Introduction

Women’s rights, at the international, regional and national levels, have clearly come a long way since the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) came into force over thirty years ago.¹ Yet, it is equally clear that today women are still denied full access to their rights across the globe. While the different rights that are denied to women are all intersectional and important, the violation of women’s rights that is the most striking, is the ongoing situation of domestic violence.

‘Domestic violence occurs to a greater or lesser degree in all regions, countries, societies, and cultures; it affects women irrespective of income, class, or ethnicity.’² There are no barriers. Domestic violence is ‘the most frequently occurring violence that women around the world experience.’³ It is seen as a major concern not only in human rights terms, but also as a policy issue in terms of health⁴ and thus it can be seen that domestic violence affects women’s abilities to access and enjoy their other human rights. The prevalence of domestic violence has caused some authors to label it an ‘international crisis’.⁵ Considering how long CEDAW and other international human rights treaties have been in existence, this continuing state of affairs has led a commentator to ask: ‘Has international human rights law actually offered any advancement to women?’⁶

States, Non-governmental organisations (NGO), and the human rights community have not stood idly by, and have attempted to use CEDAW to provide guidance in their efforts. This essay will examine to what extent the Convention and its Optional Protocol (OP-CEDAW)⁷ have been effective in combating domestic violence. ‘Combating’ in this instance refers to CEDAW’s role in shaping how courts/committees address their responsibilities in responding to domestic violence – by providing further legal recourse for women and, crucially, in showing that the State bears a level of responsibility for private domestic violence disputes. By examining the influence of CEDAW on other human rights treaties, as well as the impact of its complaints procedure, General Recommendations (G.R.), and Concluding Remarks, this essay will measure the contribution of the Convention in addressing domestic violence.

On the influence of CEDAW, a commentator has rightly noted that :
it cannot be assumed for certain that the measures taken by these states were necessarily prompted by international human rights standards. Indeed, it is extremely difficult to isolate the influence of bodies such as the CEDAW Committee on change occurring at the national level, as states rarely say that they are taking action because of the recommendations of such bodies.⁸

It is often true that States do not want to present their actions as occurring from outside pressure, and thus are slow to give acknowledgment. Despite this, there are some cases where these States specifically mention CEDAW, and at other times it has been (cautiously) inferred. Therefore, while there is still much work to be done, CEDAW and its components is an effective way to ensure protection through legal recourse to victims of domestic violence as part of a larger strategy.

CEDAW Influence

A way to measure CEDAW’s influence is to see how it has inspired regional, national and municipal laws which seek to combat domestic violence.

‘CEDAW principles have been integrated into new constitutions and added to more established constitutions through amendments.’⁹ Andrew Byrnes states that ‘in the final analysis it is the implementation of the Convention’s guarantees at the national level that is critical.’¹⁰ This is a valid point, especially with regards to domestic violence. Domestic violence provisions have been included in the new constitutions of Brazil (1988), Columbia (1991) and South Africa (1994). In Columbia, ‘CEDAW had become a central part of campaigns for women's human rights’¹¹ ; a Constitutional Court was established in 1991, and the following year it paved the way for the rights of victims of domestic violence to be recognised.¹² In Brazil, CEDAW was ‘a very useful tool’ for campaigners of women’s rights in the new constitution, which ultimately included provisions on domestic violence which paralleled CEDAW.¹³ Using CEDAW to champion for these provisions granted ‘increased political legitimacy’ to the demands that these NGOs made.¹⁴ In South Africa, CEDAW found effect in the Domestic Violence Act (1998).¹⁵ CEDAW and other international human rights law had an impact on the drafting of Japan’s anti-domestic violence bill (enacted 2001).¹⁶

Additionally, CEDAW has inspired the UN Declaration on the Elimination of Violence against Women (DEVAW),¹⁷ which in turn has inspired treaties such as the Belém do Pará Convention; at the time, this aforementioned treaty was ‘the only regional multilateral human rights treaty to deal solely with violence against women, [and which] describes the right of every woman to be free from violence as encompassing, among others, the right to be free from all forms of discrimination.’¹⁸ In the European context, the recent Council of Europe Convention on preventing and combating violence against women and domestic violence (2014) also pays homage to CEDAW:
Drawing in particular on the framework of measures of the Convention on the Elimination of All forms of Discrimination against Women (CEDAW) and case law developed by the CEDAW Committee, it is firmly based on the premise that violence against women cannot be eradicated without investing in gender equality and that in turn, only real gender equality and a change in attitudes can truly prevent such violence.¹⁹

McQuigg, while finding some aspects problematic with this aforementioned Convention, ‘argues that the adoption of this instrument is certainly a very significant development for the movement to combat domestic violence’.²⁰ These examples from various States and regions thus clearly demonstrate that CEDAW has paved the way for, and influenced, anti-domestic violence human rights provisions worldwide.

