Domestic Violence and International Law

by Meyersfeld, Bonita

• ISBN13: 9781841139111
• ISBN10: 1841139114
• Format: Hardcover
• Copyright: 2010-03-23
• Publisher: Hart Publishing

Summary

Domestic violence and International Law argues that certain forms of domestic violence are a violation of international human rights law. The argument is based on the international law principle that, where a state fails to protect a vulnerable group of people from harm, whether perpetrated by the state or private actors, it has breached its obligations to protect against human rights violation. This book provides a comprehensive legal analysis for why a state should be accountable in international law for allowing women to suffer extreme forms of domestic violence and how this can help individual victims. The author pushes the boundaries of the doctrine of states' 'Responsibility to Protect', a developing area of international law, which holds states responsible for the failure to protect vulnerable groups from political violence, such as ethnic cleansing, mass rape, sexual slavery or torture. Where the violence is equivalent, this obligation ought to extend to victims of private violence. It is irrelevant that the violence is perpetrated by individuals and not state actors such as soldiers or the police. The state's breach of its responsibility is in its failure to act effectively in domestic violence cases; and in its silent endorsement of the violence, it becomes complicit. The book seeks to reformulate academic and political debate on domestic violence and the responsibility of states under international law. It is based on empirical data combined with an honest assessment of whether or not domestic violence is recognised by the international community as a human rights violation.

Author Biography

Bonita Meyersfeld is an international human rights lawyer, specialising in violence, gender and development and is currently associate professor at the University of Witwatersrand School of Law and Head of Gender at the Centre for Applied Legal Studies in South Africa. She is also an editor on the South African Journal of Human Rights.

