La Trascendencia de la Educación no Formal

As will be discussed in chapter five, violence against women became increasingly important in the CEDAW Committee meetings around the time of General Recommendation 19.

General Recommendations 12 and 19, passed in 1989 and 1994 respectively, were official statements of the CEDAW committee, incorporating violence against women, including domestic violence, into the treaty’s framework.²⁴⁷

6.4.1 Status of General Recommendation 19

The CEDAW Committee is empowered to “make suggestions and general recommendations based on the examination of reports and information received from the State Parties.”²⁴⁸ General Recommendations 12 and 19 are examples of this power. General Recommendation 12 urged states to consider the seriousness of violence against women and required statistics on gender-based violence.²⁴⁹ As the later and more comprehensive recommendation, the discussion hereafter focuses on General Recommendation 19.

General recommendations by U.N. treaty bodies are not automatically binding on state parties to the treaty in question and are used to explain or interpret provisions within the governing treaty.²⁵⁰ However, as with U.N. resolutions passed by the General Assembly, general

246 Article 4.

247 Report on the Committee on the Elimination of Discrimination Against Women: General Recommendation No.

12, Violence Against Women (8^th Sess. 1989), adopted 3 Mar. 1989, U.N. GAOR, 44th Sess., Supp. No. 38, ¶ ¶ 7-9, 24, U.N. Doc. A/44/38 (1990), reprinted in Compilation of General Comments and General Recommendations Adopted by the Human Rights Treaty-bodies, at 78, U.N. Doc. HRI./GEN/1/Rev.1 (1994), establishing that violence against women was prohibited by CEDAW, supra note 21, and General Recommendation 19, supra note 35, at 5.

248 Article 21(1) of CEDAW.

249 Report on the Committee on the Elimination of Discrimination Against Women: General Recommendation No.

12, Violence Against Women (8^th Sess. 1989), adopted 3 Mar. 1989, U.N. GAOR, 44th Sess., Supp. No. 38, ¶ ¶ 7-9, 24, U.N. Doc. A/44/38 (1990), reprinted in Compilation of General Comments and General Recommendations Adopted by the Human Rights Treaty-bodies, at 78, U.N. Doc. HRI./GEN/1/Rev.1 (1994).

250 SALLY ENGLE MERRY,HUMAN RIGHTS AND GENDER VIOLENCE TRANSLATING INTERNATIONAL LAW INTO LOCAL

JUSTICE 75 (2006) (“CEDAW General Recommendations are not legally binding in the same way as the terms of CEDAW, but they are designed to show states their obligations when they are not mentioned or not sufficiently explained in the convention itself.”).

recommendations made by treaty bodies may constitute evidence of the existence of a rule of CIL. The rule of CIL, in turn, theoretically binds all states.²⁵¹

As will be argued in chapter four, General Recommendation 19 contributes to the plethora of evidence indicating the existence of an international norm against domestic violence in CIL.

Therefore, in a cumulative sense, General Recommendation is an important instrument for domestic violence.

6.4.2 Content of General Recommendation 19

a. Violence Equals Discrimination

General Recommendation 19 amends the textual gap in CEDAW and states expressly that the “definition of discrimination includes gender-based violence… [which] may breach specific provisions of the Convention, regardless of whether those provisions expressly mention violence”²⁵² Gender-based violence is “violence that is directed against a woman because she is a woman or that affects women disproportionately.”²⁵³

Domestic violence, referred to as violence in the family, is described as:

one of the most insidious forms of violence against women. It is prevalent in all societies. Within family relationships women of all ages are subjected to violence of all kinds, including battering, rape, other forms of sexual assault, mental and other forms of violence, which are perpetuated by traditional attitudes. Lack of economic independence forces many women to stay in violent relationships. The abrogation of their family responsibilities by men can be a form of violence, and coercion. These forms of violence put women's health at risk and impair their ability to participate in family life and public life on a basis of equality.²⁵⁴

The recommendation links violence against women to other international human rights violations, such as torture and discrimination.²⁵⁵ It creates an express link between discrimination and violence. It reiterates states’ obligations to end to all forms of discrimination against women and explains that “[t]raditional attitudes by which women are regarded as subordinate to men or as having stereotyped roles perpetuate widespread practices involving violence or coercion…”²⁵⁶ Because states have an obligation to prevent discrimination, and because violence against women is a manifestation of discrimination, QED states have an obligation to prevent violence against women. Therefore, states are required to take positive steps to prevent violence against women, whether perpetrated by public or private actors.²⁵⁷

251 See BROWNLIE, supra note 329, at 5.

252 Article 6.

253 Article 6.

254 Paragraph 23.

255 Article 7(b). It cites violence as “a form of discrimination that seriously inhibits womens’ [sic] ability to enjoy rights and freedoms on a basis of equality with men.”

