Time for a Change: The Need for a Binding International Treaty on Violence Against Women
By Helen Rubenstein, Senior Counsel, Global Rights for Women
Violence against women¹ exists at pandemic levels around the world, with more than one billion women lacking legal protection from domestic violence.² Thirty-five percent of women worldwide have experienced physical violence, and 30 percent of women who have been in a relationship report that they have experienced some form of physical and/or sexual violence by an intimate partner.³
Although multiple international and regional legal instruments promise women their full human rights, violence in all its forms is the greatest obstacle to achieving those rights.
Current international and regional efforts to combat violence against women through legal mechanisms are inadequate. At least one reason for this is that existing efforts lack a consistent and comprehensive framework. As the issue has gained attention and momentum, a multitude of instruments has evolved. As a result, references to violence against women and attempts to combat it through United Nations charter-based mechanisms,⁴ treaty-based bodies⁵ and regional treaties are many but disjointed.
The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) is most prominent among the treaties that have been interpreted to address violence against women. Non-binding charter and treaty based mechanisms address violence against women explicitly but despite strong language they are intended to express goals to work toward and carry no enforcement mechanisms. Similarly, regional instruments such as the Istanbul Convention in Europe, the Convention of Belém do Pará in the Americas and the Maputo Protocol in Africa offer victims of violence varying degrees of protection.
Critically, neither CEDAW nor any other international human rights treaty specifically identifies violence against women in its text.
While charter-based mechanisms such as the Declaration on the Elimination of Violence Against Women explicitly address and condemn violence against women, they are non-binding and therefore unenforceable.
The Convention on the Elimination of All Forms of Discrimination against Women cannot effectively combat violence against women.
CEDAW is the only legally binding international treaty that directly addresses women’s human rights. It is a critical mandate. But because of CEDAW’s broad scope, violence against women is only one of many forms of discrimination competing for the CEDAW Committee’s⁶ attention and resources. In fact, the treaty does not even contain the word “violence.” Instead, it addresses violence against women only through the General Recommendations⁷ that the Committee has adopted without ratification by treaty members.⁸
While CEDAW does not explicitly prohibit violence against women, it has been interpreted to include violence against women as a form of discrimination. However, even though the convention includes language addressing some specific forms of violence against women, such as child marriage and forced marriage,⁹ it does not address the most common forms, domestic violence and sexual violence.
Because CEDAW defines the problem of achieving women’s human rights as discrimination, its agenda for national action¹⁰ is based on that broad perspective. This agenda is aimed at ensuring women’s equal access to opportunities in arenas in which discrimination commonly occurs, such as political and public life, education, health, and employment.
Attempting to incorporate violence against women into the definition of discrimination presents another dilemma. Because the concept of discrimination fails to recognize the seriousness of the harm,
violence against women should be recognized as its own human rights violation.¹¹
As one commenter noted, “CEDAW does not mention the words ‘rape,’ ‘assault,’ or even ‘violence,’ [it] therefore provides an inadequate legal framework to protect, defend, and guarantee women and girls the right to a life free from gender-based violence.”¹²
Some experts have argued that the real strength of CEDAW is the Committee’s role in enforcing the treaty.¹³ The Committee has two enforcement mechanisms: periodic reporting and the Optional Protocol, a complaint and inquiry procedure.¹⁴ Yet even these tools have resulted in less than robust enforcement of the treaty for a number of reasons, especially regarding violence against women.
All countries that have ratified CEDAW must submit periodic reports on actions they have taken to comply with treaty obligations. However, the Committee’s time for considering member countries’ reports is inadequate, and has led to delays in the reporting system.¹⁵ In addition, many States have failed to submit reports or do so only after a long delay.
