In her recent report, Dr Dubravka Simonovic, Special Rapporteur on violence against women, its causes and consequences, examined the adequacy of the legal framework in preventing and addressing gender-based violence. Lisa Gormley considers the conclusions and recommendations.
A new report from the Special Rapporteur on violence against women, its causes and consequences, on the adequacy of the international legal framework on violence against women is not a dry, technical report – it is a striking account of the dense tapestry of international treaties and case law showing the stories of women’s lives. As I read this report, I reflected on a number of questions. The most obvious being: why are we still asking for an end to violence against women, when international law has stated for 25 years – since the adoption of CEDAW General Recommendation 19 in 1992 – that we are entitled to this already?
I use the term “we” advisedly. One in three of us women and girls will experience gender-based and/or sexual violence, and we all experience the discrimination at the root of this violence. I have no doubt that all of us have supported someone we know, through our friendships and relationships with women and girls in our families and neighbourhoods, in coming to terms with rape, domestic violence and other forms of gender-based violence.
Are States’ legal obligations not taken seriously? Is the current international legal framework sufficient or do we need a new international treaty on gender-based violence?
To make this assessment, we need to consider what a treaty is and what a new one would do that is so special. A treaty is a political commitment – we have that in successive General Assembly resolutions and now the Sustainable Development Goals (SDGs). A treaty is also a legal commitment – we have that in the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). Indeed, the CEDAW Committee’s General Recommendation 35 (GR 35) identifies gender-based violence as a breach of international customary law. This discriminatory violence has also been recognised as a violation of: the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of the Child and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
In the Americas, Africa and Europe, there are specific regional human rights treaties which address violence against women. While there is a lack of regional treaties in the Asia and Oceania regions – both on human rights generally and on combatting violence against women – the Council of Europe Convention on preventing and combating violence against women and domestic violence is open to accession by any state. Having taken part in the negotiation of that treaty, I am absolutely convinced the legal principles it reflects are global, not European, so that it would be effective and appropriate for any state to become a party.
Is the persistent failure on the part of States to eradicate violence against women down to the legal framework? What else is going on, to contribute towards, or obstruct, effective State actions? And what are the solutions that might make a difference?
What we need is, as the Special Rapporteur puts it “a dynamic State response which includes the necessary resources and political will to create change.” How do we get there – for each and every woman and girl in each and every State in the world? The Special Rapporteur makes a number of proposals, some drawn from the submissions received, some her own ideas.
Since the start of her term, the Special Rapporteur has proposed making the intersections of international and regional human rights accountability processes stronger and clearer, with the aim of better implementation. She has called for streamlining approaches, building on leadership from international courts, treaty bodies, independent experts, and international and regional political bodies – including the Security Council and the General Assembly, as much as the Human Rights Council.
This streamlining would result in a cumulative effect, consistently repeating and reminding every government of its obligations. Failures in prevention, investigation, prosecution and reparation in each national context should be taken up, scrutinised and measures taken, in terms of policy-making and allocation of resources, to remedy these failures.
The CEDAW Committee has a central role in this, which is a reason why the Special Rapporteur’s report and GR 35 are companion pieces. The CEDAW Committee is the global body monitoring implementation of the global legal obligation, which takes account of gender-based violence in the context of structural discrimination that women and girls face. It is vital to invest in its work.
But, like all UN human rights machinery, the CEDAW Committee is severely underfunded given the amount of work that it does. To monitor 189 States parties, the CEDAW Committee needs more resources and more time – more time for sessions, for Committee members to engage with State representatives and NGOs, and more staff to assist the members in carrying out their work.
The Special Rapporteur’s report calls for a global implementation plan. This includes processes to assess the implementation of the SDGs, especially Goal 5 on gender equality and gender based violence, Goal 16 on peace, justice, and strong institutions, and Goal 10 on eradicating inequality within and between countries, including gender inequality. Gender equality is a cross-cutting principle, and the SDGs pledge to “leave no-one behind.” Yet, the Center for Economic and Social Rights expressed concern that this summer’s High Level Review “provided stark evidence of the shortcomings of these arrangements, showcasing official national reports of dubious rigor while civil society was offered only tokenistic opportunities to participate.” It is clear that the synergies between the SDGs and existing obligations under human rights law need to be drawn out, and the accountability processes made sharper and more tenacious.
The Special Rapporteur also recommends the creation of a global observatory, which could consolidate existing legal requirements and recommendations, appraise existing State initiatives, receive and assess shadow reporting and provide civil society analysis of victims’ perspectives. A global observatory should be staffed with enough experts to carry out year-round, long-term, profound engagement with all States. This is an exciting suggestion. Who could host this global institution? What would give this sufficient political clout, to ensure that States engage in good faith and with effectiveness?
Another suggestions is that States introduce or improve national action plans (NAPs) on gender-based violence. But lessons from NAPs on the implementation of the Women, Peace and Security agenda show they are ineffective unless backed by sufficient financial and human resources. Further, it is essential that women participate in drafting and monitoring of NAPs through vigorous civil society engagement. NAPs should include existing human rights accountability mechanisms’ guidance for change. An effective NAP would address one of the Special Rapporteur’s key concerns – that most States do not have coordinated legal and policy frameworks.
