Why a Treaty? Puja Kapai

Presented 4th March, 2015

Puja KapaiI wanted to look at this question from the perspective of what the CEDAW does not offer or what existing frameworks do not offer, and how that can help drive an argument for why we need a dedicated treaty for violence against women.

CEDAW doesn’t expressly mention VAW. Despite this, advocates have long relied on the treaty and its various provisions as indirectly signaling a call for an end to violence. The argument was predicated on the basis that in order to meet the CEDAW obligations a state part must necessarily address any barriers or impediments to women’s access to a full range of rights that are enshrined in CEDAW. In these circumstances the focus of CEDAW’s articles is being on achieving equality and non-discrimination, as without freedom from violence women would not be able to enjoy these fundamental rights. Advocates frequently use Article 5 which speaks to the issue of culture and tradition impacting equality as a systemic issue whereviolence is condoned in a particular cultural context. To supplement these arguments advocates refer to the general recommendation 19 which is very useful and very comprehensive, and has formed the bulk of the advocacy work withinthis framework. In 1993 the first international human rights document that was dedicated to the subject of VAW was passed as a Resolution of the UN – the Declaration on the Elimination of Violence against Women – it is a fairly comprehensive document again, which would serve as a useful reference point for any treaty drafted. The declaration identified and defined relevant issues pertaining to VAW in all its manifestations. It is a progressive and groundbreaking document that followed the CEDAW and mapped out the concerns we’ve seen arising in the context of work relating to VAW. Despite these resources, there has been little success in bringing states to account effectively, especially given rising figures pertaining to VAW around the world. State parties often argue that their criminal and civil laws adequately provide for a protective framework and remedies against such violence, and that any violence that continues to be perpetrated is a social problem that needs to be tackled, and that they aredoing as much as possible in terms of the law.

However, pitching violence as a form of discrimination against women, and thereby undermining equal access to otherrights, is not the strongest argument to compel states into action to eradicate violence. The perpetration of violence is systemic and structural. Culture as well as the way in which society and its institutions are organised perpetuate these structural and systemic hierarchies of domination in the social sphere and personal sphere. To rely on discrimination as a route to tackle violence, therefore, fails to broach the issue head-on: that violence and the systems that enable its perpetuation or manifestation without redress is unacceptable, not for its discriminatory impact on women but for various other significant reasons grounded in our preexisting human rights commitments, including inherent dignity of all human beings. Thus, the present framework represents only a tangential link between the CEDAW framework and what we’re seeking to achieve insofar as our goal is to hold states accountable for recognising violence in its various manifestations and addressing violence against women comprehensively and effectively. What we are looking for is a comprehensive framework that can address each aspect of political and social life that contributes to the vulnerability of women in general but also, particular groups of women, and their being prone to being victims of violence. Discrimination is not the strongest argument to rely on, and yet these are the terms that the existing discourse is largely limited to because of the framing of VAW under the CEDAW framework given that it is not specifically addressed. In these circumstances, the argument would be that a treaty dedicated to VAW would serve a distinct and focused purpose but would also be multifaceted in its coverage of a range issues pertaining to VAW and be concerned with outcome-oriented approaches to justice in response to VAW and its eradication.

What will such a treaty look like? How will it address these fundamental gaps in the discourse? A binding treaty will concretize emerging customary international consensus on responsibility to protect vulnerable groups, which we have seen emerging over the last decade or so, particularly for women and girls. By institutionalizing the principle to protect within a treaty, you then have a mechanism to hold the state parties accountable to the high standards laid out in the treaty, and that mechanism would then ensure more systematic and coherent processes for accountabilitycompared to what we see currently in the reporting process, where VAW is reported as part and parcel of the CEDAW framework or other international treaty instruments that states are a party to. The treaty itself would imbibe a mechanism to be used as a tool for evaluating state performance in relation to the different aspects of the responsibility to protect women and girls from a range of types of VAW from time to time during the reporting cycle, to have a more targeted review of states fulfilling obligations than what we have at the moment. Such a principle of ‘responsibility to protect’ would entail a need to put in motion various institutions and processes including prevention strategies, education, legal protections that comply with high international standards on prohibition against violence, prosecution processes and incorporate access to justice, punishment for violations of these laws and reparations to the victims in response to the wrong done and harm suffered. So you have a stage by stage, systematic approach that outlines with some precision the role of the state in striving to eliminate violence, to educate about violence, to protect women through particular approaches, and to make it the responsibility of the state machinery to ensure that justice is done where such violence is perpetrated. If the state fails to provide such an institutional framework for protection and reparations, the state should recognise that it will be help accountable for having failed in its international responsibility to its citizens in this regard. Such a treaty would highlight the key components for an approach that will inculcate a stronger degree of accountability, and it will begin with a legal definition of what constitutes violence. At the moment we only have definitions encapsulated in the documents of the WHO and the Declaration onVAW, but these are non-binding instruments and leaves it to states to determine whether to include all components of the international definitions into their legislative framework. On the other hand, the treaty would ensure greater compliance because it would provide an exact reference point in terms of various aspects of violence that are required to be addressed within the state framework if you are a party to that treaty. In one sense, it may be said that the treaty would serve to bring together in one place the emerging consensus in relation to the customary international legal principle pertaining to stateobligations to protect women and girls against violence.