The Optional Protocol gives the CEDAW Committee the opportunity to address specific violations of the treaty. But in almost 20 years, the Committee has issued only 33 decisions while another 50 cases were either discontinued or found inadmissible.¹⁶ Of course, the Optional Protocol covers all aspects of the treaty, not only violence against women. And like the reporting requirement, the Optional Protocol is only as strong as the resources available to implement it and treaty members’ willingness to carry out the CEDAW Committee’s recommendations.
CEDAW is an important foundational framework that has been instrumental in raising awareness and understanding of women’s human rights. It has led to real improvement in the human rights of women and girls. However,
the fundamental nature of CEDAW makes it unable to effectively address the critical issue of violence against women.
Its limitations are evidence of the need for a binding international treaty that ensures the essential human rights of women and girls around the world to live free from violence.
Charter-based mechanisms identify standards and practices to address violence against women but they lack binding authority.
Charter-based mechanisms are the United Nations’ resolutions, special procedures, and action plans. They provide another important source of international law on violence against women but, unlike human rights treaties, they are non-binding. They carry moral authority, and may be persuasive in interpreting treaties, but they are not enforceable like treaties.¹⁷
As women increasingly demanded that violence be recognized as a human rights abuse, the mid-1990s saw a proliferation of charter-based mechanisms addressing violence against women. At the 1995 Fourth World Conference on Women in Beijing, Hillary Clinton declared, “women’s rights are human rights, and human rights are women’s rights!”¹⁸ Women’s rights converged with the broader discussion of human rights and the two became firmly entwined. Women’s advocates at the Beijing Conference identified violence against women as a key human rights priority.¹⁹
The non-binding mechanisms that explicitly address violence against women include the Declaration on the Elimination of Violence Against Women, the reports of the Special Rapporteur on Violence Against Women, and the Beijing Declaration and Platform for Action. The UN General Assembly, the Human Rights Council, and other UN bodies also address violence against women through various other resolutions.
These mechanisms inform countries of the need to combat violence against women. In fact, the language of these documents is often stronger than that of the treaties. Together with the work of expert bodies, such as the CEDAW Committee, they provide a blueprint of recommended action and strategies for eliminating violence against women.²⁰
Charter-based mechanisms have brought attention to important issues regarding violence against women. The Special Rapporteur on Violence Against Women writes reports based on her deep expertise and fact-finding around the world. She is a leading expert and strong advocate for an effective response to violence against women. Nevertheless, countries can never be held accountable for following the Special Rapporteur’s recommendations, and therefore they are not a substitute for a treaty on violence against women.²¹
Because the charter-based mechanisms lack enforcement,
the effectiveness of these non-binding instruments depends on an active and engaged civil society, especially women’s rights organizations around the world.
Non-binding frameworks require the political will of nations to comply with such standards and, just as importantly, the commitment to fund and support their implementation. Thus, their effectiveness is far from assured. As a result, their greatest contribution may be informing the development of a binding treaty on violence against women.
Regional treaties are not a substitute for a binding international treaty.
Regional treaties offer an additional contribution to the ongoing development of an effective international response to violence against women. Yet regardless of their strengths,
the fact that they are regional means that they cannot protect every woman everywhere.
The Organization of American States and the Council of Europe have developed the strongest regional treaties. Each one has active enforcement mechanisms devoted exclusively to combating violence against women. They include some of the most innovative efforts to date and reflect best practices to address violence that have been developed over decades in local settings.These treaties guide treaty members’ actions through concrete recommendations that help them implement standards and develop the skills and resources to achieve the goals of the treaties. Like the charter-based mechanisms, they can serve as models for an international treaty.
Other regions lack access to a strong treaty that specifically addresses violence against women. Africa’s Maputo Protocol has been ratified by only 36 of 54 eligible nations²² and its reporting system is inconsistent.²³ Asia and the Middle East have no treaties on violence against women. All countries in the world need to have access to a binding treaty with a strong enforcement mechanism, implementation guidelines and tools to develop and strengthen the ability of nations, communities, and organizations to effectively combat violence against women.
