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1 Domestic Violence as a Violation of International Human Rights Law1

Introduction1

Sources of International Law3

Complexities of Customary International Law7

The Elements of Customary International Law7

Traditional Theories of Customary International Law10

Contemporary Theories of Customary International Law11

Applying Customary International Law to Domestic Violence13

Traditional Theories of Customary International Law13

Contemporary Theories of Customary International Law14

Is there an Emerging Norm Prohibiting Domestic Violence?15

Women's Rights in International Law桯istorical Overview16

Violence against Women in International Law桯istorical Overview18

Domestic Violence in International Law桯istorical Overview and Status Quo: 1946-200024

1946: Commission on the Status of Women24

1979: CEDAW26

1979: CEDAW Committee29

1985: UN Resolution30

1990: UN Resolution32

1992: CEDAW Committee General Recommendation 1934

1994: DEVAW37

1995: Beijing Platform for Action39

Domestic Violence in International Law桯istorical Overview and Status Quo: 2000-0941

2000: The CEDAW Optional Protocol41

2000: UN General Comment No 2858

2004: General Assembly Resolution on the Elimination of Domestic Violence against Women60

1994-2009: Reports of the Special Rapporteur on violence against women, its causes and consequences62

2005-06: Resolutions and Action by the Office of the High Commissioner for Human Rights67

2001-08: Resolutions of the Commission on Human Rights and the Human Rights Council67

2004-09: Further General Assembly Resolutions69

2006-08: Work of the Secretary-General74

2000-09: Work of the Treaty Monitoring Bodies77

The Approach of Regional Human Rights Law and Bodies to Domestic Violence79

Inter-American System79

European System82

African System89

Specification of Certain Forms of Violence against Women in International Law91

Mass Rape92

Female Genital Cutting95

Trafficking97

The Writings of Respected Authors and Scholars98

The Distinction between Public and Private100

The State's Role102

Cultural Relativism103

Discrimination and Violence105

Conclusion106

2 Freedom from Systemic Intimate Violence: The Human Right and Corresponding State Obligation108

The Substance of the Right108

Exploring the Internationalising Elements of Domestic Violence109

The Elements of Systemic Intimate Violence111

Severe Acts of Emotional or Physical Harm111

Continuum of Harm118

Between Intimates122

Group Vulnerability of Women123

The Failure of the State to Help134

Moving from an Emerging Norm to a Right in International Law142

Steps Needed in International Law142

The First Step: The Enunciation of a Specific Legal Right144

The Second Step: Political Consequences of Domestic Violence147

The Third Step: Bringing Domestic Violence into the Remit of Non-Gender-Specific Human Rights Bodies150

Good Governance Practices: What States Should Do to Protect Against Systemic Intimate Violence151

Legislative Steps152

Anti-discrimination Provisions154

Acts of Violence156

Continuum of Harm159

Relationship160

Criminal v Civil Sanctions160

Balancing Civil and Criminal Sanctions: The Protection Order164

Compensation and Damages169

Evidence and Burden of Proof170

Labour Laws170

Murder by Victims172

Fair Procedure and Rules of Justice175

Remedies and the Provision of Services176

Police Protection and Implementation of the Law176

Statutory Obligation to Protect180

Training180

Specialised Units181

Female Officers181

Data and Inter-departmental Communication181

Police Powers182

Judiciary and Judicial Agents182

Knowledge of Rights184

Shelters186

Emergency and Long-term Health and Economic Well-being188

Statistics, Indicators and Budget189

National Action Plans190

Conclusion191

3 State Responsibility in Relation to Systemic Intimate Violence193

Principles of State Responsibility193

Background194

Who are the Subjects of International Law?195

Doctrine of Denial of Justice200

Is a State Responsible for the Actions of Non-State Actors?4203

Elements of State Responsibility and their Application to Systemic Intimate Violence205

Conduct Element205

Wrongfulness Element227

Circumstances Precluding Wrongfulness237

Application of the Justification Principles to Systemic Intimate Violence241

Competing Values: Privacy243

Fault and Knowledge246

Role of the Judiciary249

Consequences of an Internationally Wrongful Act250

Conclusion250

4 The Benefits of International Law for Victims of Systemic Intimate Violence252

Non-coercive Compliance Theory252

The Great Debate: Is International Law Effective?254

Suspicion of International Law in Brief254

Support of International Law in Brief255

The Multi-Faceted Process of International Law256

Norm Infiltration256

Symbiotic Relationship between National and International Law257

Deficiency Not Nugatory258

Proliferation of Actors Facilitating Compliance with International Law259

Functions of International Human Rights Law in respect of Violence against Women266

International Law Leading to Change: The Expressive and Implementing Functions266

How International Law Changed the Legal Response to Mass Rape269

How International Law Changed the Legal Response to Enforced Disappearances275

How International Law Changed the Legal Response to FGC279

How International Law has Already Changed the Legal Response to Asylum and Domestic Violence284

Non-coercive Compliance Theory in respect of Systemic Intimate Violence289

Before DEVAW290

After DEVAW291

Domestic Violence in Mexico Before and After DEVAW292

Domestic Violence in Nicaragua Before and After DEVAW300

Domestic Violence in Sweden Before and After DEVAW306

General Examples of Improvements in Domestic Violence Laws and Policies311

Conclusion316

Index317