Analysis of the CEDAW Committee’s strategy
The strategy adopted by the CEDAW Committee to affirm the existence of the prohibition of violence against women in human rights law is based on links between different provisions of the CEDAW most importantly the prohibition of discrimination, and consequences of violence against women. This strategy suggests that the prohibition of violence against women is part and parcel of the already existing hard law. This produced some positive results, as the remainder of the chapter will demonstrate. However, the preceding discussion around the position of states towards the issue of violence against women puts it in a new light. Seemingly, the Committee sidestepped the soft law stage in the development of the prohibition of violence against women propelling it immediately into the realm of hard law. As mentioned previously, the outcome of the Copenhagen Conference in 1980 indicated that the prohibition of violence against women did not even attract the degree of traction required for a soft law standard, not to speak of hard law. When adopting General Recommendation 19 in 1992 the Committee also noted that ‘not all the reports of States parties adequately reflected the close connection between discrimination against women, gender-based violence, and violations of human rights and fundamental freedoms’,58 something that states were required to do at least since the adoption of General Recommendation 12 in 1989. Two observations are important in this regard. First, the reluctance of states to comply with the Committee’s 1989 recommendations can be due to their inexperience with reporting, but can also indicate an unwillingness to follow the Committee’s view on the place of prohibition of violence against women in the CEDAW This would mean that, at that stage, the prohibition of violence against women still did not attract enough traction to be considered a soft law rule, or, alternatively, was very close to being accepted as a soft law standard but not yet as a part of hard law. In any case, these developments indicate a very rapid growth in the level of traction attracted by the prohibition of violence against women that can, at least partially, be explained by the dressing up of norm-creation as simply a norm-filling exercise performed by the CEDAW Committee.
Secondly, the intimate connection established by the Committee between the prohibition of violence against women and the existing articles of the Convention, especially the principle of non-discrimination, leads to the problem of only certain types of violence against women being included in the existing norms, leaving other forms of violence against women in the realm of non-law. As stated previously, violence against women is defined very broadly and can take a variety of forms that are not immediately apparent. Some new forms can either arise or become apparent over time. It is not possible to assume that all forms of violence against women will necessarily fit into the framework of the existing human rights obligations. Therefore, in the remaining parts of this chapter, particular care should be applied in order not to be led away from the broad understanding of violence against women by the rhetoric of inclusion of the prohibition of violence against women into existing human rights standards. It is important to keep in mind the fate of those forms of violence against women that do not easily fit into the existing human rights standards.