Bringing Violence against Women into the CEDAW
The CEDAW Committee was at first very reluctant to assume an active role. Despite a clear provision allowing it to ‘make suggestions and general recommendations’,46 it was slow to issue general recommendations that went beyond simple comments on states’ reports or reporting obligations, despite the existence of this practice in the work of the Human Rights CommitteeV The Human Rights Committee adopted five general comments in 1981 and four general comments in 1982, the year when the CEDAW Committee started its work.
The CEDAW Committee addressed the issue of violence against women in two general recommendations: General Recommendation 12 adopted in 1989 and General Recommendation 19 adopted in 1992.
Remarkably, General Recommendation 12 is the first substantive recommendation adopted by the Committee. All previous recommendations dealt with technical issues related to the states’ reporting obligations such as provision of statistical data and other relevant information, and the structure and content of reports. In the second introductory paragraph, General Recommendation 12 makes reference to a resolution of the Economic and Social Council of the UN (ECOSOC) from which it apparently derives its legitimacy. The ECOSOC resolution entitled ‘Efforts to eradicate violence against women within the family and society’ was adopted in 19 8 8. It addresses the issue of violence against women as a crime prevention issue and calls for more research and better understanding of the phenomenon. The resolution is remarkable in one particular regard: the language of the introductory paragraphs expressly links its subject matter to existing states’ human rights obligations. In doing so, it mentions the Covenant on Economic Social and Cultural Rights, Nairobi Forward-looking Strategies for the Advancement of Women, General Assembly resolution on domestic violence, a report of the Secretary-General on efforts to eradicate violence against women, and some other events and documents, but is silent on the existence and relevance of the CEDAW, despite the fact that the CEDAW is already in force and its Committee active. Thus, the CEDAW Committee in adopting its first general recommendation on violence against women performs an important creative move: it reminds the international community and international institutions about its own existence and relevance while simultaneously deriving legitimacy and ‘a right to speak’ from these international institutions. The language and terms of the ECOSOC resolution can be regarded as a further indication of the almost non-existent level of recognition by states of violence against women within the CEDAW prior to the beginning of the CEDAW Committee’s work on the issue.
In the General Recommendation, the Committee addressed four recommendations to states linked to their reporting obligations. The recommendations were aimed at providing the Committee with more information on particular aspects of states’ efforts to combat violence against women. This included: legislation that was in force; other measures adopted to eradicate violence; existence of support services for victims of violence; and relevant statistical data. This was the main content of the General Recommendation in line with the Committee’s previous practice of addressing mainly states’ reporting obligations in its general comments. However, the first sentence of the recommendation that appears as a simple introductory statement is crucial and marks a turn in the CEDAW Committee’s attitude. It reads as follows: ‘Considering that articles 2, 5, 11, 12, and 16 of the Convention require the States parties to act to protect women against violence of any kind occurring within the family, at the work place or in any other area of social life.’ Structurally, this sentence is just an introduction to the recommendations that the Committee addresses to states. However, with this sentence, the Committee makes an unambiguous determination that inscribes the requirement of combating all forms of violence against women into other provisions of the CEDAW in an attempt to make it part and parcel of hard law. This is quite a big move forward, if we consider the background of the adoption of the CEDAW, and especially the fact that even a reference to attacks on the physical integrity of women   did not get enough support. Thus, from the very beginning of its activities, the CEDAW Committee simply assumed, or pretended, that violence against women was a matter within its competence and that it was also covered by various provisions of the CEDAW, creating obligations for states parties. The attitude of the CEDAW Committee is that it is performing a norm-filling function by articulating soft law standards on violence against women. However, against the background of the historical development sketched above, the Committee’s actions can be regarded as norm-creating. From now on states have to address certain issues that they were unwilling to include in the text of the CEDAW during the drafting process.
-  General Recommendation 19: Violence against Women, 11th Session, 1992, Contained inCompilation of General Comments and General Recommendations Adopted by Human Rights TreatyBodies, HRI/GEN/ 1/Rev.9, vol. 2 (27 May 2008).
-  ECOSOC, Efforts to Eradicate Violence against Women within the Family and Society, 1 July 1988, E/RES/1988/27.
-  General Recommendation 12.
-  The proposal did not specify the type of attacks or the area of their application (e.g.: domesticsphere). The proposal aimed at including something similar to the right to liberty and security of theperson in the CEDAW.
-  52 General Recommendation 14: Female Circumcision, 9th Session, 1990, Contained inCompilation of General Comments: 326.
-  General Recommendation 19, para. 11.