Presentation on theme: "VAW Research Briefing Yale Law School, Lowenstein Clinic - Katherine Culver, Jessica So, Tiffany Tam."— Presentation transcript:
VAW Research Briefing Yale Law School, Lowenstein Clinic - Katherine Culver, Jessica So, Tiffany Tam
Structure/Substance of CEDAW Legal Status of CEDAW and State Obligations – Convention is binding law – Affirmative obligations - states must take “all appropriate means and without delay” to eliminate discrimination against women. General Recommendations – Accepted as authoritative statements of interpretation – Gen. Rec. 19: Discrimination under Art. 1 includes gender-based violence against women. Makes clear that (1) "Gender-based violence may breach specific provisions of the Convention, regardless of whether those provisions expressly mention violence" and (2) "full implementation of the Convention require[s] states to take positive steps to prevent [VAW].” This interpretation set forth by Gen Rec 19 has been widely accepted by states, and the obligation to address VAW is seen as a core component of a state's human rights obligations under CEDAW.
Reasons for the absence of explicit mention of VAW in the text of CEDAW Proposal to include “attacks on the physical integrity of women” in Art. 6 (sex trafficking) was rejected Historical context: international human rights law focus on state actions, VAW seen as a criminal or health problem rather than human rights
Enforcement mechanisms of CEDAW Committee State Periodic Reporting – Each state party must report to the Committee on measures taken to implement CEDAW. First report, one year after entry into force and then once every four years (Art. 18). – Committee can make recommendations to the state (Art. 21). – NGOs play a significant role in this process Optional Protocol: Individual Complaints (and Inquiries) – 104 states parties to the Optional Protocol – 67 cases submitted: about half are pending, 16 were admissible, and 9 of those deal with VAW – Committee found violations of Art. 2 (states' obligation to undertake policy measures to eliminate discrimination against women) & Art. 5 (sex stereotyping), read in conjunction with Art. 1 (discrimination) & Gen. Rec. 19 in most VAW cases – Enforcement: In issuing decisions on the merits of complaints, the Committee can make recommendations. The state is required to respond on remedial steps taken (Optional Protocol Art. 7 & 9). Committee can request that states take interim measures to protect individual victims (Optional Protocol Art. 5)
Case Study: Bulgaria 3 individual complaints: V.K. (domestic violence, filed 2008, decision 2011); V.P.P (sexual violence, filed 2011, decision 2012); Jallow (domestic violence, filed 2011, decision 2012) – All found violations of several articles of CEDAW in conjunction with Gen Rec 19 on VAW V.K.’s path to CEDAW – Involvement of Bulgarian Gender Research Foundation, NGO looking to bring strategic litigation to CEDAW – Lawyer who had undergone specific training in CEDAW through Women’s Human Rights Training Institute Choice of Forum: CEDAW vs. ECtHR – Long delays at ECtHR; possibility of general recommendations under CEDAW; more favorable jurisprudence under CEDAW V.K. Outcomes – Substantive recommendations for Bulgaria: amending domestic violence laws; funding for victims’ services; training for judges, prosecutors, and law enforcement in national domestic violence law and CEDAW – Some steps toward implementation, but slow progress
Case Study: Philippines 2 individual complaints: Vertido (rape, filed 2007, decision 2010); R.P.B. (rape of young woman with disability, filed 2011, decision 2014) – Both found violations of several articles of CEDAW in conjunction with Gen. Rec. 19 on VAW Paths to CEDAW – Vertido was encouraged to file by former Philippine CEDAW Committee member & by her lawyer who was looking for a CEDAW test case – NGO leader referred R.P.B. to the same lawyer who represented Vertido – CEDAW chosen because effective domestic remedies not available & no regional alternative Experience with the Optional Protocol Communication Procedure – Collaborative process, straightforward, accessible – Advocate found the substance of CEDAW re: VAW sufficient to allege violations of the Convention and lodge effective complaint Outcomes – Vertido: Philippines government has not responded or complied with Committee’s recommendations – RPB: Decision just published Feb Advocate sees opportunity for coalition-building with disability-rights groups
Conclusions Utilization of CEDAW Optional Protocol mechanism in Bulgaria & the Philippines enabled by : – Political context – Strong civil society networks/women’s rights movements – Advocates’ proficiency in official working language Advocates in Bulgaria & the Philippines say CEDAW’s jurisprudence on VAW is robust, sufficient to hold states accountable for failure to protect against VAW – Difficulties in national implementation Advocates in Bulgaria & the Philippines suggest strategic focus on implementing existing standards – Possible strategy: train more lawyers and advocates in using CEDAW In sum: CEDAW seems to contain the necessary standards to hold states accountable for VAW-related violations. The real challenge is national implementation of CEDAW and national compliance with the Committee's decisions and recommendations. – Key recommendation: Consider pushing for national-level implementation of existing standards rather than the creation of a new international legal instrument.