Individual Complaints Procedure

CEDAW’s OP entered into force in December 2000, and over 100 States have ratified it. ‘By ratifying the Optional Protocol, a State recognizes the competence of the Committee on the Elimination of Discrimination against Women -- the body that monitors States parties' compliance with the Convention -- to receive and consider complaints from individuals or groups within its jurisdiction.’²¹ The OP-CEDAW allowed for individuals or groups to make a complaint to the CEDAW Committee about violations of their convention rights by the State. It also created an inquiry procedure by which the Committee could investigate State Parties if it believed that there was a particularly gross or systemic violation of Convention rights occurring.

The individual complaints procedure under the CEDAW’s OP has come in for some strong criticism by several commentators.²² Murdoch states that the OP-CEDAW has been poorly understood and underused by NGOs, and that ultimately it has ‘not led to any practical benefit’.²³ This is largely due to the lengthy and costly process involved (common with all international Committees and Courts), as well as a lack of awareness that such avenues are even open. Despite this underuse, one of the few areas that have been considered before the Committee is States’ ineffective protection against domestic violence.

As ‘much of the drive towards the adoption of the Optional Protocol was prompted by the issue of violence towards women, particularly after CEDAW had defined violence against women (including domestic violence) as a form of discrimination against women’,²⁴ it should come as no surprise that almost half of the admissible cases before CEDAW were to do with domestic violence. In each of the cases,²⁵ the Committee found violations of States’ obligations to protect women from domestic violence. In these examples, the Committee stressed that allegations of domestic violence must be adequately investigated,²⁶ that remedies must be adequate,²⁷ and that States cannot rely on the existence of laws alone, they must be actively enforced.²⁸ The case law of CEDAW is also important because it breaks down the public/private divide on State obligations, and is willing to find States in violation of their obligations in cases where they are not directly responsible.²⁹

Despite the positive developments that have come about in these rulings, Murdoch feels that the quality of decision-making can be poor.³⁰ For instance, Murdoch laments the Committee’s conception of the ‘exhaustion of domestic remedies’ as being too narrow, and notes that the N.S.F. v. U.K.³¹ case was deemed inadmissible because the applicant ‘had never formulated any allegation of sex discrimination in attempting to prevent expulsion, neither the domestic authorities nor the courts had thus had the chance to consider this matter’, despite the fact that the applicant faced domestic violence on her return to her husband in Pakistan.³² He further states that the Committee may make decisions that, for instance, the European Court of Human Rights (ECtHR) would not agree with,³³ although if used properly such a discrepancy could provide an opportunity: ‘there is a powerful argument supporting the establishment of case law which is indeed to some extent incompatible with existing norms, for a right of communication resulting in decisions which merely replicates existing standards would not add value and simply confirm disposals by other treaty bodies.’³⁴

Murdoch notes that the cases until now have all involved ‘instantly realisable’ rather than ‘programmable’ responses.³⁵ This is problematic when it comes to domestic violence, as while instant remedies are vital (outlawing domestic violence, providing shelter etc.), it is only with long term action that domestic violence can be effectively combated. So the OP-CEDAW is something of a paradox in terms of protection against domestic violence. While it has provided some breakthrough case law in terms of domestic violence, its poor decision-making and lack of consistency will potentially harm it by minimising the weight given to its conclusions. Therefore, a more uniform- while still remaining progressive- approach to the domestic violence cases brought before the Committee will ensure its jurisprudence can be relied upon by other bodies.

