VP Biden’s Ambitious Agenda for Women

The presumptive U.S. Democratic presidential candidate, former Vice President Joe Biden, has released his “Agenda for Women.”  It’s a tour de force of dozens of key policy priorities, both domestic and international, focused on advancing women’s rights at home and abroad.  Some key takeaways in the national security and human rights space are outlined below along with some areas where additional attention would be welcome:

ERA YesOne Biden’s his core pledges is to advocate for Congress to recognize that the necessary ¾ of the states have ratified the Equal Rights Amendment (the ERA). First introduced in 1923, approved by Congress in 1972, and then sent out to the states for ratification with a deadline of 1979 (later extended to 1982), the ERA received its 38th ratification in January 2020 when Virginia finalized its ratification. Litigation over whether the time limits placed on ratification by Congress are constitutional has been proceeding in several courts (with one suit filed by Equal Means Equal being dismissed  earlier this month for lack of standing). The House passed a resolution that eliminates the putative deadline; so far, there has been no comparable action in the Senate. The Alice Paul Institute—named for the Quaker suffragist who authored the ERA after being instrumental in gaining passage of the 19th Amendment giving women the vote—offers a history of the amendment here. Prof. Julie Suk’s take on why it failed before and how it can succeed is here. Biden co-sponsored the ERA nine times while in Congress. President Donald J. Trump, on the other hand, has opposed the lawsuits, including one  brought by three states attorneys general (Virginia, Nevada, and Illinois) to add the ERA to the U.S. Constitution.

On the multilateral plane, Biden will seek ratification of the Convention on the Elimination of Discrimination Against Women (CEDAW), a treaty dedicated to global women’s rights. Nearly all U.N members have ratified this treaty (in holding out, the United States enjoys the company of Iran, Somalia, and Sudan and a couple of small island nations—see map below). The Senate Foreign Relations Committee has debated the treaty several times, but so far the full Senate has refused to give its advice and consent to ratification, in part due to unfounded fears the treaty will be cited to promote abortions and prostitution and will undermine U.S. sovereignty. Several U.S. cities and municipalities, including San Francisco, have adopted ordinances and policies in keeping with the treaty and the “human rights cities” movement. 1200px-CEDAW_Participation.svg

When it comes to reproductive rights, Biden calls for the repeal of the 1976 Hyde Amendment, which bans U.S. federal funds (mainly Medicaid) from paying for abortions (except in cases in which the pregnancy results from rape or incest or if the woman’s life is endangered by the pregnancy). The Amendment disproportionately impacts low-income women and women of color. This marks a welcome reversal from Biden’s stance at an early Democratic debate during the primary race.  A bill to repeal the Amendment, known as the EACH Woman Act, is working its way through Congress.

Biden would also rescind the so-called “Mexico City Policy” (a.k.a. the global gag rule) that President Trump reinstated but in a more far-reaching form. Withdrawing this ruleGlobal Gag Rule would enable the federal government to support civil society organizations engaged in global health efforts around the world, even if recipients provide information on safe and legal abortion services as part of their public health work. Remarkably, as one of his first moves as President, Trump, flanked by a phalanx of beaming white men, dramatically expanded the policy. Heralding the vindictiveness that has so characterized this administration, this move followed on the heels of hundreds of Women’s Marches that drew millions around the world into the streets (my dispatch is here) and a campaign that repeatedly revealed his deep-seated misogyny. Reversing the global gag rule should be an urgent priority: research has shown that the policy dramatically undermines women’s health and, paradoxically, leads to increased abortion rates in developing countries. Although this move can be accomplished by executive action, the Global Health, Empowerment, and Rights (HER) Act (currently in the Committees on Foreign Relations and Affairs) would prevent future Republican presidents from reinstating it again.

Furthermore, as part of his broader immigration platform, Biden promises to dedicate himself to immigration reform and undo the Trump administration’s harshly punitive policies. This includes: reopening the United States to refugee resettlement (raising the admissions cap to 125,000), re-establishing a humane and expeditious asylum process for people fleeing persecution, and reinstating asylum protections for people who are escaping domestic and sexual violence. The latter requires the reversal of a decision by then-Attorney General Jeff Sessions to invoke a rarely used power and overturn a Board of Immigration Appeals decision that had allowed such survivors to demonstrate persecution on the basis of their membership in a “particular social group”—one basis for receiving refugee status. Biden will also increase the number of visas for survivors of domestic violence under the Violence against Women Act (VAWA) and for victims of crime (so-called U-visas), and expedite the process for granting these and related immigration benefits, including T visas for victims of human trafficking. It will not be enough, however, to simply dismantle these cruel Trump policies; rather, Biden should develop ways to repair the harm done, including through providing psycho-social rehabilitation to children and families traumatically torn asunder and placed in inhumane detention conditions. Biden should also explore the implementation of restitutionary immigration benefits, such as expedited pathways to asylum and family reunification.

