective or routine enforcement increases by 7.7%. Majority
Christian, majority Muslim, and African countries are reliably associated with a
lower probability of selective or routine enforcement of VAW laws. To illustrate,
contrast VAW enforcement in Chile and El Salvador. Chile has specific marital
rape legislation in place, but El Salvador does not specifically address marital rape
in the law, though marital rape may be considered a crime if the actions meet the
criminal code definition of rape. Chile ratified CEDAW in 1989, while El
Salvador has been a party since 1981. With respect to VAW enforcement, Chile
receives a score of two, indicating that enforcement of VAW laws is routine. On
the other hand, El Salvador receives a score of zero on enforcement, indicating
that enforcement is rare or nonexistent; the United States State Department
report for El Salvador in 2009 specifically mentions that “laws against rape were
not effectively enforced” (United States Department of State 2009). While
illustrative, this example shows that for a country with specific legislation in
place (Chile), enforcement of the law can be reliably more effective than in a
country with only correlative legislation in place (El Salvador).
2.6 Conclusion
The normative gap related to violence against women and girls is the gap
between the standard of dignity states have declared they wish for women and
girls, and the rules by which these same states are willing to be legally bound
to achieve that goal. It is the gap between rhetoric and reality. The results of
our conceptual and empirical analyses in this chapter strongly point towards
the conclusion that the persistence of this normative gap is a threat to the
human right of women to live a life free from violence or to obtain justice if
victimized.
While it is not possible, due to lack of existing data, to empirically assess the
nature and consequences of the international normative gap itself, in this
chapter we used what we call the “domestic normative gap” as a proxy with
which to evaluate what transpires as a result of gaps between rhetoric and
binding law. First, we found the size and nature of the domestic normative
gap to differ across types of violence and across geography. Second, we found
explicit legal guarantees (as opposed to general laws) against domestic violence
and marital rape to be reliably associated with lower prevalence of violence
and lower acceptability of violence, respectively. Further, our analyses showed
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that no matter the type of law or outcome being measured, the fact that a
country has specific laws against gender violence is a significant factor in
outcomes such as lower female HIV rates and greater human development.
And, time and again in our analyses, explicit legal guarantees against gender
violence were shown to be a more-effective safeguard of women’s rights than
how long a state has been part of the CEDAW framework. This last finding is
of particular significance given the current environment wherein CEDAW’s
ability to persist without a counterpart explicitly addressing violence against
women and girls is being assessed by many international actors. For our own
part, we can only conclude from our findings that a specific international
treaty specifying explicit, binding provisions protecting women and girls from
violence would make a valuable contribution towards greater objective enjoy-
ment by women and girls of their human rights to be free from violence and
to have recourse to justice if victimized.
Aside from that key finding regarding the normative gap, two other findings
from our analyses reinforce our conclusion that an explicit international VAW
treaty is desirable. First, we found evidence that the diffusion of laws addressing
violence against women affects outcomes such as HDI and female HIV rates.
Indeed, research on sexual harassment laws indicates that countries look to
neighbouring countries in their emulation and adoption of legislation. Such a
global diffusion of laws reinforces the call for a specific international instrument
on violence against women for two reasons. An important part of the strength
of international norms lies in homogeneity of concepts and application; also,
with the guidance of a universal norm (emanating from a specific international
instrument), domestic laws should diffuse somewhat evenly across countries,
providing a more equitable pattern of access to redress for this human rights
violation. Second, our previous work (Richards and Haglund 2015) demon-
strated that international law can be influential in the adoption of strong
gender-violence laws at the national level; particularly domestic violence laws.
Were it viewed in isolation, this finding may seem to make the case that
CEDAW is sufficient. However, this is not so. Pair that finding with our
discovery in this chapter (see Figure 2.1) that legal protections in gender-
based violence laws, apart from rape laws, are sorely lacking in most countries.
It then becomes clear that while CEDAW – which has been in force for over
35 years – helped change the picture of legal protections from abysmal to
lacking, it lacks the binding force (regarding violence against women and girls)
necessary to nudge domestic legal protections any further towards acceptability.
It is our conviction then, considering all our evidence, that something beyond
CEDAW is necessary for further progress on the issue of violence against
women and girls. Single-issue treaties (e.g. Convention Against Torture
(1984)) that have built on earlier omnibus treaties (e.g. International Covenant
on Civil and Political Rights (1966)) provide firm precedent for, in this case,
the creation of a binding international treaty explicitly addressing violence
against women and girls, and seems a logical path forward from the current
situation.
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Notes
1 The CEDAW framework uses “General Recommendations” for what is more-com-
monly called “General Comments.”
2 General Comments – Government Responses, CCPR A/50/40/Vol.1, ANNEX VI,

United States of America, Observations of States parties under Article 40, paragraph
5, of the Covenant, Observations on General Comment No. 24 (52), on issues
relating to reservations made upon ratification or accession to the Covenant or the
Optional Protocols thereto, or in relation to declarations under Article 41 of the
Covenant.
3 General Comments – Government Responses, CCPR A/50/40/Vol.1, ANNEX VI,
United Kingdom of Great Britain and Northern Ireland, Observations of States parties
under Article 40, paragraph 5, of the Covenant, Observations on General Comment
No. 24 (52), on issues relating to reservations made upon ratification or accession to
the Covenant or the Optional Protocols thereto, or in relation to declarations under
Article 41 of the Covenant.
4 www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=21382&LangID=E
5 www.ohchr.org/EN/Issues/Women/SRWomen/Pages/InternationalLegalFrame
work.aspx
6 An author’s inquiry to the VAW Secretariat about this matter received the following reply
on April 5, 2017:
The SRVAW is committed to full transparency. Please note that the responses
uploaded so far are only the ones that were sought, as a first step in the process of
collecting input, to the international and regional mechanisms addressing VAW.
So it would be incorrect to say that some CSOs submissions have been uploaded
while others not. None of the CSOs submissions have been uploaded as of yet.
We are currently working on all the reports that need to be presented at the June
session of the HRC and have been so far unable, for work load reasons, to upload
the 200+ submissiond (sic) received by CSOs. In addition, to add to the difficulty,
some of the submissions received were in the format of emails or consecutive
emails. You will understand that we have very limited capacity but are fully
committed to make sure that all submissions received will be uploaded on the
web in due time.
On August 13, 2017 the VAW Secretariat sent out an email to authors of submissions,
asking for clearance so that those submissions whose “format allows” could be published
online at the SRVAW website.
7 And some, through regional treaties, have made legally-binding commitments to do
so.
8 We acknowledge there exists some disagreement among advocates of women’s rights
about whether criminalization is an appropriate strategy to reduce violence against
women and girls. However, there is some reasonable support that criminalization
provides protection. International Partnership for Human Rights (2017, p. 69) notes
that “The CEDAW Committee has reiterated that all violence against women, includ-
ing domestic violence, needs to be criminalized, and urges Tajikistan to amend its
legislation.” A 2002 study in the United States found that in states where domestic
violence was a felony, as opposed to a misdemeanor, the odds are 1.59 times higher
that an officer will discover an incident (Dugan 2002, p. 22). In a cross-national study
of 196 countries, Richards and Haglund (2015, p. 119) find explicit criminalization of
violence against women to be associated with less gender inequality, higher levels of
human development, and lower female HIV rates.
9 Bulgaria signed the regional Istanbul Treaty in April 2016, but has not ratified it as of
writing – 1 year later.
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10 These data were gathered by analyzing multiple sources of information on legal
protections. The United States State Department (USSD) Reports on Human Rights
Practices provided the primary source of information. The information provided in
USSD reports was supplemented by information from criminal and penal codes, case
law, UN-based resources, NGO reports, and news accounts.
11 See Richards and Haglund (2015) for more detailed information on the coding rules
and decisions used to create these data.
12 These regions were defined using UN Statistics Division parameters.
13 The shading in each cell allows for easy comparison of the percentage of countries that
fall into various cells both across and within panels in Figure 2.2.
14 More specifically, we utilize regression analyses to examine the direction and size of
the relationship between specific legal protections and women’s rights outcomes.
15 Variables are elements that vary or change.
16 Our sample is limited to countries that have some form of legislation in place, either
the explicit legal protection (1) or general legislation that can be used to effectively
prohibit VAW (0).
17 See https://sustainabledevelopment.un.org/sdg5 for more on discussion of SDG 5.
18 See the 2003 study done by the National Center for Injury Prevention and Control at:
https://www.cdc.gov/violenceprevention/pdf/ipvbook-a.pdf
19 GNI is omitted from the models in which HDI is the dependent variable because GNI
per capita is included as a part of the HDI measure.
20 In a positive relationship between two variables, as one variable increases in value
the other variable also increases. Likewise, both variables can simultaneously
decrease. So, in a positive relationship, both variables move in the same direction
(increase or decrease). For example, a positive relationship might be one where, as
strength of legal guarantees increase, there is a corresponding increase in the
human development index. In a negative relationship, one variable is decreasing
in value while the other is increasing in value. So, in a negative relationship both
variables move in different directions. For example, a negative relationship might
be one where, as the strength of legal guarantees increase, the female HIV rate
decreases.
21 A one standard deviation change in the domestic violence and marital rape legal
protections is around 0.4 and 0.5 respectively, indicating that a two-standard
deviation change represents the movement from corollary laws to full legal
protections.
22 Of course, it may be the case that societal discrimination is positively associated with
the adoption of full marital rape legal protections. However, modelling that process is
beyond the scope of this chapter.
23 The specific legal guarantee variable is the same as we used above, taking on two
values, where a 1 indicates the presence of specific marital rape legislation. A zero
indicates the absence of specific marital rape legislation, with marital rape being applied
through use of correlative legislation in practice.
24 Another important difference between these two models and the models presented in
Table 2.2 is the nature of the dependent variables. The dependent variables in these
models are ordered, making estimation of an ordered response model appropriate. We
estimate ordered logit models with robust standard errors (results presented in
Table 2.3).
25 In statistics, a proxy variable is a variable that is not in itself directly relevant, but serves
in place of an unobservable or immeasurable variable. It has a strong correlation with
the variable of interest.

