Photo by Nadine Shaabana on Unsplash.
The need for a new global instrument on violence against women has been advanced by Every Woman, a coalition advocating for the adoption of the so-called Every Woman Treaty (EWT). The coalition recently published a first draft of this treaty. The EWT campaign has accurately identified the UN-declared pandemic of violence against women and gender-based violence as worthy of galvanised focus. It has marshalled the justifiable outrage over this ‘shadow pandemic’ to gain momentum for its campaign for a new treaty.
However, contrary to its claims, this proposed new instrument does not represent progress in legal protections for women experiencing violence. On the contrary, EWT is a distraction from the crucial task of implementing the protections already guaranteed by international human rights law at the local/national level. The EWT initiative is flawed in several ways, but fundamentally, it is founded on a misunderstanding of the nature and role of IHRL. It rests on a mistaken analysis of the present set of protections against gender-based violence.
The Convention on the Elimination of Discrimination Against Women (CEDAW) is a treaty that protects against ‘all forms of discrimination against women’. As such, the evolving norms of international human rights law mean that CEDAW sees violence as a serious form of discrimination that gives rise to and underpins all other forms of discrimination that women experience.
EWT disregards the evolution that has taken place in protections in law since 1989, derisively referring to this proper role of progressive lawmaking as ‘retrofitting’ the treaty. Gender-based violence against women (GBVAW), not expressly mentioned in the CEDAW Convention, was declared by the CEDAW Committee in its groundbreaking General Recommendation 19 as a form of discrimination against women, prohibited by Article 1 of CEDAW. This anchor in Article 1 is key: It means that GBVAW falls under the ambit of all the CEDAW Convention articles. Contrary to the claims of EWT, states are bound to act on GBVAW.
Indeed, Article 2 sets the obligations of states to provide legislation on GBVAW (adopt, revise, remove) and practical measures (financial, training, shelters, protection orders, data). This protection is required not only through criminal law but also within all fields of public policy, such as in education, work, media, and politics. States are accountable for GBVAW stemming from their acts, those of their agents, and also that of non-State actors, when the State knew or should have known that GBVAW could occur and the State could have prevented it (due diligence principle). States must also ensure a gender-sensitive, non-biased, and competent justice system – this also applies to the police, social and health services, and other State agents (e.g. migration officers and teachers) that deal with GBVAW. States must take all measures to eradicate or modify norms, customs, and practices which condone or enable GBVAW. States have to take ‘all appropriate measures’ to realise this obligation.
By focusing on GBVAW alone, the EWT would separate GBVAW from States’ obligations on civil and political, economic, social, and cultural rights, the implementation of which are key to guaranteeing women and girls a life free from GBVAW by addressing the underlying discrimination that makes women vulnerable to violence.
Furthermore, based on constant State practice, the CEDAW Committee has stated in General Recommendation 35 that ‘the prohibition of gender-based violence against women has evolved into a principle of customary international law’. This means that all states, even those that have not ratified CEDAW, are required by the agreed-upon principles of international law, to fulfill the obligation to protect women against gender-based violence.
The EWT proponents’ allegation that CEDAW and the IHRL system contain normative gaps does more to weaken the protection against GBVAW ensured by CEDAW, and by the UN human rights system as such, than it does to strengthen it. The EWT appears ill-informed about the role of other treaty bodies that also deal with GBVAW, as well as some of the Special Procedures created by the Human Rights Council.
Monitoring is exercised by the CEDAW Committee through the State reporting process and through individual communications (cases) and inquiries (into alleged grave or systematic violations) based on the Optional Protocol. In the reporting process, the Committee adopts Concluding Observations and recommendations including on GBVAW, based on the General Recommendations mentioned above. Concluding Observations and recommendations are country-specific, detailed, and precise.
There have been numerous individual communications dealing with different forms and settings of GBVAW. In fact, a study of the jurisprudence of the CEDAW Committee showed that the largest part of its work has focused on holding states accountable to their obligations to protect against GBVAW.
The negotiation of a new treaty does not happen in a political void. We are currently experiencing a global backlash on human rights. A significant number of states have allied to actively oppose women’s rights. Negotiating a new treaty would give them the opportunity to limit the protections we currently have in place. The EWT campaign is oblivious to this context.
At the UN level, gender, sexual and reproductive health and rights, homosexuality, and women’s full enjoyment of their human rights are attacked systematically. Instead of suggesting reinforcement of the CEDAW framework, or supporting implementation of the existing mechanisms at the national level, the EWT chose to duplicate what already exists. The financial and human resources consequences would affect the whole of the treaty body system, effectively depleting the force of the current protections.
Contrary to the promises made by the EWT campaign and draft treaty, no treaty ensures that it will be fully respected by the states that ratify it. Likewise, no treaty will ensure resources for GBVAW at the national/local level.
International human rights is a system of norm creation and legal obligation agreed to by a fellowship of State parties. The human rights system of law, and human rights treaties, are not substitutes for national governments’ role in implementation of these agreed-upon norms. Through international human rights law, States commit to make available the resources needed for implementation of their obligations.
Through responsible and strategic leadership, the EWT initiative could marshal its momentum to guide States in the fulfilment of their existing obligations. Indeed, this is precisely the point of human rights treaties and their monitoring systems: national civil society organisations, feminist movements, anti-violence activists, and human rights defenders are an intended and crucial component of the fulfilment equation. Through their honest appraisal of States’ (lack of) fulfilment of their obligations, through the existing opportunities to report to the committees that monitor States, people living in their communities and countries provide balance to States’ claims.
EWT could contribute its impressive organising skills to support this practical process for implementing the protections for women against violence in all the countries where it has sought adherents to its project. The passion and outrage at the human rights violation of GBVAW marshalled by the EWT would be better geared to implement the existing legal and practical framework instead of creating a new one, with all the risks of regression and dissipated energy.
Instead, the EWT initiative represents the weakening of the present system of international legal protections against violence against women and makes false promises of bringing an end to the worldwide pandemic of GBVAW through the addition of more law.
Women and girls deserve action now, not protracted and ill-founded promises.
Patricia Schulz is a lawyer, UNRISD Senior Research Associate, and former rapporteur and member of the CEDAW Committee. Amanda Dale, PhD (Law), is an Advisory Member of the Canadian Femicide Observatory for Justice and Accountability and the Canadian Centre for Legal Innovation in Sexual Assault response, as well as the Chair of the Board of Inter Pares and Faculty at the Women’s Human Rights Institute. A longer version of their analysis is available here.