What was implicit in 1992 when CEDAW GR 19 was adopted, and is made explicit in GR35, is that this obligation to eradicate gender-based violence is an immediate obligation. It must be done “with all appropriate means and without delay” – and that delay cannot be justified on any grounds (paragraph 21, GR35). It has to be done now, and I hope it isn’t misusing the modern North American term to express impatience but it should have been done “already”.
In the first of two posts inspired by recent reading, Lisa Gormley considers the role of neo-liberalism in States’ failure to implement human rights obligations especially for women and girls.
In ‘Exposing the gendered myth of post conflict transition’ Christine Chinkin and Madeleine Rees describe how as countries emerge from conflict, neoliberal imperatives, particularly the requirements for austerity, lead to disproportionate and discriminatory effects on women’s access to their human rights. I suggest that in ‘Doughnut Economics’ Kate Raworth provides an economic model, and solution.
Neoliberal austerity programmes post-conflict constitute a double burden on women through financial cuts to public services women use, including health and education, and cuts which often include jobs in the public sector where women tend to be employed. Women then tend to have access to only to low skill, low paid, vulnerable and temporary jobs, often domestic work. Where such work is not available in post-conflict States, then women and girls are often targeted by traffickers.
When States withdraw from providing services, this leads to a race to the bottom in terms of human wellbeing and dignity, which affects women disproportionately, leading to what Mary Kaldor calls ‘predatory economies’ – where, during armed conflict and post-conflict situations, social institutions are undermined so that there is no safety net. These effects are also similar in peacetime and high income countries, as was illustrated in the recent inquiry by the Committee on the Rights of Persons with Disabilities in the situation in the UK, which found systematic violations of the human rights of disabled people due to austerity.
Christine Chinkin and Madeleine Rees set out how human rights law should be implemented, with a focus on ensuring women’s economic and social rights – especially to those women who have suffered human rights violations during conflict, as transformative reparation. In ‘Doughnut Economics: Seven Ways to Think Like a 21st-Century Economist’ Kate Raworth provides an economic model which would make this possible. This book addresses the main barrier to the implementation of human rights: States’ unwillingness to provide the necessary financial and human resources, often using neoliberal arguments about austerity and a broad role for ‘free markets’ as justification.
Kate Raworth challenges the model of ‘how the world works’ provided by classical economics and its current neoliberal iteration. She provides instead an economic model embedded in the realities of human existence in the environment of our planet, an analysis of what it would take to maintain a safe global climate, within a social foundation which provides ‘a just space’ – a term which could, and I believe should, be read as the implementation of human rights for all.
Kate Raworth offers a number of elegant explanations as to why the neoliberal viewpoint is so tenacious, despite its harmful effects on the human rights of individuals. First, those with most resources are able to control the rules of how the economy works for their own ends. Her second explanation is that when considering neoliberal economics, we are dealing with a mythology and narrative drawn from a script prepared since 1947 by members of Mont Pelerin Society, via think tanks, scholarships and politicians. Kate Raworth uses an interesting analogy from literary studies of Shakespeare’s scripts: “To keep his actors on their toes, Shakespeare handed each member of the troupe only their own lines and cues to learn, intentionally leaving them in the dark about the unfolding plot. Soon after his death, however, over-zealous editors added in complete lists of characters and… introduced many parts along with their tell-tale traits. Describe a character as “a usurping duke” and the actors already suspect that past wrongs are waiting to be righted. Name another as ‘an honest old counsellor’ and they know his word is to be trusted…. With such a character list, the play is pregnant with plot and the story ahead almost self-fulfilling.”
If we make a similar list of the characters in our current economic drama, we find:
THE MARKET – which is efficient, so give it full rein
BUSINESS- which is innovative, so let it lead
FINANCE – which is infallible – so trust in its ways
TRADE – which is win-win – so open your borders
THE STATE – which is incompetent – so don’t let it meddle.
Other characters not required on stage:
THE HOUSEHOLD – which is domestic, so leave it to the women
THE COMMONS – which are tragic, so sell them off
SOCIETY – which is non-existent – so ignore it
EARTH – which is inexhaustible, so take all you want.
Kate Raworth proposes that we free the characters in our current economic drama from those expectations, drawing on a wealth of economic, sociological and historical research to provide for an alternative vision, with the priority given to:
EARTH, which is life-giving – so respect its boundaries
SOCIETY, which is foundational – so nurture its connections
THE ECONOMY, which is diverse – so support all of its systems.
Her comparison of the two scripts shows that it isn’t naïve to think that domestic and international economies and societies can be organised differently – as such views are often portrayed – but that investment in human rights and human potential is possible, within a context of safety for Earth’s climate.
This is expressed in the Doughnut diagram:
What exactly is the Doughnut? […] Below the Doughnut’s social foundation lie shortfalls in human well-being, faced by those who lack life’s essentials such as food, education and housing. Beyond the ecological ceiling lies an overshoot of pressure on Earth’s life-giving systems, such as through climate change, ocean acidification and chemical pollution. But between these two sets of boundaries lies a sweet spot- shaped unmistakeably like a doughnut – that is both an ecologically safe and socially just space for humanity. The twenty-first century task is an unprecedented one: to bring all of humanity into that safe and just space.
In my next post I will focus on how ensuring gender equality, especially the political empowerment of women in our societies, is a vital part of resourcing of economies for the well-being of people and planet.