26 We only report changes in predicted probabilities for the statistically reliable variables
in the models presented in Table 2.3.
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Acknowledgement
The authors wish to thank Susan Naseri at the University of Connecticut and
Bailey Posante at the University of Kentucky for their valuable research assistance.
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3 Normative Developments
on Violence Against Women
in the United Nations System

Rashida Manjoo1
3.1 Introduction
Historically the phenomenon of violence against women was regarded primarily
as a private matter and as a social issue. In later years it was discussed as a welfare
issue, a criminal justice issue, subsequently as a public health issue, and in more
recent times also as a human rights violation that disproportionately impacts
women and girls.2 The invisibility regarding this widespread and pervasive human
rights violation, in concrete human rights terms, has been attributed to the male
domination of the human rights sector and also the male-centric approach in the
development of international human rights law.3 Feminist academic literature has
exposed the shortcomings and challenges of international human rights law, both
in its origin and in its more modern development, with regard to respecting,
protecting and fulfilling women’s human rights.4 The shortcomings in interna-
tional human rights laws have led to women being seen as synonymous with the
family and the family being seen as part of the private sphere. The first United
Nations Special Rapporteur on Violence against Women (SRVAW) stated that
“. . .this is largely a consequence of the traditional division between the public
and private spheres and the emphasis in human rights discourse on public sphere
violations” (SRVAW, 1999, p. 4, para. 6). Such views have resulted in the
differential treatment accorded to women’s lives, realities and their experiences
of human rights violations, including acts of violence, due to both the protection
of the family unit, and to patriarchal notions linked to the viewing of women as
wives, mothers, victims and the property of men.5
Within the United Nations (UN) the articulation of violence against women
has been premised upon similar views in numerous standard-setting documents,
through soft law developments, including resolutions adopted by the General
Assembly, the Human Rights Council, the Declaration on the Elimination of
Violence against Women (DEVAW), the Beijing Declaration and Platform for
Action, or General Recommendations and General Comments by certain treaty
bodies. The core principles underpinning such articulations include: violence

against women is a form of discrimination and it is a manifestation of the
historically unequal power relationships between men and women, which has
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74 Rashida Manjoo
led to domination over and discrimination against women by men and to the
prevention of the full advancement of women (DEVAW, 1994, preamble).
Generally, recommendations in respect of remedies, emanating from within the
UN system, have ranged from a primary focus on the development of legal

remedies, including civil, criminal and matrimonial remedies; highlighting the
need for specific provision of responsive services by the criminal justice and the
social welfare sectors; and the enhancing of health sector responses, among
others. Adopting a holistic approach to violence against women, the governmen-
tal and non-governmental sectors have been encouraged to include remedies such
as the provision of shelters, counselling services, emergency hotline services, legal
aid, and perpetrator programmes, in addition to law reform measures (UN
Secretary-General Report, 2006).
Despite positive developments in respect of standard-setting, awareness-raising
and advocacy, the issue of impunity has loomed large in the discourse on violence
against women. National, regional and international developments have illu-
strated concerns about the lack of, or minimal attention to, both State and non-
State actor accountability for this human rights violation (SRVAW, 2013).
Regional jurisprudential developments, particularly in the Inter-American
human rights system, have led to a greater focus on the principle of State
responsibility to act with due diligence in response and prevention measures for
human rights violations (Velasquez Rodriguez, 1988). Understanding State
obligations regarding acts of violence, whether perpetrated by State or non-
State actors, and articulating what this entails in respect of prevention, protec-
tion, investigation, prosecution, punishment and transformative redress for
women, has become another aspect of the work being carried out by UN
mechanisms and also civil society organizations.6
The focus of the resolutions, declarations, General Recommendations, Gen-
eral Comments, and concluding observations as discussed in this chapter,
reflects evolving norm developments and standard setting. It should be noted
that these documents serve as consensus statements by Member States and
treaty bodies respectively. They are not legally binding, but are of persuasive
value in influencing international norms regarding the elimination of violence
against women and in providing normative standards for States to follow at the
national level.
To capture the breadth of soft law developments over the span of four decades
the structure of the chapter is as follows: Section 3.2 will provide a historical
perspective on the UN developments on violence against women, as well as
examining the standard setting by different UN mechanisms. Section 3.3 will
address the work of a few relevant treaty bodies, and conclusions on UN
developments will be highlighted in Section 3.4.
3.2 Development of standards on violence against women

The principles of dignity, equality, freedom, justice and peace underpin the
Universal Declaration on Human Rights (UDHR). It also includes the right to
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United Nations Normative Developments 75
life, liberty and security of the person in Article 3, and the right not to be
subjected to torture or to cruel, inhuman or degrading treatment or punishment
(UDHR, 1948). Notwithstanding the inclusion of such values and rights in a
document that is almost 70 years old, the normative developments to date on the
issue of violence against women have been slow and soft law development within
the UN system has been the practice.
Prior to, and during, the UN Decade for Women, from 1975 to 1985, the
issue of violence against women in general, and more specifically domestic
violence, was high on the agenda of women’s rights activists. Advocacy at the
World Conferences on Women, held in Mexico City in 1975 (GA Mexico
Conference Report, 1975) and Copenhagen in 1980 (GA Copenhagen Confer-
ence Report, 1980), served as a catalyst for the adoption in 1985 of a General
Assembly resolution on domestic violence (GA Resolution, 1985). The Third
World Conference on Women, held in Nairobi in 1985 (GA Nairobi Conference
Report, 1985), the expert group meeting on violence in the family with special
emphasis on women, held in Vienna in 1986, and the Expert Group meeting on
violence against women held in Vienna in 1991, further highlighted the global
nature and concern regarding violence against women.7
In 1991, the Commission on the Status of Women (CSW), made a
recommendation to the Economic and Social Council (ECOSOC) regarding
the adoption of a framework for an international instrument that would
explicitly address violence against women (SRVAW, 1995, p. 7, para. 26). In
the same year the Economic and Social Council adopted resolution 1991/18,
recommending the development of a framework for an international instru-
ment that would explicitly address the issue of violence against women
(ECOSOC Resolution, 1991). This resolution mandated the Secretary-Gen-
eral to convene a meeting of experts to discuss the possibility of preparing an
international instrument. The expert group meeting was held in 1991 in
Vienna and a report was produced in 1992. The report reflects that the
participants discussed the development of a convention on violence against
women; prepared a draft declaration on the elimination of violence against
women; discussed the elaboration and strengthening of CEDAW General
Recommendations and an optional protocol; and considered the need to
appoint a thematic rapporteur on violence against women (UN Secretary-
General Report, 1992).
The draft declaration on violence against women that was developed at the
1991 meeting was submitted to the CSW and to the ECOSOC in 1992
(ECOSOC Report, 1992). Subsequent to an inter-sessional working group the
revised draft declaration was tabled at the 1993 CSW session (ECOSOC Report,
1993) with the ECOSOC urging the General Assembly to adopt the draft
declaration on the elimination of violence against women (ECOSOC Resolution,
1993). The 1993 World Conference on Human Rights also called for the
adoption of the draft declaration (Vienna Declaration and POA, 1993). The
Declaration on the Elimination of Violence against Women was adopted without
a vote by the General Assembly in resolution 48/104, in December 1993 and in
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1994 the Commission on Human Rights adopted resolution 1994/45 establish-
ing the mandate of the Special Rapporteur on Violence against Women, its causes
and consequences.
The explicit recognition, by the international community, of violence

against women as a human rights violation, occurred at the UN World
Conference on Human Rights in Vienna in 1993. The Vienna Declaration
and Programme of Action, adopted by the Conference, noted that “the
human rights of women and of the girl-child are an inalienable, integral and
indivisible part of universal human rights” (Vienna Declaration and POA,
1993, para. 18). Although the Vienna Declaration and Programme of Action
did not specifically define violence against women, it did call for the elimina-
tion of violence against women in public and private life, the elimination of all
forms of sexual harassment, exploitation and trafficking in women, the elim-
ination of gender bias in the administration of justice and the eradication of
any conflicts which may arise between the rights of women and the harmful
effects of certain traditional or customary practices, cultural prejudices and
religious extremism (ibid, para 38).
Emphasizing that the elimination of violence against women in all areas of life,
both public and private, was central to the attainment of women’s human rights,
the Vienna Conference called on governments and the UN to take the steps
necessary for the realization of this goal, including by integrating the human
rights of women “into the mainstream of United Nations system-wide activity”
(ibid, para. 37).
Further political articulations of commitments by Member States, on the
issue of violence against women, emerged in other UN-driven conferences
including the 1994 International Conference on Population and Development
and its Programme of Action, held in Egypt (GA Cairo Conference Report,
1995). This conference acknowledged the links between violence against
women and reproductive health rights and called on governments to take legal
and policy actions to respond to and prevent violence against women and girls.
In addition, the 1995 Beijing Declaration and Platform for Action included
three strategic objectives to be taken by State and non-State actors regarding
violence against women i.e. to take measures to eliminate violence against
women, to study the causes of that violence in order to take preventative
measures, and to eliminate trafficking in women (GA Beijing Conference
Report, 1996).
3.2.1 Commission on the status of women

The Commission on the Status of Women, a UN body which was established in
1946 (ECOSOC Resolution, 1946), has been instrumental in initiating and
developing foundational normative frameworks on women’s human rights. Both

the Convention on the Elimination of All Forms of Discrimination against
Women and the Declaration on the Elimination of Violence against Women
owe their existence to the work of the Commission. As noted above, in 1991 the
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CSW recommended that the ECOSOC develop a framework for an international
instrument explicitly addressing violence against women, in consultation with the
CEDAW Committee. The outcome was the development of a declaration on
violence against women which was adopted by the General Assembly.

The CSW has focused on the issue of violence against women and/or girls as a
priority theme on three occasions: the theme of gender-based persecution was
the focus of its 1998 session; the elimination of all forms of discrimination and
violence against the girl child was addressed in the 2007 session; and the
elimination and prevention of all forms of violence against women and girls was
considered at the 2013 session (CSW agreed conclusions, 1998, 2007, 2013).
The agreed conclusions adopted by the CSW at these three sessions reflect several
commonalities. The 1998 conclusions are more specific with regard to the steps
that governments should take to address violence against women, whereas the
2007 and 2013 conclusions include a greater emphasis on the intersection
between economic, social and cultural rights and violence against women.
Regarding the provision of services, the 2013 conclusions call for compre-
hensive, coordinated, interdisciplinary, accessible and sustained multi-sectoral
services and programmes and responses at all levels for all victims and survivors
of all forms of violence against women and girls. All three conclusions discuss
traditional, customary and religious practices that are harmful towards women,
with a particular emphasis on female genital mutilation and its health conse-
quences. The 2013 conclusions are less explicit about female genital mutilation,
but refer broadly to practices and customs that discriminate against or have a
discriminatory impact on women. States are also urged to ensure that the
provisions of multiple legal systems comply with international human rights
obligations, commitments and principles, including the principle of non-
discrimination.
Greater emphasis on the development and funding of national plans to end
violence against women is reflected in the 1998 conclusions. The 2013 conclu-
sions recommend that governments develop and implement effective multi-
sectoral national policies, strategies and programmes. The collection of data to
inform the development, revision and implementation of laws, policies and
strategies is reflected in the 1998 and 2013 conclusions. The 2013 conclusions
address the critical area of improving the evidence base, through multidisciplinary
research and analysis on the structural and underlying causes of, the cost of and
risk factors for, violence against women and girls.
The 1998 conclusions are very specific regarding the investigation and prose-
cution of acts of violence against women, ensuring the gender-sensitive develop-
ment of an integrated framework that includes criminal, civil, evidentiary and
procedural provisions for addressing the multiple forms of violence against
women, and ensuring the accountability of relevant law enforcement agencies
for the implementation of such policies. The prevention of and response to all
forms of violence against women and girls, including sexual and gender-based
violence, in armed conflict and post-conflict situations, including through inves-
tigation, prosecution and punishment of perpetrators to end impunity; removal
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of barriers to women’s access to justice; the establishment of complaint and
reporting mechanisms; the provision of support to victims and survivors; afford-
able and accessible health-care services; reintegration measures; and steps to
increase women’s participation in conflict resolution and peacebuilding processes

and post-conflict decision-making, are highlighted in the 2013 document.
The work of the CSW over the past decades is an indicator of an expansive and
growing refinement of the understanding of the issue of violence against women,
its causes and consequences, through a holistic human rights lens; a focus on
State responsibility to act with due diligence in the elimination of all forms of
violence against women, including addressing its causes and consequences; and
ultimately, the acknowledgement that violence against women is a widespread
and pervasive human rights violation that requires the attention of all States.
Despite its recommendation in 1991, the CSW has been silent on the issue of a
legally binding international instrument – post the adoption of a non-binding
declaration on violence against women in 1993. Unfortunately, the CSW which
is the premier UN policymaking body regarding normative standards on
women’s rights, is increasingly becoming a contested forum for political negotia-
tions on women’s human rights, with a growing practice of “clawbacks” on gains
made. The articulation of broad and sweeping statements in the outcome
documents can be viewed as an attempt to deflect from addressing the reality of
widespread and persistent violations of women’s human rights globally.
3.2.2 UN Commission on Human Rights and its successor, the Human

