Domestic Violence and International LawPDF电子书下载

1 Domestic Violence as a Violation of International Human Rights Law 1

Introduction 1

Sources of International Law 3

Complexities of Customary International Law 7

The Elements of Customary International Law 7

Traditional Theories of Customary International Law 10

Contemporary Theories of Customary International Law 11

Applying Customary International Law to Domestic Violence 13

Traditional Theories of Customary International Law 13

Contemporary Theories of Customary International Law 14

Is there an Emerging Norm Prohibiting Domestic Violence? 15

Women's Rights in International Law桯istorical Overview 16

Violence against Women in International Law桯istorical Overview 18

Domestic Violence in International Law桯istorical Overview and Status Quo: 1946-2000 24

1946: Commission on the Status of Women 24

1979: CEDAW 26

1979: CEDAW Committee 29

1985: UN Resolution 30

1990: UN Resolution 32

1992: CEDAW Committee General Recommendation 19 34

1994: DEVAW 37

1995: Beijing Platform for Action 39

Domestic Violence in International Law桯istorical Overview and Status Quo: 2000-09 41

2000: The CEDAW Optional Protocol 41

2000: UN General Comment No 28 58

2004: General Assembly Resolution on the Elimination of Domestic Violence against Women 60

1994-2009: Reports of the Special Rapporteur on violence against women, its causes and consequences 62

2005-06: Resolutions and Action by the Office of the High Commissioner for Human Rights 67

2001-08: Resolutions of the Commission on Human Rights and the Human Rights Council 67

2004-09: Further General Assembly Resolutions 69

2006-08: Work of the Secretary-General 74

2000-09: Work of the Treaty Monitoring Bodies 77

The Approach of Regional Human Rights Law and Bodies to Domestic Violence 79

Inter-American System 79

European System 82

African System 89

Specification of Certain Forms of Violence against Women in International Law 91

Mass Rape 92

Female Genital Cutting 95

Trafficking 97

The Writings of Respected Authors and Scholars 98

The Distinction between Public and Private 100

The State's Role 102

Cultural Relativism 103

Discrimination and Violence 105

Conclusion 106

2 Freedom from Systemic Intimate Violence: The Human Right and Corresponding State Obligation 108

The Substance of the Right 108

Exploring the Internationalising Elements of Domestic Violence 109

The Elements of Systemic Intimate Violence 111

Severe Acts of Emotional or Physical Harm 111

Continuum of Harm 118

Between Intimates 122

Group Vulnerability of Women 123

The Failure of the State to Help 134

Moving from an Emerging Norm to a Right in International Law 142

Steps Needed in International Law 142

The First Step: The Enunciation of a Specific Legal Right 144

The Second Step: Political Consequences of Domestic Violence 147

The Third Step: Bringing Domestic Violence into the Remit of Non-Gender-Specific Human Rights Bodies 150

Good Governance Practices: What States Should Do to Protect Against Systemic Intimate Violence 151

Legislative Steps 152

Anti-discrimination Provisions 154

Acts of Violence 156

Continuum of Harm 159

Relationship 160

Criminal v Civil Sanctions 160

Balancing Civil and Criminal Sanctions: The Protection Order 164

Compensation and Damages 169

Evidence and Burden of Proof 170

Labour Laws 170

Murder by Victims 172

Fair Procedure and Rules of Justice 175

Remedies and the Provision of Services 176

Police Protection and Implementation of the Law 176

Statutory Obligation to Protect 180

Training 180

Specialised Units 181

Female Officers 181

Data and Inter-departmental Communication 181

Police Powers 182

Judiciary and Judicial Agents 182

Knowledge of Rights 184

Shelters 186

Emergency and Long-term Health and Economic Well-being 188

Statistics, Indicators and Budget 189

National Action Plans 190

Conclusion 191

3 State Responsibility in Relation to Systemic Intimate Violence 193

Principles of State Responsibility 193

Background 194

Who are the Subjects of International Law? 195

Doctrine of Denial of Justice 200

Is a State Responsible for the Actions of Non-State Actors?4 203

Elements of State Responsibility and their Application to Systemic Intimate Violence 205

Conduct Element 205

Wrongfulness Element 227

Circumstances Precluding Wrongfulness 237

Application of the Justification Principles to Systemic Intimate Violence 241

Competing Values: Privacy 243

Fault and Knowledge 246

Role of the Judiciary 249

Consequences of an Internationally Wrongful Act 250

Conclusion 250

4 The Benefits of International Law for Victims of Systemic Intimate Violence 252

Non-coercive Compliance Theory 252

The Great Debate: Is International Law Effective? 254

Suspicion of International Law in Brief 254

Support of International Law in Brief 255

The Multi-Faceted Process of International Law 256

Norm Infiltration 256

Symbiotic Relationship between National and International Law 257

Deficiency Not Nugatory 258

Proliferation of Actors Facilitating Compliance with International Law 259

Functions of International Human Rights Law in respect of Violence against Women 266

International Law Leading to Change: The Expressive and Implementing Functions 266

How International Law Changed the Legal Response to Mass Rape 269

How International Law Changed the Legal Response to Enforced Disappearances 275

How International Law Changed the Legal Response to FGC 279

How International Law has Already Changed the Legal Response to Asylum and Domestic Violence 284

Non-coercive Compliance Theory in respect of Systemic Intimate Violence 289

Before DEVAW 290

After DEVAW 291

Domestic Violence in Mexico Before and After DEVAW 292

Domestic Violence in Nicaragua Before and After DEVAW 300

Domestic Violence in Sweden Before and After DEVAW 306

General Examples of Improvements in Domestic Violence Laws and Policies 311

Conclusion 316

Index 317