In addition to issuing a whole plan devoted to ending violence against women, Biden has endorsed passage of the International Violence Against Women Act (IVAWA), which would make ending the epidemic of violence against women worldwide a key foreign policy priority. The proposed legislation recognizes that

“Rape and sexual assault against women and girls are used to torture, intimidate, and terrorize communities. Rape and sexual assault are used as tools of war in conflict zones, including the Democratic Republic of the Congo, Iraq, Syria, Afghanistan, El Salvador, and South Sudan.”

If enacted, the IVAWA would commit the United States to helping women and girls who are victims of violence to gain access to justice. The timing of this will be crucial; women everywhere are experiencing higher levels of domestic violence while suffering from reduced access to protective services due to the Covid-19 pandemic. These commitments reflect the fact that Biden co-authored the U.S. Violence Against Women Act in 1994 (one of the legislative achievements of which he is most proud) and helped pass the William Wilberforce Trafficking Victims Protection Reauthorization Act, which strengthened the United States’ anti-trafficking framework.  Biden released a statement on the World Day against Trafficking in Persons, July 30th, setting forth his anti-trafficking priorities.

This focus on ending VAW globally is part of Biden’s larger Women, Peace & Security (WPS) plank that will focus on supporting women’s leadership globally. This includes full implementation of the Women, Peace, and Security Act, passed by Congress in 2017, which is premised on research that including women in conflict prevention efforts, peace building processes, and post-conflict governance helps to reduce conflict and instantiate stability. The Act mandates a government-wide strategy to increase the participation of women in peace and security operations and to support transitional justice and accountability mechanisms that reflect the experiences of women and girls. 1_Qz_BwcroQlTViHAMkaJswgThe Act responds to a suite of resolutions emanating from the U.N. Security Council to the same end (starting with Resolution 1325) and builds on the United States’ National Action Plan on WPS, which was released in 2011 and then strengthened in 2016. Both plans call for effective measures to investigate sexual and gender-based violence and to bring those responsible to justice. The Trump Administration has only haltingly implemented the WPS Act, while taking a number of concrete steps in the opposite direction, as demonstrated by Ambassador Don Steinberg, who once led USAID.

Biden’s Agenda for Woman contains a whole slate of economic pledges, underscoring a recognition that economic security is a women’s issue just as much as reproductive rights or the imperative to end gender discrimination. These include support for a number of pieces of draft legislation, including:

Biden has also drawn attention to the need to better support caregivers, particularly in the Covid-19 era. The Agenda announces a whole array of measures in the health, education, and economic sectors for LGBTQI+ individuals (indeed, the list of policies to be reversed vis-à-vis this community is regrettably a long one), as well as disabled, incarcerated, native, immigrant, and veteran women and women of color.

Finally, consistent with an Obama-era Executive Order, Biden has also pledged to ensure his political appointees, and the entire federal workforce, reflect the diversity that is America. Besides his intention to choose a woman Vice President and an African American women for the Supreme Court, he also committed to work for gender parity as he builds his foreign policy and national security teams, a campaign launched by the Leadership Council for Women in National Security (LCWINS) at the start of the election season. The commitment—which other Democratic candidates also adopted—is based not only on legitimate concerns for gender equity but also on consistent research that diverse teams are stronger, more effective, and more creative. This imperative is echoed by organizations such as Women of Color Advancing Peace, Security & Conflict Transformation (WCAPS), the Athena Leadership Project, and Women in Defense (WID).

All this may explain why polls have VP Biden up 25 points over Donald Trump with women as a whole—an historic margin. This is notwithstanding Trump’s pandering to “The Suburban Housewives of America,” perhaps because Biden’s numbers are also higher in suburban polls. To be sure, gender has always been—and likely will be—an issue on the campaign trail, but the disparity between the two candidates could not be more stark.

 

Human Trafficking as a Gendered Phenomenon: CEDAW and a missing jigsaw piece – Part II

In the first part of this blog, we provided a summary of our article “Human Trafficking as A Gendered Phenomenon: CEDAW in Perspective in which we argue that the CEDAW Committee is an important actor whose voice should be heard when discussing States obligations towards the elimination of trafficking and that Article 6 of the Convention needs further clarification/development.