Moreover, the treaty would be instrumental in identifying the typical barriers to help seeking that are problems across various victim groups, and I think this is a really fundamental point, because it is something that affects all frameworks around the world regardless of how good they are because you could have model legislation that looks great on paper, but we’re beginning to realise there are a numerous barriers that do not account for the substantive impact of the laws, the social and political context, and the situation of women victims and their ability to avail of these systems. The treaty should contain provisions on substantive obligations toensure that institutional and policy approaches account for these barriers and make their systems more accessible, so that these are not mere paper protections. In that way, a dedicated treaty could outline a specific impact of economic, educational, social, cultural, gender, language, health, immigration status, racial, religious and other factors that impact help seeking currently and the understanding of violence and access to state machinery. This wouldoblige states to provide a more sensitised system and set of institutions to ensure that the impact of these factors insofar as they impede access to the institutions for protection is minimized as far as possible. This is not something that any of the treaties do at the moment. This is why state parties report that they have adequate laws to ensure protection and punishment. Therefore, the current reporting process leaves much to be desired because although committee members often question states as to how a particular norm operates in their social and legal context, but the states are not pressed hard enough on these barriers, and how they intersect to impede justice for women and make violence such a big problem. This may also indicate the need to institutionalise in the treaty an obligation on all state parties to collect and report data in relation to access to justice, the number and groups of women who seek information about and assistance for violence against women,etc., including outcomes of cases filed.

Such a treaty would also more broadly identify international best practices pertaining to implementation of a rigorous protection system and service provision. There are numerous examples globally that could inform the treaty drafting process. For example, it could set a standard provision for budget allocation to tackle VAW, in terms of percentage of countries GDP for example. It could call for a review on a periodic basis for submission to the treaty body in between tworeporting cycles. It could make it mandatory for the state to collect the data related to violence against women and require that such data be disaggregated by key variables to identify high-risk groups within their country. A more targeted approach to rooting out violence at the state level can be facilitated in this manner by examining each stage in the cycle of violence and help seeking through to justice. Finally, essentially the most compelling and crucial justification in my view, is that given the extremely high rates ofprevalence of violence in all countries around the world, the current mechanisms are evidently too indirect and therefore, ill-suited to this particular purpose and accordingly, inadequate to resolve the endemic problem. The current approach doesn’t go deep enough. The factors that contribute toprevalence of violence vary across countries are really deep rooted in history, traditions, and cultural frameworks and are greatly impacted by governance issues at the state level in general. We need a programmatic approach that deals with the VAW issue comprehensively and exhaustively in a single treaty, so that it can substantively address all of these issues in as exhaustive amanner as possible by drawing on the systemic failings and root causes of VAW that we have borne witness to. The current piecemeal approach doesn’t come close to offering a comprehensive framework to tackle such a deep-rooted problem. The primary justification for such a treaty therefore lies in the very fact that the discrimination-based approach to eradication of VAW is not specific or strong enough, and we need a more multidimensional and multi-level approach in order to tackle violence against women on all fronts.

Puja Kapai

Associate Professor of Law, Director of the Centre for Comparative and Public Law and the Director of the Social Justice Summer Internship at the Faculty of the Law at the University of Hong Kong

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