Rights Council
In their resolutions on violence against women, several UN mechanisms call
upon States to exercise due diligence to prevent and investigate acts of violence
against women and girls and to punish the perpetrators. States are broadly called
upon to develop civil and criminal measures to address offender accountability; to
ensure victim safety; and to provide redress and justice measures that victims can
access effectively.
Over the years, the resolutions of the Commission on Human Rights have
reflected an unequivocal articulation of violence against women as a human rights
violation. Issues addressed in resolutions include: recognition of the continuum
of violence at both the temporal and spatial levels; practices constituting violence
against women are articulated more expansively; proposed actions to eliminate
violence are more detailed; and the identification of causes and consequences
which will provide a nuanced understanding of the intersection of violence with
other systems of subordination and discrimination. In addition, more emphasis is
placed on the obligation of States to refrain from engaging in violence against
women and to exercise due diligence to prevent, investigate and punish acts of
violence against women and to provide access to just and effective remedies and
specialized assistance to victims.8 For example, the resolution adopted in 2000
incorporated the language of the Declaration on the Elimination of Violence
against Women, with the Commission emphasizing the duty of governments to
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refrain from engaging in violence against women; to exercise due diligence to
prevent, investigate and, in accordance with national legislation, punish acts of
violence against women; to take appropriate and effective action concerning acts
of violence against women, whether those acts were perpetrated by the State, by
private persons or by armed groups or warring factions; and to provide access to
just and effective remedies and specialized assistance to victims (Commission on
Human Rights Resolution, 2000).
The Commission created the mandate of Special Rapporteur on Violence
against Women, its causes and consequences, in 1994 through a resolution on
the question of integrating the rights of women into the human rights mechan-
isms of the UN and the elimination of violence against women. In the resolution,
the Commission outlined the main scope of the mandate and invited the Special
Rapporteur to carry out the mandate within the framework of the Universal
Declaration of Human Rights and all other international human rights instru-
ments, including the Declaration on the Elimination of Violence against Women
(Commission on Human Rights Resolution, 1994).
In 2006, the Human Rights Council replaced the Commission on Human
Rights and essentially retained in its resolutions the wording of its predecessor.
The Council has adopted numerous resolutions which largely revolve around the
theme of accelerating efforts to eliminate all forms of violence against women,
including the issue of due diligence regarding prevention, protection and the
provision of remedies for women who have been subjected to violence. Among
other resolutions are: the integration of the human rights of women throughout
the UN system; preventable maternal mortality and morbidity as a human rights
issue; the elimination of discrimination against women; trafficking in persons,
especially women and children; the issue of human rights, sexual orientation and
gender identity; the protection of human rights defenders who provide support
to women who have been subjected to violence; and, the role of freedom of
opinion and expression in women’s empowerment.9
In addition to resolutions adopted on violence against women, the Council has
adopted the Universal Periodic Review (UPR) process that reviews the human
rights record of all Member States once every four years. This process is an
opportunity for States to provide information on measures being taken to meet
their human rights obligations, while the ensuing dialogues and recommenda-
tions provide a forum for States to reflect on their obligations and practices and
to accept or reject recommendations made by their peers (UPR Database). The
issue of violence against women is raised in all reviews, and States are questioned
about the adequacy of responses and prevention measures in respect of violence
against women. In one instance of a substantive approach taken in the UPR
process in relation to Hungary, reviewing States recommended that the State
must take steps to prevent gender-based violence and ensure protection of and
access to justice for victims of domestic violence, rape and sexual harassment;
draft and implement specific legislation prohibiting domestic violence and marital
rape; take measures to prevent trafficking and protect trafficking victims; and
adopt a comprehensive gender equality law that contains a definition of
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discrimination against women in accordance with CEDAW (Report of Working
Group, UPR Hungary, 2011, paras 29–93).
The resolutions and recommendations in the UPR process reflect a compre-
hensive approach to articulating concerns about a pervasive human rights viola-

tion. Nevertheless, despite the proliferation of such political consensus
statements, as adopted in non-binding resolutions, the practice of most States is
not reflective of a commitment to adopting and implementing global norms and
standards as articulated in resolutions and recommendations.
3.2.3 UN General Assembly

The General Assembly has adopted numerous resolutions relating directly or
indirectly to the issue of violence against women, its causes and consequences.
The adoption of two resolutions on domestic violence in 1985 and 1990 was the
first attempt by the UN to articulate a response to a pervasive global problem
that had no specific normative standards in international human rights law. The
1985 resolution situates domestic violence within the perspective of crime
prevention and criminal justice in the context of socio-economic circumstances;
highlights the abuse of alcohol, narcotic drugs and psychotropic substances as
exacerbating factors in domestic violence; requests the Committee on Crime
Prevention and Control to examine the problem of domestic violence; and invites
States to ensure a coordinated response from the health, welfare and justice
sectors (GA Resolution, 1985, preamble and para. 4). The 1990 resolution
highlights the serious lack of information and research on domestic violence;
recognizes the concern of States about domestic violence as an urgent problem
deserving focused attention and concerted action; highlights the need to focus on
all victims of domestic violence; notes the long-term effects of domestic violence,
including the increased tolerance to violence in society as a whole; and requests
the Committee on Crime Prevention and Control to prioritize the topic of
domestic violence on the agenda of the Ninth Congress (GA Resolution, 1990,
preamble and para. 6).
A groundbreaking development was the adoption in 1993 of the Declaration
on the Elimination of Violence against Women (DEVAW, 1993), another soft
law development, but importantly, the first document on violence against women
adopted by consensus by the international community, via the General Assembly.
The Declaration provides a comprehensive framework in terms of definition,
scope, obligations of States to act with due diligence and the role of the United
Nations in addressing this human rights violation. It is a non-legally binding
document and it has no specific monitoring or review mechanism to assess
compliance with the standards articulated. In the preamble to the Declaration,
the General Assembly recognizes that the root causes of violence against women
are patriarchy and the subordination of women; and that violence against women
is a manifestation of historically unequal power relations between men and
women, which has led to domination over and discrimination against women by
men and the prevention of the full advancement of women (ibid, preamble). The
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Declaration defines violence against women as any act of gender-based violence
resulting in harm to women, including psychological abuse, threats or coercion,
whether occurring within the family, the community, at work, or in institutions,
and violence perpetrated by the State (ibid, Articles 1 and 2).

The Declaration also articulates specific recommendations in respect of actions
to be taken by States in Article 4, and for the UN system in Article 5. The
extensive list of recommended State action includes ratifying CEDAW, exercising
due diligence to prevent, investigate and punish acts of violence against women,
passing necessary legislation to punish violence against women, drafting a
national plan to prevent violence against women, providing assistance to victims
of violence (subject to resource availability), endeavouring to change social and
cultural patterns that tolerate violence against women, and including information
on violence against women in their reports to CEDAW (ibid, Article 4). Accord-
ing to Article 5, the main role of the UN should be one of coordination of
international efforts and provision of support in developing new guidelines for
the prevention of violence against women (ibid, Article 5). It has been argued
that the Declaration has served as a consensus statement, despite lacking any
binding authority on States, and that it does have “significant weight” in
influencing international norms concerning the elimination of violence against
women (Chinkin, 2012, p. 448).
Several General Assembly resolutions on women address crime prevention and
criminal justice measures to eliminate violence against women, including domes-
tic violence; violence against migrant workers; trafficking; traditional or custom-
ary practices affecting the health of women and girls; crimes committed against
women in the name of honour; rape and other forms of sexual violence,
including in conflict and related situations; female genital mutilation; gender-
related killings of women; and protection of human rights defenders. These
resolutions reiterate normative developments relating to the recognition of
violence against women as a human rights violation and States’ due diligence
obligation to end impunity.10 For example, General Assembly Resolution 67/
144 (2012) elaborates on State obligations by highlighting that civil remedies,
including protection orders, must include adequate enforcement by police and
the judiciary; that orders of protection must include criminal sanctions, and
shelters, psychosocial services, counselling and other types of support services
must be provided in order to avoid re-victimization. In addition, in its resolutions
61/143 and 62/133, the General Assembly requested the Statistical Commission
and the Secretary-General to develop a set of indicators on violence against
women, in order to assist States in assessing the scope, prevalence and incidence
of this human rights violation (GA Resolutions 2006, 2007).
The numerous General Assembly resolutions that have been adopted reflect
both conceptual clarity and specificity in articulating standards in attempts to
provide guidance to Member States in understanding State obligations and the

responsibility to act with due diligence in responding to and preventing violence
against women. Unfortunately, the direct impact of such resolutions in national
level developments is difficult to establish, considering the levels of impunity that
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continue to exist and the pervasive and continuing nature of the violation. The
provision of guidance through such resolutions may have resulted in legal and
service provision developments in some countries, including laws, policies,
mechanisms and programmes, but the lack of adoption of universal norms and
standards, raises questions about the effectiveness and sustainability of such an
approach.
3.2.4 UN Security Council

The engagement of the Security Council regarding violence against women is
reflected in the resolutions on women, peace and security that it has adopted.
Security Council Resolution 1325 was adopted in 2000 and focuses on the
incorporation of a gender perspective in conflict resolution by addressing the
special needs of women; mandating that both human rights and humanitarian
laws are used to address women’s rights; and, highlighting the critical role of
women in peacebuilding. In this resolution, the Security Council recognized that
women and children account for the vast majority of those adversely affected by
armed conflict; called for specialized training for all peacekeeping personnel on
the protection, special needs and human rights of women and children in conflict
situations; and urged the Secretary-General to increase women’s representation in
conflict-resolution efforts.
Resolution 1325 is aimed broadly at empowering women in relation to issues
of conflict prevention, resolution and reducing gender-based violence through
mainstreaming gender-specific concerns in peace and security policy considera-
tions. It recognizes that effective institutional arrangements to guarantee
women’s and girls’ protection and full participation in the peace process can
significantly contribute to the maintenance and promotion of international peace
and security. The resolution also calls on all parties to armed conflicts to take
special measures to protect women and girls from gender-based violence, parti-
cularly rape and other forms of sexual abuse, and all other forms of violence in
situations of armed conflict and emphasizes the responsibility of all States to put
an end to impunity and to prosecute those responsible for genocide, crimes
against humanity, and war crimes, including those relating to sexual violence
against women and girls.
In subsequent resolutions, the Security Council has focused on protecting
civilians in general, particularly those who have been displaced; stressed the
importance of education for preventing sexual exploitation and trafficking in
humans; condemned all acts of sexual exploitation, abuse and trafficking of
women and children by military, police and civilian personnel involved in UN
operations; and recommended a policy of zero-tolerance for such violations.
The Security Council also raised concerns about the obstacles to women’s
participation in the prevention and resolution of conflicts, including due to

violence, intimidation, and discrimination. To ensure effective focus on the
issue of sexual violence in armed conflict situations and their aftermath, the
Security Council suggested that the Secretary-General appoint a special
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representative to provide coherent and strategic leadership and to work effec-
tively to strengthen existing UN coordinating mechanisms in addressing sexual
violence in such situations.11
Due to both normative and implementation gaps, further resolutions adopted

by the Security Council on women, peace and security attempt to strengthen the
understanding of international sexual violence crimes beyond the existing provi-
sions of the Geneva Conventions, thereby bringing it closer to definitions as
reflected in the Rome Treaty governing the International Criminal Court. For
example, Security Council Resolution 1820 of 2008 highlights that rape and
other forms of sexual violence can constitute war crimes, crimes against human-
ity, or genocide, and calls on Member States to exclude sexual violence crimes
from amnesty provisions during conflict resolution processes. Resolution 1960 of
2010 encourages the Secretary-General to include in his annual reports to the
Security Council, detailed information on parties to armed conflict that are
credibly suspected of committing or being responsible for acts of rape or other
forms of sexual violence. The intention is that this list will be used as the basis for
more focused UN engagement with the named parties, including the application
of sanctions against the parties involved.
It is apparent that the identification of both normative and implementation
gaps has led to successive resolutions, including more expansive provisions, and
including the adoption of accountability mechanisms. Unfortunately, it is also
apparent that sexual violence in conflict situations is still pervasive and wide-
spread, and this again begs the question about the utility of a soft law approach
to addressing the pervasive problem of violence against women.
3.2.5 UN Special Rapporteur on Violence against Women

