Violence against Women: Between Soft and Hard Law?
As already mentioned, there is no single authoritative definition of violence against women. Rather, several very similar definitions exist in four different documents.6®
This creates additional difficulties in terms of identifying the status of the prohibition of violence against women in contemporary human rights law.
There is no doubt that from a positivist perspective, the notion of violence against women did not belong to the realm of hard law in the earlier days of the CEDAW The main argument against classifying the prohibition of violence against women as hard law in contemporary international law is the continuing absence of a convention dealing expressly with this issue at the universal level despite efforts in this direction. Strangely, even positivists have to admit that some specific manifestations of violence against women have become prohibited either through dynamic treaty interpretation or through the formation of custom. However, there is still a lack of agreement at the universal level on the precise contours of violence against women. From the perspective of the relationship between soft law and hard law, the most intriguing aspect is the evolution over time of these elements or particular manifestations of violence against women that, step by step, have become part of recognized hard law. While violence against women, its particular manifestations and precise contours, remains uncertain, its presence and function at the level of international law are undisputed.
What does this strange situation tell us about the nature of the prohibition of violence against women? I suggest that the prohibition of violence against women functions as a passage, as a bridge between discovery and recognition of new forms of suffering and their introduction and integration into hard law. Violence against women as a soft law concept is then not simply an intermediary stage between nonlaw and hard law that disappears by becoming hard law once sufficient consensus is reached. It functions as a mediating mechanism through which a particular element can be integrated into hard law. If we accept this interpretation of the role played by violence against women, it becomes counterproductive to argue for the adoption of a convention expressly dealing with violence against women. The danger is too great that a convention would narrow down the definition of violence against women, thus preventing the passage into hard law of some forms of violence against women. Ultimately, it could even lead to the destruction of the passage of particular forms of violence against women into human rights law. Therefore, the example of the prohibition of violence against women demonstrates how soft law can function beyond the norm-creating/norm-filling dichotomy.
This chapter’s overview of the approach adopted with regard to violence against women at the international level demonstrates the very close dialectical relationship between hard law, soft law, and non-l aw. Instead of approaching them as binary oppositions, the CEDAW Committee approaches the soft law prohibition of violence against women as an intermediary term that functions as a connecting passage allowing easier access to hard law for newly discovered forms of violence against women. In order to keep this passage open, the Committee adopts a careful attitude and when necessary uses either a softer language of technicalities in regards to reporting obligations, or the available explicit provisions of the CEDAW Significantly, the CEDAW Committee constantly reminds European and American states parties to the CEDAW about the existence of the two regional conventions dealing with violence against women. It always asks states that belong to one of these regions but have not yet become parties to the relevant convention about their time-line for ratification of this convention. Thus, the Committee acts as a promoter of these regional treaties. Without the input and constant reminders of the CEDAW Committee, the Istanbul Convention would most certainly still be awaiting the ten ratifications required for its entry into force. The fact that it took three years for a convention dealing with violence against women in Europe to get just ten ratifications demonstrates once again the reluctance of states to address this issue internationally in a hard law instrument.
The example of the CEDAW’s engagement with the issue of violence against women highlights several important aspects of the hard law/soft law dynamic. The two types of law should not be regarded as completely separate from each other. Soft law can function as a mediating force, as a passage facilitating transition of more specific concepts, or elements, into the realm of hard law. This mediating soft law concept should never become entirely absorbed into hard law. Moreover, its absorption into hard law would interrupt the smooth transition of particular elements into hard law, at least until new soft law that plays a mediating role is introduced. The efficient and continuing function of this mediating soft law is dependent upon the careful and skilful approach of the body that is in charge of the concept.