A global treaty on violence against women and girls would build upon existing regional momentum, fill a normative gap at the global level, provide clear guidelines, and help further develop domestic protections for survivors.
There is a need for a new international treaty on violence against women and girls. There is no global legally binding treaty on this issue, but we do have regional agreements that have been quite successful, such as the Belém do Pará Convention, which covers the Americas. The success of the Belém do Pará Convention provides evidence of the importance of more specific international instruments, and the need for an instrument like this with global coverage.
A new treaty would address the normative gap at the global level
A new global treaty that focuses solely on the issue of gender-based violence against women and girls would help address the normative gap that exists in international human rights law. There is no global legally binding treaty that textually, unequivocally, and comprehensively addresses violence against women and girls. The UN Convention on the Elimination of Discrimination Against Women (CEDAW) provides some protections, but its failure to explicitly address key topics, including “rape,” “assault,” or even “violence,” make CEDAW an inadequate legal framework for this issue.
The level of detail and specificity needed to address gender-based violence requires the adoption of a separate treaty. No other human rights treaty has ever been amended to substantially change its normative language, add definitions and general obligations, or address issues of prevention, investigation, and reparations, or to consider new domestic and international implementation mechanisms. Such broad changes have been made through the adoption of new, more specific, treaties.
While the CEDAW Committee has issued General Recommendations Nos. 19 and 35 to complement CEDAW and address violence against women more specifically (as Marsha Freeman notes in a related post), the binding nature of such soft-laws is often questioned by States. And although there are regional treaties in the Americas, Europe, and Africa that specifically address violence against women and girls, those regional standards do not apply to other States in Asia, Oceania, the Middle East, and other parts of the world. Thus, there is a need for a separate legally binding treaty on violence against women to fill this normative gap at the global level.
The Belém do Pará Convention narrowed the normative gap in the Americas
More than twenty years ago, the Organization of American States (OAS) adopted the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence Against Women “Convention of Belém do Pará” (BDP) to address the normative gap on gender-based violence in that regional system. This instrument provided a definitional foundation for violence against women and girls that includes “any act or conduct, based on gender, which causes death or physical, sexual or psychological harm or suffering to women, whether in the public or the private sphere”. This definition is more comprehensive than those found in the other human rights treaties within the OAS, and includes physical, sexual, and psychological violence, as well as domestic violence.
An international treaty that definitively frames violence against women and girls as a human rights violation in similar terms is crucial to avoid the perception that gender-based violence is a private matter that states cannot or need not address.
The Belém do Pará Convention provides sufficient specificity to address the complexities and nuances that arise in the context of gender-based violence. Precise definitions, such as those in BDP and in the other regional treaties on violence against women, provide clarity to States and survivors, as well as to domestic and international monitoring, implementation, and enforcement mechanisms. Before BDP existed, the Inter-American Commission and Inter-American Court of Human Rights had to come up with creative interpretations of more general human rights treaties to address gender-based violence cases. The resulting jurisprudence was inconsistent and did not address this human rights violation adequately. For example, prior to the Inter-American Court’s decisions in the Castro Castro and Cottonfield cases, where the Court began to apply BDP, the Court missed opportunities to find state responsibility for acts of violence against women and girls. Instead, as if trying to force a square peg in round holes, the Court found violations of more generic provisions of the American Convention on Human Rights that did not specifically address gender-based violence.
BDP provided the legal framework necessary to address violence against women directly. The Inter-American Commission and Court have now developed a stronger jurisprudence that more adequately addresses violence against women as a human rights violation separate and distinct from the general prohibition of discrimination on the basis of gender.
A new global treaty would similarly help provide more normative specificity across regions.
States across the Americas have relied on BDP to further develop domestic protections on gender-based violence. With the notable exceptions of the United States and Canada, all States in the Americas and the Caribbean have ratified BDP (that is, 32 out of 34 OAS Member States). Several of those States have implemented important changes in their domestic laws and practices to reflect the terms of BDP. For example, Brazil, in response to the María da Penha case, strengthened its criminal response to domestic violence, established specialized domestic violence courts, and created several prevention and treatment centers and mechanisms for survivors. Mexico has also relied on the normative and jurisprudential framework of the Inter-American System, particularly BDP, to further develop its domestic norms and create educational campaigns on gender-based violence. These and other States are also developing national plans of action and protocols to address violence against women and girls, including trainings of the justice sectors to improve access to justice without discrimination and avoiding impunity. These regional developments highlight the value of having a specialized treaty on the subject. An international treaty would facilitate similar normative development on a global scale.
A new global treaty would build upon successful regional experiences
Everywoman Everywhere is advocating for a treaty that builds from this regional normative framework. As a member of the treaty’s Steering and Drafting Committees, I strongly believe that a new treaty will allow us to apply what we have learned about the strengths and weaknesses of CEDAW and the regional treaties that address violence against women and girls. Addressing violence against women is not a zero-sum game in which we have to choose between opposing normative frameworks. A new treaty would not substitute, but rather complement existing domestic, regional and international normative frameworks.
Yes, the eradication of gender-based violence justifiably requires the allocation of additional resources. Gender-based violence is currently the most prevalent human rights violation in the world.
A new treaty would provide the momentum necessary to push for the additional resources needed to address this global problem. A new treaty also gives us an opportunity to rethink treaty monitoring and implementation mechanisms. For example, we have learned that the effectiveness of a treaty rests on the strength of domestic mechanisms. Therefore, we should advocate for a new treaty that requires states to create and fund strong domestic implementation bodies.
Now, we have the opportunity to build upon this wealth of experience and create a better and more effective domestic and international legal framework and implementation mechanism to prevent, punish, and eradicate gender-based violence at a global level.
Francisco J. Rivera Juaristi is an Associate Clinical Professor and Director of the International Human Rights Clinic at Santa Clara University School of Law. He is also a member of Everywoman, Everywhere.
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