The mandate of Special Rapporteur on Violence against Women, its causes and
consequences (SRVAW) was created in 1994 by the Commission on Human
Rights in its resolution 1994/45. The Commission requested all governments to
cooperate with and assist the SRVAW in the performance of the tasks and duties
mandated and to furnish all information requested. Subsequent resolutions by
the Commission, and since 2006, by the Human Rights Council have continued
to extend the mandate of the SRVAW, with many resolutions expanding the
conceptual understanding and content in respect of concerns about violence
against women. For example the 2013 Human Rights Council resolution 23/
25 focuses specifically and more extensively on the issue of sexual violence in
conflict situations.
In the discharge of the mandate, the SRVAW is required to prepare annual
thematic reports and also reports on country visits. The annual thematic reports
presented to the Commission on Human Rights by the first SRVAW between
1994 and 2003, are closely aligned to conceptual developments of the objectives
set out in the resolution by which the mandate was established. These reports
focus on different manifestations of violence, its causes and consequences,
including violence in the family; in the community; perpetrated or condoned by
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the State, including in times of armed conflict; and violence in the transnational
sphere. The reports expanded the scope of the mandate to consider the intersec-
tion and continuum of violence in the private and public spheres, with a focus on
race, ethnicity, culture, migration, trafficking and economic empowerment. Con-

cerns about ineffective and discriminatory policing and gender-biased court and
sentencing processes, were acknowledged as preventing women from accessing
justice and obtaining effective redress. In particular, a more expansive approach
was suggested in understanding violence against women as a health, legal,
economic, developmental and human rights problem (SRVAW Report, 1996,
para. 132).12 In her final report, in January 2003, the first SRVAW stated that
the greatest achievements during her mandate had been in awareness-raising and
standard-setting, including with regard to the limitations of the criminal justice
framework, and the setting of new standards for addressing violence as a product
of social, political and economic inequality (SRVAW, 2003, para. 71). However,
she acknowledged that, despite these successes, very little had changed in the
lives of most women during her tenure (ibid, para. 71).
The second SRVAW, in her first report to the Commission on Human Rights
in 2004, articulated the main objectives of her tenure as ensuring effective
protection of women’s rights and equal access to justice for women; monitoring
the effectiveness of strategies to end violence against women; and ensuring that
accountability mechanisms are accessible to women seeking redress. In subse-
quent reports, she also addressed the political economy of women’s human
rights and the development of effective implementation and enforcement
strategies, including by exploring the utility of the due diligence standard for
enforcing state responsibility, and the development of indicators on violence
against women. The reports between 2004 and 2009 consistently reiterate
discussions of women’s economic, social and cultural rights, and how the
denial of these rights contributes to discrimination and violence against
women. By situating women’s human rights within a neo-liberal political
context, the SRVAW, in her final report in 2009, raised concerns about the
disconnect between the way States view violence against women and how they
address gender inequality in general. Noting that women neither share equal
social and economic rights with men, nor have equal access to productive
resources, she articulated how capital markets exacerbate women’s social and
political inequality in a way that impacts their health rights; food and water
security; education and housing; livelihoods and labour markets; migration; and
conflict, peace and nation-building.
A 15-year review of the mandate provides a comprehensive overview and
analysis of the functioning of the mandate from 1994 to 2009, including
information on the issues covered in the thematic reports, country mission
reports and communications to governments. The review concludes that the
two mandate holders over that period acknowledge that, despite advances in the
creation of tools to enable and enhance compliance, lack of compliance and
implementation continues to pose a serious challenge (SRVAW, 15-year review
report, 2009).
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The third SRVAW assumed her functions in August 2009 and continued to
build on the work of her predecessors, especially with regard to the themes of
intersectionality and State responsibility, while investigating less mainstream
aspects of violence against women, such as transformative reparations for

victims of violence; the continuum of violence from the home to the transna-
tional sphere; gender-related killings of women; violence against women with
disabilities; the issue of violence and incarcerated women; violence as a barrier
to the effective exercise of citizenship; the normative gap in international
human rights law; and the continuing challenges in responding to and pre-
venting all forms of violence against women. The reports generally further
develop the principle of State responsibility to act with due diligence as a legal
framework for the elimination of violence against women, and notes the gap
between the normative acceptance of State responsibility for violence and the
practical reality for women seeking redress. For example, the 2013 report
presented to the Human Rights Council further deepens the theme of State
responsibility to eliminate violence against women and concludes that, while
most States accept that violence against women is a pervasive and systemic
human rights violation facing countries, this has not led to the adoption of
coherent and sustainable solutions. A crucial recommendation is that State
responsibility to act with due diligence must be considered as a dual obligation
i.e. (a) as a systemic responsibility, whereby States create responsive and
effective systems and structures that address the root causes and consequences
of violence against women; and (b) as an individual responsibility, whereby
States provide victims with effective measures of prevention, protection, pun-
ishment and reparation. Importantly, the report stresses that accountability of
perpetrators, as well as State authorities (for failure to protect from and prevent
harm) should be the norm.
The work and reports of the SRVAW over 23 years reflect substantive con-
ceptual clarity; the development of model legislation on domestic violence;
refining the understandings of State responsibility to act with due diligence;
providing an expansion of the understanding of violence against women as a
barrier to the realization of all human rights and to the exercise of effective
citizenship; and identifying and expanding on the issue of the normative gap in
international human rights law in respect of violence against women, among
others. It is apparent that a vast amount of work has been undertaken over two
decades by the three mandate-holders – through thematic reports that provide
conceptual clarity and the highlighting of country level situations through
country visit reports and the communications sent to States. Individual, institu-
tional, communal and structural factors have been identified that are the causes
and consequences of violence against women, and legal and non-legal issues have
been dealt with, through the adoption of a comprehensive and universal
approach to the elimination of violence against women. Unfortunately, the

clarification of norms and standards and the provision of guidance has not
resulted in effective measures by States in the quest to eradicate violence against
women.
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3.3 United Nations treaty body system
Within the UN treaty system, there is no binding international human rights law
that explicitly and specifically addresses the issue of violence against women. In
addition to the political articulations, consensus statements, resolutions and
declarations noted above, there have been numerous non-legally binding soft
law developments within the UN human rights treaty body system.13 The
absence of legally binding obligations on States to respond to or to eliminate
violence against women has been raised as a source of concern (SRVAW reports
to the Human Rights Council and General Assembly, 2015). Specialized regional
treaties on violence against women and cases adjudicated by the regional human
rights courts are the only hard law developments to date.
Treaty monitoring bodies within the UN system contribute to the soft law
developments through their reviews of State party reports, their interactive
dialogues, their concluding observations and recommendations, and the develop-
ment of General Recommendations and Comments. Beyond the monitoring
function, treaty bodies can also investigate complaints, known as the commu-
nications procedure, and make findings that highlight gaps in compliance with
normative standards emanating from treaty obligations. Treaty bodies do not
have the power to ensure the enforcement of their findings and recommenda-
tions. Furthermore, there is no enforcement mechanism, such as an international
human rights court, to ensure compliance with human rights treaty obligations.
In their interpretative work, numerous treaty bodies have made observations and
recommendations regarding the nature of obligations of the State regarding
violence against women, whether perpetrated by State or non-State actors. In
particular, the Committee on the Elimination of all forms of Discrimination
against Women, the Human Rights Committee and the Committee against
Torture, have demonstrated a responsiveness to interpret relevant treaty provi-
sions to include women’s experiences of violence, as discussed below.
The Committee on Economic, Social, and Cultural Rights which monitors
compliance with the International Covenant on Economic, Social and Cultural
Rights approaches violence prevention, protection and remedies largely in terms
of the right to health. For example, the Committee’s General Comment 14 on
the right to the highest attainable standard of health acknowledges that achieving
the right to health for women requires protecting them from domestic violence.
The Committee, in General Comment 16, states that implementation of Article
10 requires States parties to provide victims of domestic violence, who are
primarily female, with access to safe housing, remedies and redress for physical,
mental and emotional damage. Furthermore, the International Convention for
the Protection and Promotion of the Rights and Dignity of Persons with
Disabilities reflects a gendered approach and in Article 16, it explicitly includes
an obligation on the State to protect persons with disabilities from exploitation,

violence, neglect, and abuse. In addition, the International Convention on the
Elimination of all forms of Racial Discrimination in Article 5, and the Interna-
tional Convention for the Protection of the Rights of All Migrant Workers and
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Members of their Families in Articles 2 and 16, consider violence in terms of
liberty and security, as well as in terms of discrimination and equal and effective
protection of the law. Violence against women is now generally viewed as a
matter of State responsibility (Cook, 1994), primarily due to the influence of the
principle of due diligence (Velasquez-Rodriguez, 1988).14
3.3.1 UN Committee on the Elimination of All Forms of Discrimination

against Women
The Convention on the Elimination of All Forms of Discrimination against
Women (CEDAW) is the specific international treaty on the rights of women.
This binding convention was adopted by the General Assembly in 1979 and
entered into force in 1981. It does not directly address all manifestations of
violence against women, with the only exception being Article 6, which requires
States parties to take all appropriate measures, including legislation, to suppress
all forms of traffic in women and exploitation of prostitution of women
(CEDAW, 1979, Article 6). In addition, Article 16 addresses the issue of forced
marriage and child marriage, now acknowledged as a form of violence. According
to the Travaux Preparatoires for CEDAW, efforts to include more specific
references to violence against women in the Convention were unsuccessful.
Belgium proposed that the phrase “and attacks on the physical integrity of
women” be added to Article 6 (Rehof, 1993, p. 92). The delegate from Pakistan
objected to the proposal (CSW record of meeting, 1976), thus the proposed
amendment was withdrawn due to the lack of support (Rehof, 1993, p. 91).
CEDAW links a State’s obligation to protect women from violence in terms of
obligations to eliminate discrimination against women generally, including
through the interpretation of Articles 2, 5, 10 and 16, among others. Article 2
(e) in particular creates a due diligence obligation on the part of States to prevent
discrimination against women, with General Recommendation 28 providing
more specific guidance as to what due diligence means for States. The Commit-
tee makes it clear that the due diligence requirement entails obligations of means
or conduct and also obligations of results (CEDAW General Recommendation
28, 2010, para 9). Thus the Committee has adopted an interpretation that treats
violence against women as a matter of discrimination, and not first and foremost
as a human rights violation in and of itself, with discrimination as one of the
causes and consequences of violence against women.
The absence of specific treaty provisions addressing all forms of violence against
women, led the Committee to embark on a soft law interpretative approach,
through the adoption of General Recommendations 12, 19, 30, and 35 specifi-
cally, to address the issue of violence against women.15 Due to concerns about
the lack of information on violence against women in States’ reports, in 1989 the
Committee adopted General Recommendation 12 urging States to include

information on actions taken to prevent violence against women in their periodic
reports. It is argued that many States’ Parties did not consider violence to be
covered by CEDAW and hence did not include information in their reports, prior
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to the adoption of General Recommendation 12 (Rehof, 1993, annex, para 50).
In 1992, the Committee adopted General Recommendation 19 wherein it
interpreted the definition of discrimination in Article 1 of the treaty as encom-
passing violence against women.