Many human rights experts view the Istanbul Convention as a global call to action because it is open to membership by any country in the world.²⁴ Its many strengths have led some to consider it the “gold standard” for combating violence against women,²⁵ but it is important to recognize that it was drafted by delegates from European countries for the European community. As such, it does not reflect the expressed concerns of non-European women.
While the Istanbul Convention is the preeminent contribution to the growing legal frameworks to combat violence, it is not a substitute for a global treaty.
The World Needs a New Binding Treaty on Violence Against Women.
The current international and regional legal frameworks to protect women and girls against violence have evolved along with growing recognition of the importance of the issue. Even so, close examination of these frameworks reveals gaps that are best addressed by a consistent framework with clear standards, strong enforcement mechanisms, and an approach that recognizes violence against women as an intersectional form of oppression that addresses the full range of women’s experiences around the world.
Existing international and regional legal frameworks have laid necessary groundwork, but they are not a substitute for a global treaty.
Global Rights for Women therefore calls for a new binding international treaty to end violence against women around the world.
For more information, see the full report on the Global Rights for Women website, Time for a Change. We welcome feedback and further discussion of this critical issue, especially from those who are working to end violence against women.
¹For the purposes of this paper, the phrase “violence against women” refers to all those who identify as women, including girls.
² Paula Tavares & Quen;sexual Harassment,” The World Bank, revised March 2018, 8.
³ “Violence Against Women: Key Facts,” World Health Organization, November 29, 2017. http://www.who.int/news-room/fact-sheets/detail/violence-against-women.
⁴Charter-based mechanisms include bodies, like the Human Rights Council, and special procedures created by the UN Charter. “UN Documentation: Human Rights, Charter-based Bodies,” UN Dag Hammarskjöld Library, last updated November 9, 2018. https://research.un.org/en/docs/humanrights/charter.
⁵ Treaty-based bodies are those brought into existence by a specific international treaty. The Committee on the Elimination of Discrimination against Women is the treaty-based body associated with CEDAW. “UN Documentation: Human Rights, Treaty-based Bodies,” UN Dag Hammarskjöld Library, last updated November 9, 2018. https://research.un.org/en/docs/humanrights/treaties.
⁶The Committee on the Elimination of All Forms of Discrimination Against Women (Committee) is the body of independent experts that monitors implementation of the Treaty. “Committee on the Elimination of Discrimination against Women.” United Nations Human Rights Office of the High Commissioner. 2018. http://www.ohchr.org/EN/HRBodies/CEDAW/Pages/CEDAWIndex.aspx.
⁷General Recommendations are interpretations of treaty provisions adopted by the CEDAW Committee without ratification by treaty members. “Human Rights Treaty Bodies — General Comments.” United Nations Human Rights Office of the High Commissioner. 2019. https://www.ohchr.org/en/hrbodies/pages/tbgeneralcomments.aspx.
⁸Treaty members are countries that have ratified a treaty and are therefore considered required to comply with the terms of the treaty. Treaty members are also known as States parties. “State Party.” UNTERM. Accessed March 11, 2019. https://cms.unov.org/UNTERM/Display/record/UNHQ/State_party/BDE60AC8DA6D645785256E750069530D.
⁹CEDAW, Art. 16(1)(a) and (b) states: “States parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women: (a) The same right to enter into marriage; (b) The same right freely to choose a spouse and to enter into marriage only with their free and full consent.”Article 16 also provides that child marriage shall have no legal effect, and States are required to legislate a specific minimum age for marriage and require registration of marriages in an official registry. Article 16 also addresses reproductive decision-making. That article obligates treaty members to eliminate discrimination relating to childbearing, including forced sterilization. It requires that women have the “rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights.” (“CEDAW: Full text of the Convention in English,” UN Women, last modified 2003, art. 16. http://www.un.org/womenwatch/daw/cedaw/text/econvention.htm.)