Since publication of our article we have continued to ask ourselves how and why trafficking is divorced from the issue of violence against women within CEDAW’s framework. This posts sets out part of this brief history as a prelude to our article and as part of the history of women’s rights advocacy on these issues. We hope that others can elaborate on the schism between Article 6 and violence against women, and the ongoing lack of a GR on human trafficking.

Gender-Based Violence Against Women

Last year, the CEDAW Committee updated General Recommendation No 19 on violence against women in its General Recommendation No 35 (2017). This GR has garnered much attention for both its content and for its procedure with over 100 women’s groups, NGOs and stakeholders contributing to its promulgation.[1] The Recommendation, which acts as authoritative guidance on the Committee’s interpretation of the Convention’s provisions in relation to violence, acknowledges that despite advances in the field since GR19, gender-based violence against women remains pervasive in all countries of the world and it manifests in a continuum, in a range of settings.[2] The updated substantive statement on gender-based violence against women is a reminder of where we have come and where we still have to go to eradicate violence, and make the right to live a life free from violence a reality.[3]

GR 35 however does not however deal with the issue of human trafficking of women and girls. While trafficking has been mentioned in a number of the Committee’s General Recommendations (GR 26, 28, and 35) the Committee has only done so in passing, instead commenting in its GR on migrant workers that the phenomenon of trafficking could be more comprehensively addressed in its own GR on Article 6. It has remained a mystery to us as to why the Committee has remained interpretatively silent on an important substantive article, leading us to question why Article 6 and violence against women have become separated and whether the Committee has always taken this approach.

An Archaeological Dig

It is well known that the Convention did not include a substantive article on violence against women and that instead GR19 marked an important step in the Committee’s interpretation of the Convention to make explicit the link between violence and discrimination. An analysis of the CEDAW Committee’s session minutes indicates that at the time of drafting GR19, Article 6 (trafficking) formed an integral part of that discussion. GR19 was adopted at the eleventh session, and it was and still is a landmark statement on gender-based violence. It provides an article by article approach setting out how the different articles of the Convention interact and relate to violence against women.

Interestingly, the minutes of the 10th and 11th sessions seem to indicate that originally violence and trafficking were to be considered together in one general recommendation.  The report mentions an anticipated discussion of Article 6 of the Convention and that members were asked to consider the report of the Secretary General on Violence against Women in all its forms, which contained the report of the Expert Group Meeting on Violence against Women, held in Vienna in 1991. We then see that a member (anonymised) expresses concern over the lack of coordination of the CEDAW Committee with the Expert Group and the Commission of the Status of Women. Different experts voiced their consideration at the risk of duplication. One member asked if “it was perhaps necessary to have two separate recommendations: one on violence and one on article 6”.

The report then records that GR19 was adopted as a response to the Expert Group Meeting on Violence against Women and that comments of the Working Group on Article 6, would be picked up at a later session. Ms Bustelo and Ms Aouij volunteered to prepare draft general comments for the next session. At the 12th session, the Working Group recommended that the work should be continued. The minutes of the 12th session thus further indicate that there has been long-standing work on a General Recommendation on Article 6 yet it is unclear from the later minutes what happened and why this GR has not come to fruition. This mystery is underlined further by the Committee’s own statement in the GR on migrant women that there should be a separate recommendation in relation to Article 6 and trafficking.

Conclusion

The work of the Committee continues today and is phenomenally important to women’s rights advocates. The Committee’s work on gender-based violence against women as a form of discrimination together with its specialised status in interpreting human rights norms and obligations in relation to women has been significant and influential. In the context where regional and international courts and tribunals have yet to grasp how trafficking is a gendered phenomenon CEDAW’s interpretative expertise is welcome, and in our view, long overview. Understandably, the Committee has many competing issues to deal with, and we recognise that Article 6 presents particular theoretical and political challenges.  However, the seriousness and pervasiveness of the violations of women and girls’ rights who suffer from human trafficking and exploitation in prostitution demands the Committee’s specialised and expert action. The enactment of GR35 forms another historical moment for the Committee, and for us another reminder that more has to be done to tackle trafficking against women and girls.

[1] ‘The CEDAW Committee’s General Recommendation 35. A renewed vision for a world free of gender-based violence against women’, available at http://ehrac.org.uk/wp-content/uploads/2018/01/EHRAC-Winter-2017-WEB.pdf.