General Recommendation 19 defines violence against women as violence that
is directed against a woman because she is a woman or that affects women
disproportionately, and notes that the term violence is not restricted to physical
violence alone, but also includes mental and sexual harm, and even threats of
such acts, coercion and other deprivations of liberty. Furthermore, it includes a
list of specific rights that violence against women violates, including the right to
life; right not to be subject to torture or to cruel, inhuman or degrading
treatment or punishment; the right to liberty and security of the person; the
right to equality in the family and equal protection under the law, among others
(CEDAW General Recommendation 19, 1992, para 11). In addition, it creates a
due diligence obligation for States if “they fail to act . . . to prevent violations of
rights or to investigate and punish acts of violence” (ibid). The obligation to act
with due diligence requires States to take positive actions, including the respon-
sibility to prevent, protect, prosecute and punish acts of violence towards women,
while also providing redress to victims (ibid).
In August 2017, the Committee adopted General Recommendation 35 on
gender-based violence against women, to update General Recommendation 19
on violence against women. Among others, the changes in the updated docu-
ment include: new language used to identify the issue; the clarification of both
general and specific human rights obligations; the reinforcement of the inter-
dependency of rights and also the links between articles of the CEDAW and
violence against women; detailed guidance to States in respect of general legisla-
tive measures, prevention, protection, prosecution and punishment, reparation,
coordination, monitoring, data collection; and international cooperation. Para-
graph 14 of the General Recommendation reiterates manifestations, causes and
consequences of violence against women, including due to new and emerging
practices. In paragraph 2 the Committee asserts that the prohibition of gender-
based violence against women has evolved into a principle of customary interna-
tional law, and that General Recommendation 19 has been a key catalyst for this
process (CEDAW, General Recommendation 35, para 2). General Recommenda-
tion 30 addresses the issue of gender-based sexual violence that occurs in times of
conflict and post-conflict and highlights that in conflict and post-conflict situa-
tions, States Parties are bound to apply the Convention and other international
human rights and humanitarian law when they exercise territorial or extraterritor-
ial jurisdiction.
Unlike other treaties, CEDAW did not, at the time of its adoption, include a
provision for the monitoring body to hear individual complaints regarding the
implementation of and compliance with the Convention. During the drafting of

CEDAW, it was suggested that a complaint mechanism be included, but some
delegates objected on the basis that complaints procedures were only for serious
international crimes such as apartheid and racial discrimination, rather than
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discrimination against women (UN Women, History of the Optional Protocol,
undated). Consequently, a complaint procedure was not included in the Con-
vention. The subsequent adoption of the Optional Protocol to CEDAW in 1999
and its entry into force in 2000, allows for the Committee to address individual
communications. The Optional Protocol has two procedures that allow the
Committee to receive complaints from individuals and groups and to initiate
inquiries of grave and systemic violations of CEDAW. States parties can opt out
of the inquiry procedure at the time of ratification (CEDAW Optional Protocol,
1999, Article 10). The Optional Protocol requires a State’s consent to conduct
country visits to undertake confidential inquiries (ibid, Article 8). Very few
inquiries have been conducted and the opacity of the inquiry process makes it
difficult to determine whether it has the potential to be a more useful tool for
addressing violence against women.
The Optional Protocol to CEDAW only requires States parties to give due
consideration to the Committee’s final views, and does not mandate compliance
with recommendations made to the State Party (CEDAW Optional Protocol,
1999, Article 4). This principle is also applicable to the concluding observations
issued by the Committee. CEDAW’s concerns about implementation, monitor-
ing, and enforcement of recommendations, led to the Committee designating a
rapporteur or working group to investigate State party implementation of recom-
mendations, thus requiring States to follow up with the Committee on certain
recommendations within a specified timeframe (Hellum and Aasen, 2013, p. 52).
Furthermore, the Committee also includes general information on its follow-up
efforts in its annual report to the UN General Assembly, possibly to influence
State Party compliance with its recommendation.16
In respect of the individual complaint mechanism, to date 119 cases have been
registered since the Optional Protocol came into effect in 2000. Of these, 40 are
currently pending and 53 have been finalised, with the CEDAW Committee
finding 29 to be inadmissible and 24 admissible. Of the 24 admissible cases, 22
resulted in a violation decision and two in a non-violation finding. The Commit-
tee has finalised 14 communications focusing on violence against women. Such
decisions cover forced sterilization, domestic violence, rape, sexual harassment,
stalking, threats to life and security of the person and abusive conditions in
detention, among others.17 In its decisions, the Committee’s interpretative
views reflect a dual focus i.e. on the level of legislative protection as well as the
substantive requirements for implementation (Hellum and Aasen, 2013, page
46). Also, the Committee extensively references General Recommendation
No. 19, in addition to relevant CEDAW articles to find that States parties may
be responsible for the actions of State and non-State actors if they fail to act with
due diligence.
Numerous academic articles have analysed the CEDAW findings emanating
from the communications procedures.18 Due to word count limitations, only a

few decisions are discussed in this chapter. A leading case on violence against
women addressed by the CEDAW committee is A.T. v. Hungary (CEDAW
Communication 2/2003). The petitioner indicated that the State’s procedures
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for protecting her were ineffective, lengthy and did not provide for protection
orders. The Committee utilized General Recommendation 19 in finding that the
failure to provide a mechanism for protection orders against perpetrators of
domestic violence was a violation of CEDAW, due to the State not enacting
sufficient legislative measures to combat sex-based stereotypes to eliminate dis-
crimination against women in the family setting. Despite legislative changes made
by Hungary, the Committee found that the measures were insufficient to meet
the State’s obligations under CEDAW. In Goekce v. Austria (CEDAW Commu-
nication 5/2005) and Yildirim v. Austria (CEDAW Communication 6/2005),
the Committee referred to Articles 1 and 5 of CEDAW and found that the
practical realization of the principle of equality of men and women, and of
human rights and fundamental freedoms, requires both the articulation of
political will, through laws and policies, and also the support of State actors
through effective implementation (ibid). The Committee has also relied on
Article 5 in a communication involving rape i.e. Vertido v. the Philippines
(CEDAW Communication 18/2008) where the Committee affirmed that States
can be held responsible for judicial decisions which violate the Convention, and
stressed that “stereotyping affects women’s rights to a fair and just trial” (ibid,
para 8.4). The Committee highlighted that relying on gender stereotypes can
lead to a failure to provide an effective remedy to the victim.
The monitoring function of the Committee requires States parties to submit
reports on their compliance with CEDAW obligations. The Committee’s con-
cluding observations on reports provide guidance to States’ on their obligations
to act with due diligence to address violence against women by referring to
States’ duties to respect, protect, promote and fulfil women’s right to be free
from violence (Chinkin, 2012, p. 467). Among others, the Committee has
recommended the general obligation to “ensure that criminal, civil, administra-
tive and labour laws are not discriminatory and that they provide an effective legal
framework for combatting violence against women” (ibid, p. 468). Specific
directives include calling on States to repeal penal law provisions that undermine
the value of women’s testimony in rape and sexual assault cases, or allow for
defences of honour, or place the burden on victims to decide on the conse-
quences of a violent criminal act (ibid). The Committee has also highlighted how
States contribute to a climate of impunity and condoning of violence, due to the
failure in holding offenders accountable (ibid, p. 469). Unfortunately, compli-
ance with the CEDAW reporting requirements has been problematic with States
parties’ reports being inaccurate and late, as there are no sanctions for failing to
submit accurate and timely reports. To improve compliance with the Commit-
tee’s requests for information the Committee appointed a Rapporteur on Follow-
Up on Concluding Observations in 2008. National level changes in some
contexts seem to indicate that the Committee’s concluding observations and
follow-up mechanisms have had some effect on response and prevention mea-
sures by some States, but have also not had any impact in other States.19
The internal challenges faced by the Committee include time constraints to
review reports and enter into dialogues with States, resulting in delays in
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processing reports that are submitted. States Parties may wait two years for their
reports to be reviewed (Hellum and Aasen, 2013, p. 33). In addition, the efficacy
of the Committee is impacted by numerous other factors, including the content
of its observations and recommendations; the fact that these are not legally
binding and consequently the Committee’s impact on State compliance; and the
issue of reservations and their effect on the obligations of States. It is argued that
the Committee produces documents with varying levels of generality or specifi-
city (ibid, p. 50) and that the recommendations or concluding observations are
not considered legally binding by some States (ibid, p. 51). Consequently this
may result in confusion at the national level, lack of effective implementation, and
a disincentive to meaningful cooperation on the part of States. Another common
concern raised in CEDAW concluding observations is that, despite the existence
of binding obligations on countries that are a party to the Convention, facially
discriminatory laws persist, with reservations on key articles of the Convention
being used to justify non-compliance, especially with provisions on enforcement
measures in Article 2 and provisions on equality in marriage and family life in
Article 16 (ibid, p. 56). While the Committee has found that some reservations
violate the object and purpose of the treaty, the legal implications of this are
unclear (ibid, p. 57).
The adoption of General Recommendations, the review of country reports in
pursuit of the monitoring function, and the processes under the Optional
Protocol, have provided the Committee with the opportunity to expansively
interpret several articles of CEDAW, including those on discrimination, stereo-
typing, and harmful practices, which can be applied to violence against women.
As noted in respect of other UN mechanisms, it appears that the work of the
Committee has not effectively led to a reduction of violence against women, or to
a universal adoption of norms, standards and measures which may lead to the
eradication of violence against women. In paragraphs 6 and 7 of the newly
adopted General Recommendation 35, the Committee acknowledges that vio-
lence against women remains pervasive in all countries of the world, with high
levels of impunity, and that in many States, legislation on the issue remains non-
existent, inadequate and/or poorly implemented.
3.3.2 UN Human Rights Committee