In addition to the complaints procedure, the OP-CEDAW allows for the Committee to conduct an inquiry procedure where it is suspected that ‘grave or systematic violations’ of Convention rights are occurring in a State Party.³⁶ This has only ever been used on one occasion (relating to the abduction and killing of women in Ciudad Juarez, Mexico³⁷ ) and not yet in cases relating to domestic violence. If it was to be properly utilised, the inquiry procedure could be the most revolutionary untapped aspect of the OP-CEDAW. As domestic violence is so widespread and prevalent, almost any State Party could be subject to such an inquiry. This would be especially true if domestic violence is perceived as a form of torture.³⁸

It should be noted that the OP-CEDAW also protects women from domestic violence in an indirect manner. The case law of CEDAW³⁹ (as well as its G.Rs ⁴⁰ , its Concluding Observations⁴¹ and the treaty itself⁴² ), went on to inform one of the most important cases before the ECtHR on domestic violence. In Opuz v. Turkey, the State was found ‘in violation of its obligations to protect women from domestic violence, and for the first time [the Court] held that gender-based violence is a form of discrimination under the European Convention’.⁴³ This ruling thus brought the Court in line with the other international human rights bodies in its understanding of domestic violence. The case further stated that ‘in interpreting the provisions of the Convention and the scope of the State’s obligations in specific cases […] the Court will also look for any consensus and common values emerging from the practices of European States and specialised international instruments, such as the CEDAW’.⁴⁴ Specifically, the Court relied on the CEDAW Committee’s arguments that domestic violence is gender based discrimination and thus cases of domestic violence impose obligations upon the State Party to take legal and other steps to protect victims.⁴⁵ In domestic violence cases that followed (i.e. A v. Croatia⁴⁶ ) the Court used a similar reasoning, and in Eremia and others v Moldova⁴⁷ , the Court cites G.R. 28 on the need to prevent, investigate, punish and prosecute acts of domestic violence. This shows how-overall -CEDAW is an important standard setter in combating domestic violence, as it filters into other courts allowing them to evolve and become more effective.

General Recommendations

It should be noted that initially the CEDAW treaty did not contain any provisions relating to violence against women, in fact it did not even mention such an issue. Nor was domestic violence covered in any other human rights treaty at the time of CEDAW’s ratification. It was through the Committee’s G.Rs that the issue of violence against women came to the fore; it was first touched upon in G.R. No.12⁴⁸ , and elaborated in G.R. No. 19. G.R. No.19 makes explicit reference to domestic violence⁴⁹ and states that, ‘Gender-based violence is a form of discrimination that seriously inhibits women's ability to enjoy rights and freedoms on a basis of equality with men’⁵⁰ Part of this recommendation was that, inter alia:
States parties should report on the extent of domestic violence and sexual abuse, and on the preventive, punitive and remedial measures that have been taken;⁵¹ “In addition, General Recommendation No. 19 seeks to attach responsibility to the state, not only for its own acts of violence against women, but for those acts of violence against women committed by private persons where the state fails to act ‘with due diligence to prevent violations of rights or to investigate and punish acts of violence, and for providing compensation.’”⁵²

This breakdown of the public/private divide was vital in effectively combating domestic violence. As human rights law is designed to regulate the State, it was traditionally reluctant to interfere in ‘private matters’ – be that of the home or the actions of a private company. As human rights evolved over the latter part of the 20th Century, the scope has been expanded and human rights law now clearly understands that States have an obligation in what it omits from stopping others doing – be that domestic violence or polluting a river. As stated above, this understanding of domestic violence as gender-based discrimination heavily influenced the case law of the CEDAW Committee and the ECtHR.

Concluding Observations to States Parties

Whilst still fraught with difficulties, one of the main ways in which it is easier to gauge CEDAW effectiveness in protecting women from domestic violence is in the Committee’s Concluding Observations to States Parties. Byrnes states that ‘the reporting procedure…has evolved over the years into a mechanism that can be used effectively in some cases to promote the implementation of the Convention at the national level.’⁵³ For instance, China ratified CEDAW in 1980, but it was some time before it passed laws which explicitly prohibited domestic violence. Palmer states that a major influence for this decision, in conjunction with pressure from local actors, was the leadership’s worries about the international reaction to the Committee’s findings in this regard.⁵⁴ Even though it was a slow process for China, the Concluding Observations were nevertheless an effective tool.