[2] ‘CEDAW General Recommendation 35 draws an explicit link between gender, discrimination and conflict-related violence against women’, available at http://blogs.lse.ac.uk/wps/2017/09/12/cedaw-general-recommendation-35-draws-an-explicit-link-between-gender-discrimination-and-conflict-related-violence-against-women/

[3] ‘CEDAW General Recommendation 35 on violence against women is a significant step forward’, available at http://blogs.lse.ac.uk/wps/2017/09/06/cedaw-general-recommendation-35-on-violence-against-women-is-a-significant-step-forward/

Human Trafficking as a Gendered Phenomenon – Part I

This is part 1 of a two-part post on human trafficking as a gendered phenomenon. In this first part we provide a brief contextualisation to the issue and introduce our recently published article examining the relationship between the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and human trafficking. In the second post, we take a historical look at how the issue of trafficking became divorced from the Committee’s work on violence against women.

Trafficking in human beings is a gendered phenomenon.[1] An estimated 79% of all detected trafficking victims are women and children and traffickers are ‘overwhelmingly male’.[2] As the former Special Rapporteur on Violence against Women, its Causes and Consequences (Special Rapporteur on VAWG) commented in her 15 year review of the mandate, human trafficking is one of the major areas of concern with regards to violence against women (alongside domestic violence, sexual violence in conflict and reproductive rights violations).[3]  The Special Rapporteur on VAWG commented that there has been a marked shift on policy in this area from a ‘prostitution framework’ to a framework which places human rights at the centre of the debate. The Declaration on Violence against Women (DEVAW) confirms this view and recognizes human trafficking as a form of violence against women (Article 2(b)). Further, violence against women has now been recognized as a form of discrimination against women.[4] It is therefore clear that human trafficking is a form of violence and discrimination against women.

More recently, trafficking has been recognised as one of the main forms of violence that women face in the context of migration.[5] Trafficked women and girls often face different forms of gender-based violence such as sexual violence, rape, violation of their reproductive rights, and slavery both in destination and during their trip. Trafficking may constitute torture, crimes against humanity, and war crimes, and it has been identified as a threat to international peace and security by the Security Council (S/RES/2331 (2016)). States of origin, transit, and destination have obligations to prevent trafficking, protect victims (within their territory and from refoulement to a country where there is a risk of torture or cruel, inhuman or degrading treatment or punishment, including the risk of re-trafficking), and to prosecute traffickers. For States to comply with these obligations, victims must be properly identified and identification proceedings must be put in place at strategic points on migration routes and access to asylum proceedings must be granted.

In practice, much remains to be done to implement a human rights and a gender approach to trafficking that can provide justice to those who have suffered violations of their rights due to human trafficking for sexual exploitation, forced labour and other forms of exploitation, slavery and servitude. Most States aim to combat human trafficking from a migrant model a criminal justice perspective and more recently a security approach, thus neglecting the rights of trafficking victims.

In our article “Human Trafficking as A Gendered Phenomenon: CEDAW in Perspective”, we argue that CEDAW is an important human rights instrument in the fight against trafficking in human beings. By way of brief introduction, the Convention is an international human rights treaty dedicated to women and girls. It has been described as ‘the definitive international legal instrument requiring respect for and observance of the human rights of women.[6] At the core of the Women’s Convention is the eradication of discrimination against women and States parties to the Convention accept wide-ranging obligations to promote equality in all spheres of life.[7]

Trafficking is expressly prohibited under CEDAW in Article 6, which mandates states to take all appropriate measures to supress trafficking and the exploitation of prostitution. We argued that given the disproportionate number of women and girls who are trafficked for the purposes of sexual exploitation and forced labour, the Convention is a valuable instrument, contextualising trafficking in the context of structural inequality, violence and discrimination. Further, the Committee’s General Recommendation No.30 and General Recommendation No. 35 point to some of the underlying factos which make women vulnerable to being trafficked including conflict, extractive industries, global supply chains and natural disasters. Significantly no State party has entered a reservation to Article 6.

However, Article 6 does not define the terms trafficking and exploitation of prostitution and the scope and contours of the obligation remain uncertain. Through an analysis of the Committee’s jurisprudence, we found that the Committee has yet to find a violation of Article 6 of the Convention finding all cases pleading Article 6 inadmissible. Further, the Committee has yet to draft a specific general recommendation on Article 6 which seems to be a glaring omission. CEDAW should make good its promise and provide substantive guidance on the scope of Article 6 of the Convention and States obligations to suppress and tackle trafficking. We argue that this is especially necessary given the lack of gender and structural analysis of trafficking by other regional and international courts and bodies and the brevity with which trafficking is dealt with in General Recommendation No 35 on violence against women.