The International Covenant on Civil and Political Rights was adopted in 1966
and entered into force in 1976. It does not directly address violence against
women but it protects a broad range of civil and political rights which are
applicable in the violence against women sphere. The monitoring body i.e. the
Human Rights Committee has addressed issues of violence against women in its
concluding observations to States’ Parties reports. It has addressed States’ obliga-
tions using relevant articles of the Covenant linked to the right to life, freedom
from torture or to cruel, inhuman or degrading treatment, and the right to
liberty and security of the person. The Committee has paid attention to violence
against women in its General Comments and has stated that men and women
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have equal rights under the Covenant (HRC General Comment 4 and 28) and
equality before tribunals (HRC General Comment 32), and has urged States
Parties to respond appropriately to violence against women (HRC General
Comment 35).
Through General Comment 4, the Committee recognized a due diligence
requirement for States parties, including an obligation to prevent discrimination
based on sex, thereby requiring protection and affirmative action by the State.
General Comment 28 replaced General Comment No. 4, and notes that States
parties should ensure that traditional, historical, religious, or cultural attitudes are
not used to justify violations of women’s right to equality before the law and to
equal enjoyment of all Covenant rights. In addition, in interpreting Article 7
which prohibits torture and cruel, inhuman and degrading treatment, the Com-
mittee in General Comment 28 also requests States to include information
relevant to violence against women in their reports on, among others, the
burning of widows and dowry killings; national laws and practice regarding
domestic and other types of violence against women, including rape; measures
taken to eliminate female genital mutilation; measures to eliminate trafficking of
women and children and forced prostitution; laws or practices that deprive
women of their liberty; and legal provisions or practices that restrict women’s
right to freedom of movement. In interpreting the right to security of the person
under Article 9, the Committee has defined this as freedom from bodily injury,
including fatal injury and has highlighted that “States parties must respond
appropriately to patterns of violence against categories of victims such as
. . .violence against women, including domestic violence . . . and violence against
sexual minorities” (HRC General Comment 35, para 8).
The complaints procedure under Article 1 of the First Optional Protocol of the
Covenant has been used with respect to issues of violence against women. The
Human Rights Committee has found violations of the Covenant with respect to
communications involving violence against women, some in the immigration
context. For example, in M.I. v. Sweden, a woman who was beaten, raped by
police and forced to marry, because she is a lesbian, the Committee found that
Sweden would violate Article 7 of the Covenant prohibiting torture or cruel,
inhuman or degrading treatment if it deported her to Bangladesh (HRC Com-
munication 2149/2012, paras 2.4–2.9). The Committee noted that impunity
and the existing laws criminalizing homosexuality, had resulted in increased
stigmatization of homosexuals and limited protection from and investigation of
persecution, torture and other cruel, inhuman or degrading treatment or punish-
ment (ibid, paras 7.5–7.6).
3.3.3 UN Committee Against Torture

The Convention against Torture and other Cruel, Inhuman or Degrading Treat-
ment or Punishment has been interpreted to apply to certain manifestations of
violence against women as torture, as per the interpretation of the definition of
Article 1. The Convention defines torture as:
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Any act by which severe pain or suffering, whether physical or mental, is
intentionally inflicted on a person for such purposes as obtaining from him
or a third person information or a confession, punishing him for an act he or
a third person has committed or is suspected of having committed or

intimidating or coercing him or a third person, or for any reason based on
discrimination of any kind, when such pain or suffering is inflicted by or at
the instigation of or with the consent or acquiescence of a public official or
other person acting in an official capacity
(CAT, 1984, Article 1)
The Convention requires that all acts of torture or attempts to commit torture
be criminal offences punishable by appropriate penalties (ibid, Article 4).
The Committee against Torture has interpreted the treaty to include situations
involving non-State actors, including in violence against women situations such
as rape, domestic violence, female genital mutilation, and trafficking. It has done
this through the adoption of General Comments, which reflect its concern about
acts of violence against women which meet the threshold of torture. General
Comment 2 was adopted in 2007 and General Comment 3 was adopted in 2012.
These General Comments place emphasis on the obligation of States to prohibit,
prevent and redress torture and ill-treatment in different settings, including those
where the State’s failure to respond appropriately may increase the risk of harm.
The treaty does not allow for any derogation from its obligations and thus the
obligation is activated if the State knew or had reasonable grounds to believe that
torture was taking place within its jurisdiction and failed to prevent, investigate,
prosecute and punish the perpetrators (CAT, 1984, Article 2). General Comment
No. 2 emphasizes that the due diligence obligations to prevent and protect apply
to gender-based violence, including rape, domestic violence, female genital
mutilation, and trafficking. The Committee urges States’ Parties to include
information in their reports on challenges in preventing violence against
women, including violence within the home, and to include information on
steps they have taken to prevent and punish such acts. General Comment 3
addresses the right of redress for acts of torture including restitution, compensa-
tion, rehabilitation, satisfaction and guarantees of non-repetition. It urges States
parties to address structural factors, including gender-based discrimination, that
give rise to the violation and to ensure that measures in both judicial and non-
judicial proceedings are sensitive to the needs of women and girls.
Individual complaints heard by the Committee against Torture relating to
violence against women have included challenges to threatened deportation to
countries where the complainants allege a serious risk of being tortured, in
violation of Article 3 of the Convention. In addition, the Special Rapporteurs
on Torture have interpreted the Convention to include issues of violence against
women issues within the scope of the torture mandate,20 and a dedicated
thematic report on strengthening the protection of women against torture, has
been issued by one of the mandate-holders (SR Torture report to the HRC,
2008).
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3.4 Conclusion on UN developments
This chapter has highlighted the expansive efforts of different UN policymaking
mechanisms in their efforts to provide conceptual clarity; contributions to norm

development and standard-setting; the highlighting of both general and specific
State obligations to act with due diligence to respond to and to prevent violence
against women; and the provision of guidance through a dialogical process in
reporting and monitoring initiatives. While efforts to include language in
CEDAW about violence were unsuccessful during the drafting stage, in the 36
years since its adoption, many non-binding UN documents, including General
Recommendations, resolutions, declarations, reports from Special Procedure
mandates and others, have increasingly focused on violence against women to
address the various manifestations, causes and consequences of violence against
women, whether in times of peace, conflict, post-conflict and so on. Due to word
count limits this chapter does not include information on the work of numerous
UN agencies that provide technical assistance which also contributes to standard-
setting at the national level in some countries.
The understanding of violence against women, its impact and guidance for
addressing it has evolved through the work of various international and regional
frameworks and mechanisms over four decades. The development of international
frameworks and mechanisms on violence against women has been characterized
by growing recognition of the impediment that violence against women presents
to women’s full equality and to the exercise of full and effective citizenship. Thus,
any analysis of UN efforts to address violence against women cannot simply focus
on the work of one entity to establish the gains, gaps and challenges that exist.
There are numerous sources of norm development and monitoring that contri-
bute to changes that may be occurring at the regional and national level.
As discussed above, many UN mechanisms have contributed to the under-
standing of violence against women and recommended strong and specific action
to combat it. The Declaration on the Elimination of Violence against Women
was the first political consensus documents adopted by the General Assembly on
violence against women that provides a comprehensive framework at the interna-
tional level. It is over two decades old and yet there is resistance to updating it
into a binding convention on violence against women. The work of the Commis-
sion on Human Rights, the Human Rights Council and the General Assembly
reflect a continuous and on-going practice of adopting resolutions. It is unclear if
the cumulative effect strengthens norms or creates confusion, if not dilution. The
work of the Special Rapporteurs on Violence against Women also reflect sub-
stantive contributions to norm developments, including the clarification of State
obligations to act with due diligence in responding to and eliminating violence
against women. Other thematic mandates under the Special Procedures of the
Human Rights Council have also examined and contributed to the discourse on
violence against women, from the specific perspectives of their mandates.21
The effectiveness of existing treaty body procedures in addressing violence
against women is limited because of the reliance on the lack of specific provisions
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on violence against women and thus a reliance on non-binding interpretations of
the treaty. The approach to violence against women as a general matter for
human rights promotion and protection is important, but in terms of under-
standing violence against women as a specific human rights violation, linked to

civil, political, economic, social and cultural rights, such a general conceptualiza-
tion falls short in effectively addressing this specific and pervasive human rights
violation. Additionally, there may not be a shared understanding within treaty
bodies that acts of violence against women may constitute human rights viola-
tions including acts that amount to torture. For example, the security of the
person and right to life approach of the Human Rights Committee does not
capture the universe of injuries that constitute violence against women. The
international criminal law regime, including the Rome Statute of the Interna-
tional Criminal Court and the Protocol to Prevent, Suppress and Punish Traffick-
ing in Persons, especially Women and Children (Palermo Protocol), rely on
criminal justice remedies to address violence against women and these treaties
cover only certain aspects of gender-based violence. Thus, the State response is
confined largely to articulating criminal remedies, and not transformative reme-
dies that potentially change the realities that women face.
Any analysis of norms developments cannot ignore the difference between the
soft law developments within the UN human rights system, as compared to the
hard law developments within three regional human rights systems. As discussed
in other chapters in this publication, violence against women has been addressed
more specifically and comprehensively in binding treaty obligations at the regio-
nal level. Two regional human rights systems have adopted treaties that specifi-
cally address violence against women (Inter-American Convention on the
Prevention, Punishment, and Eradication of Violence against Women, 1994;
Council of Europe Convention on Preventing and Combating Violence against
Women and Domestic Violence, 2011), while the third regional system incorpo-
rates the issue within a treaty on women’s rights (Protocol to the African Charter
on Human and Peoples’ Rights on the Rights of Women in Africa, 2000).
Important case law has emerged from the commissions and courts as established
in these systems and the legally binding treaties and jurisprudence have been a
positive influence in some national legal systems that have domesticated regional
human rights standards. Regional frameworks and mechanisms operate in parallel
to the international system and include binding and non-binding instruments,
and courts and commissions that hear complaints, monitor implementation and
issue decisions and recommendations. Unlike the international system, the courts
in the regional systems issue binding decisions to hold States accountable for
violations of women’s rights and freedoms. In contrast, States’ Parties are only
required to give due consideration to the CEDAW Committee’s views under the
individual complaint procedure (CEDAW Optional Protocol, Article 7, para 4).
The analysis of developments within the UN over four decades indicates that
the work on violence against women was triggered by the advocacy of women’s
rights activists and organizations – more especially at UN world conferences on
women held in Mexico, Copenhagen, Nairobi and Beijing. Such activism led to
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resolutions and expert group meetings on the issue. As discussed above, two UN
organized expert group meetings have taken place, the first on violence in the
family with special emphasis on women, held in Vienna in 1986, and the expert
group meeting on violence against women held in Vienna in 1991. Both meet-
ings highlighted the global nature and concern regarding violence against
women, as articulated in the world conferences on women.22 The conclusions
of the two expert group meetings acknowledge that the existing instruments,
including CEDAW, do not give sufficient consideration to violence against
women, and consequently one of the recommendations was the development
and adoption of a special convention on violence against women. Yet the out-
come of these deliberations was a draft declaration on violence against women,
albeit within an understanding that, in the future, it could serve as the basis for
an optional protocol to CEDAW or a special convention (UN Economic
Commission for Africa Mission report on the 1991 expert group meeting).
It is argued that the proposed convention on violence against women received
less attention than the other measures because the expert group meeting partici-
pants concluded that a declaration would be easier to elaborate and execute than a
binding treaty, and that a treaty would face political hurdles because some State
leaders doubted that violence against women actually qualified as a human rights
violation (Joachim, 1999, page 152). Also, the participants viewed an optional
protocol or a new convention on violence against women as a long-term measure
to be implemented if the General Recommendations of CEDAW, the Declaration
on the Elimination of Violence against Women and the Special Rapporteur on
Violence against Women proved ineffective over time (ibid). Others have argued
that a declaration, as opposed to a convention on the elimination of violence
against women, was adopted because of fears of confusion between the scope of
the CEDAW and a new binding treaty on violence against women; fears that a new
binding instrument might run the risk of limited ratification; and because of
concerns about the expense of implementing a new binding instrument.23
Unfortunately, similar views are still currently articulated by some UN and
regional mechanisms. For example, the group of experts of the Council of
Europe on action against violence and domestic violence, in its submission to
the SRVAW on the issue of a normative gap in international law on violence
against women, noted that the introduction of another instrument would be
premature and pose a challenge to the implementation of existing norms and
standards. Also,
. . . that the current international political climate and economic situation

were not conducive to the drafting of an additional instrument on women’s
rights, and that creating such an instrument would pose a foreseeable risk of
falling behind the existing standards established by the [CEDAW] Commit-
tee and its General Recommendation 19, let alone more advanced standards
set out in the Convention on Preventing and Combating Violence against
Women and Domestic Violence
(SRVAW GA report, 2017, p. 7, para. 18)
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In its submission, the Association of Southeast Asian Nations Commission on the
Promotion and Protection of the Rights of Women and Children stated that a
separate treaty was not necessary and that it would compete for attention and
resources, and that it would constitute an additional reporting burden on