¹⁰Convention on the Elimination of All Forms of Discrimination against Women, New York, 18 December 1979,” United Nations Treaty Series, vol. 1249, p. 13, available from https://treaties.un.org/doc/Treaties/1981/09/19810903%2005-18%20AM/Ch_IV_8p.pdf. (Original Document); For a more reader-friendly version, please see: “CEDAW: Full text of the Convention in English,” UN Women, last modified 2003. http://www.un.org/ womenwatch/daw/cedaw/text/econvention.htm
¹¹Anna Saber & Francisco Rivera Juaristi, “Written submission prepared by the International Human Rights Clinic at Santa Clara University School of Law in response to the call for submissions issued by the UN Special Rapporteur on Violence Against Women,” Santa Clara Law, October 1, 2016. http://1x937u16qcra1vnejt2hj4jl.wpengine.netdna-cdn.com/wp-content/uploads/161001_VAW-Questionnaire_SantaClaraIHRC.pdf.
¹³Martha Nussbaum, “Women’s Progress and Women’s Human Rights,” Human Rights Quarterly 38, no. 3 (August 2016): 589–622. https://muse.jhu.edu/article/627628.
¹⁴The Optional Protocol is a treaty in its own right, requiring separate ratification for States to be bound by its requirements. “What Is an Optional Protocol?” UN Women: Convention on the Elimination of All Forms of Discrimination against Women. Accessed March 11, 2019. http://www.un.org/womenwatch/daw/cedaw/protocol/whatis.htm.
¹⁵Ronagh J.A. McQuigg, “The Responses of States To the Comments Of The CEDAW Committee On Domestic Violence,” The International Journal of Human Rights 11, no. 4 (2007): 473, doi:10.1080/13642980701659989.
¹⁶Please see “Statistical Survey on Individual Complaints” link on Committee on the Elimination of Discrimination Against Women, UN Human Rights Office of the High Commissioner. Accessed March 11, 2019. https://www.ohchr.org/en/hrbodies/cedaw/pages/cedawindex.aspx.
¹⁷McQuigg, “The Responses of States…,” 2007.
¹⁸Chozick, Amy. “Hillary Clinton’s Beijing Speech on Women Resonates 20 Years Later.” The New York Times. September 05, 2015. Accessed March 11, 2019. https://www.nytimes.com/politics/first-draft/2015/09/05/20-years-later-hillary-clintons-beijing-speech-on-women-resonates/.
¹⁹“Beijing Declaration and Platform for Action,” in Report of the Fourth World Conference on Women, UN Doc. A/CONF.177/20, (UN Fourth World Conference on Women, 16th plenary meeting, Beijing, October 17, 1995). http://undocs.org/A/CONF.177/20.
²⁰Christine Chinkin, “Addressing Violence Against Women in The Commonwealth Within States’ Obligations Under International Law,” Commonwealth Law Bulletin 40, no. 3 (2014): 471–501. doi:10.1080/03050718.2014.931011.
²¹Rashida Manjoo, “Report of the Special Rapporteur on violence against women, its causes and consequences, Rashida Manjoo,” UN Doc. A/HRC/26/38, (UN General Assembly Human Rights Council, 26th Session, May 28, 2014). http://undocs.org/en/A/HRC/26/38.
²²“Ratification Table: Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa,” African Commission on Human and Peoples’ Rights, last updated 2018. http://www.achrpr.org/instruments/women-protocol/ratification/.
²³Please see individual State information in “Ratification Table,” 2018.
²⁴“Regional Tools to Fight Violence Against Women: The Belém do Pará and Istanbul Conventions,” Organization of American States & Council of Europe, February 2014. http://www.oas.org/en/mesecvi/docs/MESECVi-CoE-CSWPub-EN.pdf.
²⁵Bonita C. Meyersfeld, “Introductory Note To The Council of Europe Convention On Prevention And Combating Violence Against Women And Domestic Violence,” International Legal Materials 51, no. 1 (2012): 106, doi:10.5305/intelegamate.51.1.0106.