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Prohibition of violence against women in the drafting process

Similarly to many UN drafting processes, the CEDAW’s emergence is generally well documented. Nevertheless, it is not possible to trace the details and reasons for some decisions in the drafting process because not every single word was recorded and not all concerns or objections were expressed clearly, officially, and in writing.32

Not a single draft version of the CEDAW contains a reference to violence against women or the physical harm of women. It is surprising to see how many discussions revolved around harmful working conditions and harm to maternal health, while the discussion on other, more serious types of harm women suffer, including physical violence, is absent. The only provision that can be classified as a certain type of violence against women, and that prompted one proposal that came closer to the broader issue of violence against women, is the provision dealing with trafficking of women and exploitation of prostitution that later became Article 6 of the CEDAW. Within the context of the discussion of this provision, Belgium proposed the inclusion of ‘attacks on the physical integrity of women’ into the text of the Convention[1] so that the relevant provision would read as follows: ‘Each State Party agrees to take all appropriate measures, including legislation, to combat all forms of traffic in women, exploitation of prostitution of women and attacks on the physical integrity of women.’[2] [3] [4] This proposal was not retained due to insufficient support.35 It is difficult to identify the precise reasons for lack of support for this provision because available documents contain no indication of the expressly stated reasons for lack of support. The only exception is the following statement by the representative of Pakistan: ‘The Belgian amendment addressed itself to a further aspect of the problem, but it was not the only one. Accordingly, it was preferable to keep to the basic text.’36 This explanation is not very clear either. It indicates however, that even this proposal was thought as related to the issue of trafficking and exploitation of women for prostitution, not the broader issue of violence against women. Taking into account the above described general context two conclusions can be drawn. First, since the gravity and severity of different forms of violence against women were widely known also at the official UN level, the lack of support for inclusion of an express provision addressing violence against women cannot be attributed to a careless, inattentive drafting or lack of understanding or knowledge. Secondly, an overview of the official statements on the issue of violence against women indicates that the level of normativity of these statements was very low and clearly beyond the degree of traction required for qualifying these statements as soft law. Therefore, it can be concluded that at the time of the adoption of the CEDAW there was no consensus on the existence of an international obligation to combat violence against women as a human rights issue. The issue of violence against women was present on the official international agenda as a problem to study and understand. At most, it can be suggested that the Convention’s drafters were advising states to devise national strategies to more effectively address the needs of victims of violence against women (and particularly domestic violence) within existing national judicial frameworks.

An additional argument in favour of this interpretation results from the general context of the drafting process. It is well documented that various drafts of the CEDAW contained many controversial provisions. However, these provisions were not excluded in the final Convention, but rather drafted in very vague language. Thus, the issues that were raised but then excluded are those on which no consensus or agreement could be reached even at a very basic level.[5] One could even say that due to the lack of any serious discussion of the proposals for the inclusion of violence against women into the text of the CEDAW, the consensus existed that this is not a human rights issue that governments are willing to address in a hard law international instrument.

The issue of violence against women was addressed during the Second UN Women’s Conference in Copenhagen, held just a year after the adoption of the CEDAW The Report of the Copenhagen Conference adopted in 1980, and its Programme of Action, is the only official document with some normative value dating back prior to the beginning of the work of the CEDAW Committee in 1982 that mentions violence against women as an issue of international relevance.3[6]

The Copenhagen Conference was the second in a series of four UN organized conferences on the status of women.[7] One hundred and forty-five states participated in the conference. The main outcome of the conference is its Programme of Action.[8] [9] [10] [11] As during the first conference, a number of decisions and resolutions on some specific areas considered of importance were adopted.41 The language of the decisions and resolutions is also ‘soft’. For example, Resolution No. 5 on Battered Women and Violence in the Family addressed two of its four recommendations to the Secretary General with a view of studying violence against womenV The remaining two recommendations were addressed to states, urging them to adopt measures aimed at protecting victims of domestic violence within existing national judicial systems.43

Under the rubric of priority areas for action, the Programme of Action called on states to promote research on causes of violence against women.[12] [13] [14] [15] This indicates that while violence against women had become of concern to the UN and states, it had not yet reached even the lowest normative threshold. Otherwise the Programme of Action mentions violence against women as an issue of concern under educational and health-related issues. The strongest language is employed under the rubric ‘legislative measures’:

Legislation should also be enacted and implemented in order to prevent domestic and sexual violence against women. All appropriate measures, including legislative ones, should be taken to allow victims to be fairly treated in all criminal procedures^5

However, this provision is not included in the priority areas identified by the conference in its Programme of Action. Moreover, it is directed at two types of violence against women only: domestic violence and sexual violence. Thus, prior to the beginning of the work of the CEDAW Committee, the issue of violence against women was not absent from the international agenda. However, its normative content was very light, perhaps even below the soft law threshold. Therefore, this can be viewed as additional evidence in favour of the argument that the lack of inclusion of any reference to violence against women in the CEDAW is due to the lack of normative consensus on the issue and even perhaps indicates that the consensus of the time was to regard the issue of violence against women as irrelevant to legal human rights commitments.

Section 3 examines the strategy adopted by the CEDAW Committee that allowed for the inclusion of violence against women as part and parcel of international human rights law.

  • [1] International Instruments Relating to the Status ofWomen. Draft Convention on the Eliminationof Discrimination against Women. Working Paper Prepared by the Secretary General, Corrigendum,14 Sept. 1976, E/CN.6/591/Add. 1/Corr. 1: 2.
  • [2] International Instruments Relating to the Status ofWomen. Draft Convention on the Eliminationof Discrimination against Women. Working Paper Prepared by the Secretary General, Addendum,25 Aug. 1976, E/CN.6/591/Add.1: 4.
  • [3] The discussion and objections are captured in Commission on the Status of Women, 26th session, Summary Records of the 638th meeting, 20 Sept. 1976, E/CN.6/SR.638, paras 40—49. Thereasons for opposition are not stated, except the statement by the representative of Pakistan.
  • [4] 36 Commission on the Status of Women, 26th session, Summary Records of the 638th meeting,20 Sept. 1976, E/CN.6/SR.638, para. 41.
  • [5] Examples of such issues alongside violence against women include the proposed reference to children born out of wedlock in Art. 16 and to inheritance in the same provision. For details see e.g.: Rehof (1993): 181-6.
  • [6] Report of the World Conference of the United Nations Decade for Women: Equality,Development and Peace, Copenhagen, 14-30 July 1980, A/CONF.94/35. The Programme of Actionis the first document in the report, at 2-59.
  • [7] The first conference was held in 1975 in Mexico City. The third and fourth conferences were heldin 1985 in Nairobi and in 1995 in Beijing respectively.
  • [8] Report of the World Conference of the United Nations Decade for Women: Equality,Development and Peace, Copenhagen, 14-30 July 1980, A/CONF.94/35, 2-59.
  • [9] Report of the World Conference of the United Nations Decade for Women: Equality,Development and Peace, Copenhagen, 14-30 July 1980, A/CONF.94/35, 60-112.
  • [10] Report of the World Conference of the United Nations Decade for Women: Equality,Development and Peace, Copenhagen, 14-30 July 1980, A/CONF.94/35, 67-8, recommendations1 and 2.
  • [11] Report of the World Conference of the United Nations Decade for Women: Equality,Development and Peace, Copenhagen, 14-30 July 1980, A/CONF.94/35, 68, recommendations3 and 4.
  • [12] Notably, the document calls upon states to ‘Promote research into the extent and the causes ofdomestic violence with a view to eliminating it; take measures to eliminate glorification of violenceagainst and sexual exploitation of women in the mass media, literature and advertising; provide effective help for women and children who are victims of violence, for example, by the establishment ofcentres for treatment, shelter and counselling victims of violence and sexual assault.’ Report of theWorld Conference of the United Nations Decade for Women: Equality, Development and Peace,Copenhagen, 14—30 July 1980, A/CONF.94/35, para. 163.
  • [13] Report of the World Conference of the United Nations Decade for Women: Equality,Development and Peace, Copenhagen, 14—30 July 1980, A/CONF.94/35, para. 65.
  • [14] 46 Convention on the Elimination of All Forms of Discrimination against Women (New York, 18Dec. 1979, 1249 UNTS 13), Art. 21(1).
  • [15] 47 For a detailed discussion of this reluctance and related issues, see e.g.: E. Evatt, ‘Finding a Voicefor Women’s Rights: The Early Days of CEDAW’, The George Washington International Law Review vol.34 (2002-3): 515-53 at 537-42 in particular.
 
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