256 Article 11.

257 General Recommendation 19, supra note 35, at paragraph 4: “The full implementation of the Convention required States to take positive measures to eliminate all forms of violence against women.”

b. Culture Cannot Justify Violence

General Recommendation 19 makes a bold statement as regards cultural and traditional

“prejudices and practices [which] may justify gender-based violence as a form of protection or control of women.”²⁵⁸ It rejects this, explaining that the “underlying consequences of these forms of gender-based violence help to maintain women in subordinate roles and contribute to the low level of political participation and to their lower level of education, skills and work opportunities.”²⁵⁹

c. Types of Prohibited Violence

General Recommendation 19 prohibits a wide range of violence. In general, violence against women is said to include “acts that inflict physical, mental or sexual harm or suffering, threats of such acts, coercion and other deprivations of liberty.”²⁶⁰ The following forms of violence against women are listed specifically: family violence and abuse; forced marriage; dowry deaths; acid attacks; female circumcision;²⁶¹ prostitution;²⁶² trafficking;²⁶³ rape in general;²⁶⁴ sexual assault in armed conflict;²⁶⁵ sexual harassment;²⁶⁶ dietary restrictions for pregnant women;²⁶⁷ sexual exploitation of rural women;²⁶⁸ and, compulsory sterilization and abortion.²⁶⁹ The effect of the violence is “to deprive them [women] the equal enjoyment, exercise and knowledge of human rights and fundamental freedoms [sic].”²⁷⁰

“Family violence” is discussed separately and extensively. It is described as “one of the most insidious forms of violence against women,” which affects women of all ages.²⁷¹ The Recommendation explains that family violence is universal and “prevalent in all societies.”²⁷² It describes the variety of types of harm, such as “battering, rape, other forms of sexual assault, mental and other forms of violence…” and the “abrogation of their family responsibilities by men” as a form of violence and coercion.²⁷³ It reveals that women are unable to leave the abusive situations because a “[l]ack of economic independence forces many women to stay in violent relationships.”²⁷⁴ It raises the context of discrimination such as traditional attitudes which perpetuate the violence.²⁷⁵ It concludes by stating that “[t]hese forms of violence put women's

258 Article 11.

259 Article 11.

260 Article 1.

261 Article 11.

262 Articles 13 and 15.

263 Articles 14 and 16.

264 Article 15.

265 Article 16.

266 Article 17.

267 Articles 19 and 20.

268 Article 21.

269 Article 22.

270 Article 11.

271 Article 23.

272 Article 23.

273 Article 23.

274 Article 23.

275 Article 23.

health at risk and impair their ability to participate in family life and public life on a basis of equality.”²⁷⁶

d. State Obligations

As regards the responsibility for violence, General Recommendation 19 states that CEDAW applies to violence “perpetrated by public authorities.”²⁷⁷ However, in the following, separate article it is “emphasized… that discrimination under the Convention is not restricted to action by or on behalf of Governments.”²⁷⁸ This article refers to the fact that CEDAW requires state parties to “take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise.”²⁷⁹ It then cites “general international law and specific human rights covenants” as authority for the fact that states “may also be responsible for private acts if they fail to act with due diligence to prevent violations of rights or to investigate and punish acts of violence, and for providing compensation.”²⁸⁰

After listing the forms of gender-based violence, General Recommendation 19 makes several recommendations to state parties.²⁸¹ These recommendations can be grouped into three categories: (1) legal; (2) educational and (3) research. State parties are encouraged to comment on the implementation of these steps in their reports to the CEDAW Committee.²⁸²

There are several aspects of the recommendations which focus on “family violence.” The first broad recommendation is of specific importance to systemic intimate violence. It requires state parties to “take appropriate and effective measures to overcome all forms of gender-based violence, whether by public or private act.”²⁸³ Irrespective of whether the violence is conducted by private citizens or government entities, the state, it is suggested, remains responsible for the violence.

The recommendation is far more specific as regards systemic intimate violence (known as family violence):²⁸⁴ it calls for criminal penalties “where necessary and civil remedies in cases of domestic violence;”²⁸⁵ it denounces the defense of honor for crimes of assault against or murder of female family members and requires its removal by legislation; ²⁸⁶ it recognizes the victims’

immediate need for safety, “including refuges, counselling and rehabilitation programmes;”²⁸⁷ it

276 Article 23.

277 Article 8 (“Such acts of violence may breach that State's obligations under general international human rights law and under other conventions, in addition to breaching this Convention.”).