Governments (ibid, p. 8, para. 19). In the same report, the SRVAW also states
that she believes that CEDAW and its General Recommendations, Declaration
on the Elimination of Violence against Women and regional instruments provide
a legally binding framework on women’s rights and violence against women
(ibid, p. 6, para. 12). The report does not provide any empirical evidence that
the current international and regional frameworks and mechanisms are effectively
contributing to substantive norm and standard development at a national level; a
reduction in prevalence rates; and, to addressing impunity for crimes against
women.24
This chapter has illustrated that there is a gap at the international level relating
to a legally binding definition and enumerated obligations of the State in respect
of violence against women. The first SRVAW in her 1996 report noted
The international community should consider the possibility of adopting an

international convention on the elimination of violence against women.
There does not at present exist a comprehensive international legally binding
instrument on violence against women, and the position of the Special
Rapporteur is only an ad hoc mechanism with no avenue of redress
(SRVAW Report, 1996, p. 40, para. 144)
While there is a plethora of international soft law norms, until and unless they
become customary international law, they are only persuasive, not binding, and
thus effectively monitoring and holding States accountable for violations is
basically a non-starter. The practice of the CEDAW Committee has been to
adopt an interpretative soft law approach, and to suggest that the prohibition on
violence against women has now evolved into a principle of customary interna-
tional law, due to soft law developments such as General Recommendation 19
and opinio juris and State practice (CEDAW GR 35, p. 2, para. 2). In General
Recommendation 35 the Committee acknowledges that gender-based violence
against women remains pervasive in all countries of the world, with high levels of
impunity (ibid, p. 3, para. 6). Furthermore, the Committee notes that “In many
states, the legislation addressing gender-based violence against women remains
non-existent, inadequate and/or poorly implemented” (ibid, p. 3, para. 7). The
aforementioned points, and the very limited reference to CEDAW standards in
regional and national level courts and commissions in violence against women
cases, challenge the suggestion of the CEDAW Committee that one can consider
the current international law status as legally binding. The dissonance, as
reflected in the CEDAW GR 35 document, is cause for concern as it highlights

the fact that despite articulations about legally binding obligations on States, the
soft law developments within the UN system have not led to substantive change
at the national level. This requires a responsive and nuanced discussion on the
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98 Rashida Manjoo
normative gap in international law, and whether there is a need for a legally
binding comprehensive international treaty on violence against women, with its
own monitoring body, whether in the form of a stand-alone treaty or an optional
protocol to CEDAW – similar to the Optional Protocol to the Convention

against Torture.
Notes
1 I would like to thank the many students, faculty and researchers in different univer-
sities and organizations who assisted with background research linked to my thematic
reports during my UN tenure. This chapter has benefitted from such research.
2 See generally Dobash and Dobash (1980), Eekelaar and Katz (1977), Foakes (1984),
Bunch (1990), Levinson (1989), Roth (1994).
3 See generally Charlesworth, Chinkin and Wright (1991), Charlesworth and Chinkin
(2000).
4 See generally Picado Sotela (1994), Charlesworth and Chinkin (2000).
5 See generally the reports of the Special Rapporteur on Violence against Women
(SRVAW), particularly reports on family violence: E/CN.4/1995/42, E/CN.4/
1996/53 and E/CN.4/1999/68).
6 See generally the reports of SRVAW, including the report on State responsibility for
eliminating violence against women: A/HRC/23/49 (2013). For an NGO perspec-
tive, see the work of the Due Diligence Project.
7 For references to the 1986 and 1991 Expert Group meetings see UNSRVAW report
1995;
Report of the EGM on violence in the family, Vienna 1986 as referred to in the
Violence against women in the family report 1989; and UN Economic Commission for
Africa − Mission Report of expert group meeting 1991. The author has been unable to
obtain the original reports, presentations and other relevant documents from UN or
non-UN sources).
8 See among others Commission on Human Rights Resolutions 1994/45, 1997/44,
2000/45, 2003/45.
9 See Human Rights Council Resolutions on extending the mandate of the SRVAW and
other resolutions on accelerating efforts to eliminate all forms of violence against
women, including among others, resolutions 7/24 (2007), 11/2 (2009), 14/12
(2010), 16/7 (2011), 23/25 (2013).
10 See among others General Assembly Resolutions 58/147 (2003), 61/143 (2006),
63/155 (2008), 65/187 (2010), 67/144 (2012), 64/137 (2009).
11 See generally Security Council Resolutions adopted between 2000 and 2015): SC RES
1325 (2000), 1820 (2008), 1888 (2009), 1889 (2009), 1960 (2010), 2106 (2013),
2122 (2013), and 2242 (2015).
12 Between 1994 and 2003, the first SRVAW presented her reports to the Commission
on Human Rights. The second SRVAW presented her reports to the Commission on
Human Rights in 2004 and 2005 and thereafter until 2009 to the Human Rights
Council. The third SRVAW presented reports to the Human Rights Council from
2010 to 2015. She also presented reports to the General Assembly from 2011 to
2015. The first two Special Rapporteurs were not mandated to present reports to the
General Assembly (unlike numerous other human rights mandates) and just presented
oral statements to the General Assembly.

13 See generally Edwards (2011) and Meyersfeld (2010) for a comprehensive analysis of
international human rights law and violence against women.
14 The decision of the Inter-American Court of Human Rights in the Velasquez-Rodri-
guez case has been influential in conceptualizing the due diligence principle. The
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Court held that States have a duty to organize the governmental apparatus, and in
general, all the structures through which public power is exercised, so that they are
capable of juridically ensuring the free and full enjoyment of human rights.
15 See generally Chinkin (2012), Hellum and Aasen (2013), Deller-Ross (2008), Cook
(1990).
16 See generally reports of CEDAW to the General Assembly and also reports on UN
International Human Rights Instruments: Follow-up to Decisions.
17 The Statistical analysis on CEDAW communications on its website does not reflect the
situation as at 2017 (it reflects statistics up to 2012). The information on registered
and pending communications was provided via email by a staff member of the
OHCHR on 11 Sept 2017. The number of communications on violence against
women reflects information as at July 2016.
18 For an academic analysis of CEDAW communications see generally Sokhi-Bulley
(2006), Ritz (2001), Englehart (2014), Nguyen (2014), Hodson (2014), Murdoch
(2010), McQuigg (2017), Khanna (2013).
19 See Krommendyk (2013) for an analytical country case study on the impact of
CEDAW.
20 See generally Naples-Mitchell and thematic and communication reports of the Special
Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment.
21 See generally the reports of the UN Working Group on the issue of discrimination
against women in law and in practice and also the reports of the UN Special
Rapporteur in the field of cultural rights.
22 See references in supra note 7.
23 See in general Fitzpatrick (1994), Charlesworth and Chinkin (1994).
24 See Celorio (2011) and CEJIL (2006) in general for substantive analysis on the Inter-
American system and Chapter 6 of this publication.
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4 The African Human Rights System:
Challenges and Potential in
Addressing Violence Against Women

in Africa
Nicholas Wasonga Orago1 and Maria Nassali
4.1 Introduction
Since the period of colonisation, the African continent has witnessed massive
and widespread human rights violations, from massacres to genocides, political
suppression to socio-economic neglect, from physical violence to structural
violence (Viljoen 2012: pp. 158–159; Udombana 2000: pp. 46, 50–54).
Women have been especially vulnerable to these massive and egregious human
rights violations. These have included: cultural and religious subordination to
the men in public and private spaces; harmful cultural practices such as female
genital cutting, early and forced marriages, domestic violence, female infanti-
cide; lack of access to and ownership of socio-economic and productive
resources such as land and capital (see generally True 2015). These violations
continued subsequent to the independence of African countries, with the then
Pan-African regional integration body – the Organisation of African Unity
(OAU) – doing little to respond to these violations (Udombana 2000:
pp. 56–58; Christian-Junior 2008: p. 1).
Pressure from the international community coupled with the wave of demo-
cratisation in Africa after the end of the cold war created the necessary environ-
ment for the establishment of a human rights framework (Mutua 2000: p. 145).
This wave resulted in the drafting and the adoption of the African Charter on
Human and Peoples’ Rights (the African Charter) and the subsequent creation
of the African Commission on Human and Peoples’ Rights (the African
Commission) to champion the protection and promotion of human rights
(Udombana 2000: p. 46). This framework became the cornerstone for the
establishment of what is referred to as the African Human Rights System i.e.
the architecture of norms and institutions contained in the pan-continental
human rights treaties (Viljoen 2001: pp. 18–37, Heyns 2001: p. 155). The
framework has further been bolstered by the adoption of several supportive
binding and soft law regional human rights instruments such as the Constitutive
Act of the African Union; the Protocol to the African Charter on the Rights of
Women in Africa; the Protocol to the African Charter on the Establishment of
the African Court on Human and Peoples’ Rights; the African Charter on the
Rights and Welfare of the Child; the OAU Convention Governing Specific
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108 Nicholas Wasonga Orago and Maria Nassali
Aspects of Refugee Problems in Africa; and, the AU Convention for the
Protection and Assistance of Internally Displaced Persons in Africa.
The objective of this chapter is to undertake a comprehensive analysis of the
normative and institutional framework for the protection of women against

violence. The girl-child also faces violence due to her double vulnerability based
on age and sex, but this chapter will not address that issue. The chapter is divided
into six interconnected sections with Section 4.2 unpacking the situation of
violence against women and an analysis of the normative framework for the
protection of women against violence in Section 4.3. This analysis elaborates on
the content of the hard and soft law instruments for the protection of women
against violence. In Section 4.4, the chapter analyses the work of the institutions
created under the normative legal framework and delves into the practices and
jurisprudence of these institutions on the protection of women from violence.
Section 4.5 analyses the prospects and challenges in the protection of women
against violence and the chapter ends with a short conclusion in Section 4.6.
4.2 The situation of violence against women in Africa