Table of Contents

Foreword	p. vii
Acknowledgement	p. ix
Table of Cases	p. xv
Table of International and Regional Instruments	p. xxi
Table of National Legislation	p. xxix
Introduction	p. xxxiii
Domestic Violence as a Violation of International Human Rights Law	p. 1
Introduction	p. 1
Sources of International Law	p. 3
Complexities of Customary International Law	p. 7
The Elements of Customary International Law	p. 7
Traditional Theories of Customary International Law	p. 10
Contemporary Theories of Customary International Law	p. 11
Applying Customary International Law to Domestic Violence	p. 13
Traditional Theories of Customary International Law	p. 13
Contemporary Theories of Customary International Law	p. 14
Is there an Emerging Norm Prohibiting Domestic Violence?	p. 15
Women's Rights in International Law-Historical Overview	p. 16
Violence against Women in International Law-Historical Overview	p. 18
Domestic Violence in International Law-Historical Overview and Status Quo: 1946-2000	p. 24
1946: Commission on the Status of Women	p. 24
1979: CEDAW	p. 26
1979: CEDAW Committee	p. 29
1985: UN Resolution	p. 30
1990: UN Resolution	p. 32
1992: CEDAW Committee General Recommendation 19	p. 34
1994: DEVAW	p. 37
1995: Beijing Platform for Action	p. 39
Domestic Violence in International Law-Historical Overview and Status Quo: 2000-09	p. 41
2000: The Cedaw Optional Protocol	p. 41
2000: UN General Comment No 28	p. 58
2004: General Assembly Resolution on the Elimination of Domestic Violence against Women	p. 60
1994-2009: Reports of the Special Rapporteur on violence against women, its causes and consequences	p. 62
2005-06: Resolution and Action by the Office of the High Commissioner for Human Rights	p. 67
2001-08: Resolutions of the Commission on Human Rights and the Human Rights Council	p. 67
2004-09: Further General Assembly Resolutions	p. 69
2006-08: Work of the Secretary-General	p. 74
2000-09: Work of the Treaty Monitoring Bodies	p. 77
The Approach of Regional Human Rights Law and Bodies to Domestic Violence	p. 79
Inter-American System	p. 79
European System	p. 82
African System	p. 89
Specification of Certain Forms of Violence against Women in International Law	p. 91
Mass Rape	p. 92
Female Genital Cutting	p. 95
Trafficking	p. 97
The Writings of Respected Authors and Scholars	p. 98
The Distinction between Public and Private	p. 100
The State's Role	p. 102
Cultural Relativism	p. 103
Discrimination and Violence	p. 105
Conclusion	p. 106
Freedom from Systemic Intimate Violence: The Human Right and Corresponding State Obligation	p. 108
The Substance of the Right	p. 108
Exploring the Internationalising Elements of Domestic Violence	p. 109
The Elements of Systemic Intimate Violence	p. 111
Severe Acts of Emotional or Physical Harm	p. 111
Continuum of Harm	p. 118
Between Intimates	p. 122
Group Vulnerability of Women	p. 123
The Failure of the State to Help	p. 134
Moving from an Emerging Norm to a Right in International Law	p. 142
Steps Needed in International Law	p. 142
The First Step: The Enunciation of a Specific Legal Right	p. 144
The Second Step: Political Consequences of Domestic Violence	p. 147
The Third Step: Bringing Domestic Violence into the Remit of Non-Gender-Specific Human Rights Bodies	p. 150
Good Governance Practices: What States Should Do to Protect Against Systemic Intimate Violence	p. 151
Legislative Steps	p. 152
Anti-discrimination Provisions	p. 154
Acts of Violence	p. 156
Continuum of Harm	p. 159
Relationship	p. 160
Criminal v Civil Sanctions	p. 160
Balancing Civil and Criminal Sanctions: The Protection Order	p. 164
Compensation and Damages	p. 169
Evidence and Burden of Proof	p. 170
Labour Laws	p. 170
Murder by Victims	p. 172
Fair Procedure and Rules of Justice	p. 175
Remedies and the Provision of Services	p. 176
Police Protection and Implementation of the Law	p. 176
Statutory Obligation to Protect	p. 180
Training	p. 180
Specialised Units	p. 181
Female Officers	p. 181
Data and Inter-departmental Communication	p. 181
Police Powers	p. 182
Judiciary and Judicial Agents	p. 182
Knowledge of Rights	p. 184
Shelters	p. 186
Emergency and Long-term Health and Economic Well-being	p. 188
Statistics, Indicators and Budget	p. 189
National Action Plans	p. 190
Conclusion	p. 191
State Responsibility in Relation to Systemic Intimate Violence	p. 193
Principles of State Responsibility	p. 193
Background	p. 194
Who are the Subjects of International Law?	p. 195
Doctrine of Denial of Justice	p. 200
Is a State Responsible for the Actions of Non-State Actors?	p. 203
Elements of State Responsiblity and their Application to Systemic Intimate Violence	p. 205
Conduct Element	p. 205
Wrongfulness Element	p. 227
Circumstances Precluding Wrongfulness	p. 237
Application of the Justification Principles to Systemic Intimate Violence	p. 241
Competing Values: Privacy	p. 243
Fault and Knowledge	p. 246
Role of the Judiciary	p. 249
Consequences of an Internationally Wrongful Act	p. 250
Conclusion	p. 250
The Benefits of International Law for Victims of Systemic Intimate Violence	p. 252
Non-coercive Compliance Theory	p. 252
The Great Debate: Is International Law Effective?	p. 254
Suspicion of International Law in Brief	p. 254
Support of International Law in Brief	p. 255
The Multi-Faceted Process of International Law	p. 256
Norm Infiltration	p. 256
Symbiotic Relationship between National and International Law	p. 257
Deficiency Not Nugatory	p. 258
Proliferation of Actors Facilitating Compliance with International Law	p. 259
Functions of International Human Rights Law in respect of Violence against Women	p. 266
International Law Leading to Change: The Expressive and Implementing Functions	p. 266
How International Law Changed the Legal Response to Mass Rape	p. 269
How International Law Changed the Legal Response to Enforced Disappearances	p. 275
How International Law Changed the Legal Response to FGC	p. 279
How International Law has Already Changed the Legal Response to Asylum and Domestic Violence	p. 284
Non-coercive Compliance Theory in respect of Systemic Intimate Violence	p. 289
Before DEVAW	p. 290
After DEVAW	p. 291
Domestic Violence in Mexico Before and After DEVAW	p. 292
Domestic Violence in Nicaragua Before and After DEVAW	p. 300
Domestic Violence in Sweden Before and After DEVAW	p. 306
General Examples of Improvements in Domestic Violence Laws and Policies	p. 311
Conclusion	p. 316
Index	p. 317
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