278 Article 9.

279 Article 9.

280 Article 9.

281 Article 24.

282 Article 24(v) provides that the reports of state parties “should include information on the legal, preventive and protective measures that have been taken to overcome violence against women, and on the effectiveness of such measures.” In addition, reference is made to the reporting requirement in articles 24(b), (e), (h), (j), (l), (n), (q), (s), and (u).

283 Article 24(a).

284 Article 24(r)().

285 Article 24(r)(i).

286 Article 24(r)(ii).

287 Article 24(r)(iii).

requires “[r]ehabilitation programs for the perpetrators of domestic violence;”²⁸⁸ and support service for families “where incest or sexual abuse has occurred.”²⁸⁹

6.4.3 Appraisal of General Recommendation 19

General Recommendation 19 incorporates a broad definition of violence against women into CEDAW. To some degree, this closes the textual loophole of the original CEDAW text. It also formed the basis for the U.N. declaration, DEVAW and, therefore, is one of a series of triggers which, so to speak, raised violence against women out of the margins of international discourse and into the mainframe of international law.²⁹⁰

However, there are three core ways in which General Recommendation 19 is deficient.

First, as its name suggests, General Recommendation 19 is of interpretive value only. It does not constitute an amendment to the treaty and, again depending on one’s interpretation of CIL, it is not clear whether it is binding on member states.²⁹¹ After all, this is not a resolution or declaration by the community of states represented in the General Assembly. It is an interpretation by the committee endowed with the power to administer the treaty. To the extent to which this could be viewed as binding CIL is contentious.

The recommendation points out that discrimination “is not restricted” to acts of government but it does not authoritatively extend responsibility to private conduct; rather it reminds state parties that they “may also be responsible for private acts if they fail to act with due diligence to prevent violations of rights.” No right against systemic intimate violence is established by this paragraph and certainly no clear state obligation manifests. While the first recommendation calls on state parties to overcome gender-based violence, “whether by public or private act,” it remains a recommendation, which can be applied to systemic intimate violence only by extrapolation.²⁹²

Second, even though there is sufficient content in General Recommendation 19 to argue that states should investigate, prosecute and punish systemic intimate violence, and pay compensation if they fail to do so, there is no express statement to this effect. As far as the text of General Recommendation 19 is concerned, there is only tentative authority that systemic intimate violence is a violation of a woman’s rights for which her state can be held responsible.

Third, the underlying theory of General Recommendation 19 “is that improving women’s status with relation to men will reduce their vulnerability to violence.”²⁹³ In other words, General Recommendation 19 links violence against women to discrimination. At a purely intellectual level, this is correct: violence against women is a direct consequence of discrimination.

288 Article 24(r)(iv).

289 Article 24(r)(v).

290 See SALLY ENGLE MERRY,HUMAN RIGHTS AND GENDER VIOLENCE TRANSLATING INTERNATIONAL LAW INTO

LOCAL JUSTICE 76 (2006).

291 Patrick Kelly, The Twilight of CIL, 40VA.J.INT’L L.449 (2000) (rejecting CIL as a source of international law).

292 Article 24(a).

293 SALLY ENGLE MERRY,HUMAN RIGHTS AND GENDER VIOLENCE TRANSLATING INTERNATIONAL LAW INTO LOCAL

JUSTICE 77 (2006).

However, it is not necessarily the best approach in international law. This is because many states actively practice gender discrimination or gender differentiation but nonetheless strive to eradicate violence against women. In linking violence to discrimination in such absolute terms, it becomes even more difficult to obtain the cooperation of stratified states. For example, Palestinian women have argued for a reinterpretation of Islam that would grant them greater safety, without requiring the equivalent treatment of men and women that would contradict the tenets of Islam.²⁹⁴

This is a difficult line to walk. It is counter-intuitive to discuss the reduction of violence against women without a commitment to gender equality. However, the heterogeneity of nations seems to require us to slice the cord linking violence against women to discrimination. While it is far from ideal, it should still be possible to lobby in certain states for the safety of women, albeit at the most basic level, within the confines of gender stratification. I emphasize that this is not ideal. However, encouraging states to comply with the narrow norm of reducing systemic intimate violence may introduce more state parties to the women’s rights discourse.