Between previous sessions, Luxembourg was found to have generally complied with the Committee’s Observations concerning domestic violence.⁵⁵ At the State’s 2003 session, the Committee urged Luxembourg to put into effect the domestic violence Bill (2003); this has since been done. The Bill⁵⁶ provides for the expulsion of the violent partner from the home, and the law revokes a section of the criminal code that had absolved a spouse from responsibility if he murders his partner when she was in an act of infidelity.
Although it came into effect only recently, this law has already had a noticeable impact. According to information to date, 64 men have been expelled from the family home. This figure does not take account of police interventions that did not result in removal, nor does it take into account removal warrants that were rejected by the prosecutor's office.⁵⁷

Further, Luxembourg has set up services for victims of domestic violence, including an anonymous hotline counselling service.⁵⁸ The government stated that it has ‘taken the Convention on the Elimination of All Forms of Discrimination against Women as its guide for transposing measures to promote gender equality’, and to prevent domestic violence. ⁵⁹ The government further stated that the NGOs who combat domestic violence played a role in getting these laws changed; nevertheless, the media is not taking up the issue of domestic violence, and when a woman dies in these circumstances it is reported as a ‘tragic family incident’.⁶⁰ For its part, the government has run television and radio advertisements to increase awareness.⁶¹ Additionally, in 2008 legislation was enacted to prohibit female genital mutilation.⁶² It is important to note, that even with all of these efforts and the State Party meeting the Committee’s recommendations, there was a rise in domestic violence in Luxembourg between 2011-2012⁶³ and 2012-2013.⁶⁴ This trend indicates that domestic violence is not an easy issue to handle for State Parties.

Similarly, Sweden generally complied with the Committee’s Observations between sessions.⁶⁵ In the 2008 Concluding Observations, the Committee commended Sweden ‘for the range of efforts made to eliminate violence against women since the submission of its previous periodic report, including the 2007 action plan on violence, new legislation on sexual crimes from 2005 and the extension of the provisions of the Act on Restraining Orders, the Committee remains concerned at the high prevalence of violence against women and girls, particularly domestic violence.’⁶⁶ As with Luxembourg, despite Sweden complying with the Committee, there has been a steep rise in the number of domestic violence cases over the years (43% rise between 2000 – 2009).⁶⁷ This ‘rise’ may also be attributed to a rise in the reporting of cases. When Denmark was reviewed in 2002, the Committee voiced its concern that ‘married women with temporary residence permits who suffered domestic violence would worsen due to a planned amendment to the Aliens Act (2008)’.⁶⁸ In 2007, Denmark amended this Act to include special provisions on domestic violence, as well as updating the Act of Social Service in 2008 to require municipalities to provide more facilities for victims of domestic violence.⁶⁹ In Norway’s 2007 Concluding Observations, the Committee pressed for a specific law on domestic violence.⁷⁰ To date there is no such legislation, although there has been an Action Plan Against Domestic Violence (2008-2011) and a follow-up plan from 2012.⁷¹ So it would appear that, as before, Norway’s compliance is ‘somewhat patchy’.⁷²

McQuigg argues that even the Western State Parties that theoretically have the requisite finances, resources, time etc. are only partially meeting the Committee’s recommendations. She further emphasises that even in cases where States are complying ‘it cannot be assumed for certain that any progress made by states is as a direct result of the recommendations made by the Committee on a previous occasion.’⁷³ Moreover, McQuigg adds that the potential effectiveness of the Committee is hampered by the ‘wholly inadequate’ amount of time allocated to the consideration of States Parties reports, coupled with the sheer volume of reports to consider.⁷⁴ Given the seriousness and prevalence of domestic violence, perhaps a separate Committee is needed to consider this aspect of these reports.

Conclusion

How we measure the effectiveness of CEDAW in protecting women from domestic violence depends on our markers/indicators. Certainly, CEDAW and its OP have not eradicated domestic violence – it would be foolish to think it could. Rather CEDAW ‘provid[es] a framework or point of reference for policy-making, lobbying and social activism’,⁷⁵ while the various functions of the Committee ‘serve to create a forum for discussion and understanding of what rights may entail in practice. They produce material from which rights-based arguments can be framed for those who seek to demand greater enjoyment of human rights’.⁷⁶ They give international legitimacy in such efforts, and help keep domestic violence in the spotlight. Seen in this light- the standard-setting of the Convention, the case law of the OP-CEDAW, the G.R.s, the country reports and the untapped potential in the inquiry procedure, CEDAW certainly goes some way in ensuring this most basic human right is respected: to be free from domestic violence.