Violence against women has been recognised globally as a violation of the
fundamental rights of women and as an impediment to equality, sustainable
development and peace (Johnson, Ollus and Nevala 2008: pp. 1, 16). It is
intricately linked to women’s social and economic status in society, which creates
vulnerabilities to male domination and violence (ibid: p. 2).
Women in the African continent have borne the brunt of this human rights
violation due to entrenched cultural, religious and patriarchal practices, structural
inequalities, and power imbalances between the sexes that engender discrimina-
tion and subordination of women (Centre for Human Rights 2009: pp. 3, 14;
ACGS/UNECA 2010: p. 4). This situation is worsened by the traditional overt
or covert acceptance of the use of interpersonal violence to resolve conflicts,
which renders women disproportionately susceptible to abuse from different
levels of society (Callaghan 2010: p. 2; ACGS/UNECA 2010: p. 4). This
acceptance has inculcated tolerance and impunity, with social and institutional
silence leading to stigma against women survivors of violence that has resulted in
underreporting of cases. (Pickup, Williams and Sweetman 2001: pp. 76–77). The
tolerance, impunity and silence have continued to perpetuate systemic and
normalised violence against women, undermining the effectiveness of the avail-
able formal normative and institutional frameworks (AHDR 2016: p. 9). The
spectrum of violence affecting women includes domestic violence, intimate
partner violence, rape including marital rape, trafficking for labour or commercial
sexual exploitation, sexual harassment, female genital cutting, dowry-related
violence, forced sexual debut, and additional threats to women´s personal security
in periods of war and conflict (AHDR 2016: p. 5; Callaghan 2010: pp. 2–7).
Women’s sexuality and right to decide over their own bodies has been the
most contested of all women’s rights; subjected to control, by individual men,
the family, society and the State (Schlyter 2009: p. 14). In most of Anglophone
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The African Human Rights System 109
Africa, offences against women are predominantly characterised as offences
against morality rather than offences against bodily integrity. This dehumanises
victims during the trial, putting them to task to demonstrate their worthiness of
legal protection (Guijarro 2014: pp. 10–12). Equally, the dominant framing of
reparation that focuses on reinstating the victim to the position she was in before
the violence occurred, reinforces marginalisation by failing to transform the root
causes of violence (Manjoo 2010: pp. 17–27).
Further, the HIV/AIDS scourge has disproportionately affected women who
are in most instances not able to determine how and when sex occurs due to
gendered inequalities, especially in a context where marital rape has not been
criminalised and intimate partner violence is tolerated (Gerntholtz et al 2011:
p. 2; Johnson et al 2008: p. 3). This has been exacerbated by the criminalisation
of HIV transmission in many African countries, with women most likely to find
out their status as a result of their role as child bearers, leading to their
victimisation. This has not only generated the situation of State-led persecution
of women through the criminal justice system, but has also created a situation of
intimate partner violence against women on the basis of their HIV status
(Gerntholtz et al 2011: p. 2). It has also led to coerced or forced sterilisation of
women living with HIV, further entrenching the violence and constraining the
ability of these women to make informed reproductive decisions (Gerntholtz et al
2011: p. 2).
The section below highlights the normative framework that has been put in
place and analyses whether the framework meets the required standard for the
protection of women from violence.
4.3 The normative framework for the protection of women

against violence in Africa
More than half of the global population is women, a fact that equally applies to
the population demographics in Africa. The demographic dominance has, how-
ever, not led to socio-political empowerment and economic liberalisation for
women in Africa, and the protection of women from violence is not a priority.
4.3.1 The Constitutive Act of the African Union

Human rights did not play a prominent role in the OAU, with the OAU Charter
prioritising the principles of pan-Africanism (promotion of unity, solidarity,
cohesion and cooperation) and the political liberation of African States from
colonialism and apartheid (Magliveras and Naldi 2002: p. 415; Ouguergouz
2003: p. 3; Stefiszyn 2005: p. 361). Human rights were mentioned in respect
to international cooperation with due regard to the UN Charter and the UDHR
(OAU Charter 1963: Article 2), with the OAU framework largely paying lip
service to the actual protection and promotion of human rights. Within this
framework, the prevailing principles were state sovereignty and non-interference
in the internal affairs of States, which were used to insulate African despots from
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110 Nicholas Wasonga Orago and Maria Nassali
accountability for egregious human rights violations (ACHPR and Centre for
Human Rights 2011: p. 8).
The end of apartheid in South Africa, the fall of major despotic regimes as well
as the growth of international human rights law pushed African States to

reconsider the place of human rights in the regional integration efforts. These
efforts led to the adoption on 11 July 2000 and the coming into force on 26 May
2001 of the Constitutive Act of the AU and the launch of the Africa Union in
2002 (see generally Packer and Rukare 2002: pp. 365–379; Muluwa 2003:
pp. 157–170). The Constitutive Act was a progressive advancement in the
African region in the protection and promotion of human rights generally and
the affirmation of the importance of the principles of equality and non-discrimi-
nation on multiple grounds including gender (Constitutive Act 2001: Article 4
(L); Viljoen 2009: p. 13; Stefiszyn 2005: pp. 361–362).
The Act affirms the importance of protection and promotion of human rights
as a critical component of regional integration, promising to empower and fund
all regional human rights institutions (Constitutive Act 2001: Preamble paras 9–
11, Articles 3(h) and 4(m–o); Isanga 2013: pp. 270–273). It empowers the
Union to intervene in Member States in the context of grave circumstances such
as war crimes, crimes against humanity and genocide (Article 4(h)), though this
procedure has not been effectively used to protect women from widespread
violence in conflict situations. Further, the Act empowers the Union to subject
Member States who fail to comply with the decisions of the AU to sanctions such
as denial of transport and communication links (Constitutive Act 2001: Article
23(2)). This has been read together with Article 30 of the African Court Protocol
as enabling the AU Assembly through the Executive Council to enforce the
decisions of the Court, a mechanism that enhances adherence to the decisions of
the Court. It is thus clear from the above exposition that the Constitutive Act is
an improvement to the OAU Charter in creating a regional framework for the
protection of human rights, which can be utilised to protect women against
violence. The Act is, however, weak in the express normative definition, defence
and promotion of the right of women against violence (Meyersfeld 2010: p. 89).
It must thus be read together with the other African human rights instruments to
understand the totality of the normative framework for the protection of women
against violence.
4.3.2 The African Charter on Human and Peoples’ Rights

The idea of having an African human rights document was conceived at the first
congress of African lawyers held in Lagos in 1961 (Ouguergouz 2003: p. 20;
Udombana 2000: pp. 58–59). The conference adopted “The Law of Lagos,”
which among others appealed to African governments to consider adopting an
African convention on human rights to give full effect to the UDHR (The Law
of Lagos 1961: para. 4). Drawing from the European and the Inter-American
human rights conventions, the Assembly of Heads of States and Government in
1979 unanimously requested the Secretary General of the OAU to convene a
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The African Human Rights System 111
committee of experts to draft a regional human rights instrument for Africa
(ACHPR and Centre for Human Rights 2011: p. 9).
This process culminated in the adoption of the African Charter in 1981 as the
premier regional instrument for the protection and promotion of human rights.
Its adoption has been lauded for facilitating the age of human rights (ACHPR
and Centre for Human Rights 2011: p. 7). The Charter has unique character-
istics, and is the first human rights instrument to bridge the dichotomies between
the private and public spheres; it reflects the entire corpus of human rights; and it
encompasses individual duties, thereby yielding a more holistic protection of
rights (Viljoen 2001: p. 20).
Despite these innovations, the African Charter is very weak in relation to the
specific protection of the rights of women, mentioning the word “women” only
once in its entirety (Oloka-Onyango 1996: p. 351). This use of gender-neutral
language and the identical treatment of all persons is counter-productive to the
protection of women against violence, as it masks the discrimination of margin-
alised groups, including women (Banda 2005: pp. ix, 30; Chinkin 1999: p. 107).
The use of gender-neutral language thus fails to acknowledge that violence
against women is mainly the result of unequal power relations between men and
women that must be expressly and specifically addressed if progress is to be made
in protecting women from violence.
Even though the African Charter espouses the principles and norms of non-
discrimination, equality, equal protection of the law, bodily integrity and the
inviolability of the human person as well as the protection of human dignity
(African Charter: Preamble para. 9, Articles 2–6 and 28), it adopts a predomi-
nantly traditional approach to the protection of women. It entrenches the
protection within the family setting, a sub-right to the right to the protection of
the family (Oloka-Onyango 1996: p. 372; Meyersfeld 2010: p. 89). This is
contained in Article 18(3) as follows:
The State shall ensure the elimination of every discrimination against women
and also ensure the protection of the rights of the woman and the child as
stipulated in international declarations and conventions.
This formulation of protection for women has limited practical benefits, failing to
elevate the societal status of women beyond reproductive roles, and perpetuates
the traditional cultural values that place women and children under the authority
of the male household head (Meyersfeld 2010: p. 89; Viljoen 2009: p. 19).
Further, to the detriment of the protection of women against violence, the
language of the Charter in Article 16 is also restrictive in its provision on the
right to health, only expressly recognising physical and mental aspects of health-
care, with no mention of sexual and reproductive health that impacts women
(Gerntholtz et al 2011: p. 2).

The OAU had the opportunity to adopt better provisions for the protection of
women against violence in its First Ministerial Conference on Human Rights,
which resulted in the Grand Bay Declaration and Programme of Action in 1999
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Copyright © 2018. Routledge. All rights reserved.

Rashida Manjoo is a Professor in the Department of Public Law, University of Cape

Tax Havens and International Human Rights

The Effectiveness of the UN Human Rights System

Socio-Economic Human Rights in Essential Public Services Provision

About the Series Editor

UN Special Rapporteur for human rights in Cambodia.

Normative Gaps in International Law

Rashida Manjoo and Jackie Jones

2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN

1 The Importance of International Law and Institutions 9

2 Exploring the Consequences of the Normative Gap in Legal

3 Normative Developments on Violence Against Women in the

4 The African Human Rights System: Challenges and Potential in

5 The European Convention on Human Rights (ECHR)

6 Violence Against Women: Normative Developments in the

7 Closing the Normative Gap in International Law on Violence

Caroline Bettinger-López is a Professor of Clinical Legal Education and Direc-

Violence against Women Journal and Women’s Studies International Forum.

UK. Nassali is a lecturer at Makerere University and Chief Executive Ofﬁcer of

Violence Against Women and the Need

Violence is a key factor in the production, maintenance and legitimisation of

nations’ commitment to eradicating this form of abuse.

Organisation of this book

The adoption of the Declaration on the Elimination of Violence against

appropriate measures to suppress all forms of trafﬁcking in women and

rights, starting with citizenship. The requirement to further develop profound,

to safe crisis accommodation, long-term housing and support services, specialist

theory, Sociology, 46(2):224–240.

1.1 Why international law?

17. The law is an essential mechanism for women’s enjoyment of human

ensuring that a legally binding international norm on eliminating violence

community . . . The human rights of women should form an integral part of

level. Filling the normative gap on eliminating gender-based violence, which is

1.3 The use of international law instruments to end violence

must be included in the state’s obligations and responses must be gendered. In

1.4 Human rights treaties making a transformative difference

a number of studies support the assumption of the human rights community

1.5 Gendering the UN systems: treaty body general

1.5.1 Case law

the numerous manifestations of violence perpetrated against women and girls. In

UN systems are to remain relevant and useful for all generations.

1.6 Ending violence against women as customary international

principle of customary international law’ and thus that a new Treaty or

well as public authorities, as does a Convention or Optional Protocol. It equally

tions. Indeed, it is a normal practice of negotiations (Schabas, 1996; Cook, 1990);

1.8 The United Nations human rights regime

1.8.1 UN Human Rights Council

UN system can bring to bear on individual States or in different regions. It can

bodies have a long history of passing resolutions in relation to VAW, including

1.8.2 United Nations High Commissioner for Human Rights

1.8.3 Special procedures

mandates relating to countries or territories), Independent Experts, and Special

Resolution 1994/45 of the Commission on Human Rights, adopted on 4 March

1.8.3.2 Special Rapporteur on torture

the specialised agencies and non-governmental organisations;

occurrence of such acts;

The Rapporteur’s reports, as with the Rapporteur’s mandate, are speciﬁcally

the argument that domestic violence should be understood and treated as a

The 1995 report of the Special Rapporteur on Torture contained an extensive

1.8.3.3 Intersectionality: the roles of two independent experts

31. The lack of a comprehensive and integrated international legal instru-

(a) Existing regulations do not cohere, let alone conceptualize, regulatory

14. According to the statement from 12 United Nations entities on ending