[1] The Inter-Agency Coordination Group against Trafficking in Persons. ‘The gender dimensions of human trafficking’, Issue Brief #4, 2017.

[2] The UNODC Global Report on Trafficking in Persons 2016 notes that an increasing number of men have been detected as trafficking victims, United Nations Publication. Available at www.unodc.org/documents/data-and-analysis/glotip/2016_Global_Report_on_Trafficking_in_Persons.pdf

[3] 15 years of The United Nations Special Rapporteur on Violence against Women, its Causes and Consequences, available at www.ohchr.org/Documents/Issues/Women/15YearReviewofVAWMandate.pdf

[4] General Recommendation No. 35 (CEDAW) see paragraph 1 and 7. Opuz v Turkey (2010) 50 EHRR 28.

[5] Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment on Migration-Related Torture and Ill-Treatment, February 2018, A/HRC/37/50, available at www.ohchr.org/Documents/Issues/Torture/A_HRC_37_50_EN.pdf

[6] Rebecca Cook ‘Reservations to the Convention on the Elimination of all Forms of Discrimination against Women’ 30 Virginia J Intl’l Law (1990) 643, at 643.

[7] Andrew Byrnes and Marsha A. Freeman ‘The Impact of the CEDAW Convention: Paths to Equality A Study for the World Bank’ University of New South Wales Faculty of Law Research Series 2012, paper 7.

Article 8 of the Convention to Eliminate All Forms of Discrimination against Women (CEDAW): A Stepping Stone in Ensuring Gender Parity in International Organs and Tribunals

Article 8 of CEDAW requires state parties to the treaty to “take all appropriate measures to ensure to women, on equal terms with men and without any discrimination, the opportunity to represent their Governments at the international level and to participate in the work of international organizations.” Given the plain text of the provision and its subsequent interpretation by the Convention’s enforcement body, the CEDAW Committee, it is clear that state parties have a duty to ensure gender equality in the access to positions in international tribunals and bodies that play key roles in developing international law and human rights. As of today, 189 states have ratified CEDAW, thereby making the obligations arising out of Article 8 an almost universal requirement. The goal of GQUAL is to work with states, international bodies, and civil society organizations towards the effective implementation of this duty.

The obligation to ensure equal opportunity “to participate in the work of international organizations” under Article 8 is two-fold. At the international level, states must exert influence when the rules regulating processes of appointment to international positions are adopted to guarantee that they conform to the gender equality requirements of that provision (Sarah Wittkop, Article 8, in the UN Convention on the Elimination of All Forms of Discrimination Against Women, A Commentary,at 224). At the domestic level, states must establish transparent selection processes to ensure that women benefit on an equal basis from the opportunity to work at the international level, particularly when such opportunity requires states to nominate candidates to be appointed to those positions (Id.). Even though the obligation to ensure gender equality at the international level is of a positive nature, at the domestic level states have an immediate duty to set up the necessary conditions to guarantee women de facto equality to access those opportunities. On the other hand, the duty to achieve in practice gender equality is considered to be of gradual implementation.

When Article 8 speaks of “international organizations,” it is understood that this notion encompasses not only international bodies such as the United Nations, but also regional organizations, including the Organization of American States, the Council of Europe, and the African Union to mention a few (Id.). Moreover, all organs within those organizations are covered by this obligation, including “courts, subsidiary bodies, funds and programmes, specialized agencies, and treaty bodies.”(Id.) Consequently, states have a duty to ensure gender equality in access to positions at both levels and to all international organs.

Additionally, Article 8 requires that state parties to the Convention “take all appropriate measures” to ensure gender equality in their representations to international organizations. According to the CEDAW Committee, the appropriate measures include the creation of objective criteria and processes for the appointment and promotion of women to relevant positions (CEDAW, General Recommendation No. 23 (1997) paras. 38, 50) and the adoption of temporary special measures aimed at accelerating substantive equality for women,(Id., para. 43) as provided by Article 4 of the Convention. The Committee has read this article to require state parties to adopt temporary measures such as special educational opportunities, recruitment policies, and quotas in order to expedite gender de facto equality in areas where women are chronically underrepresented (CEDAW, General Recommendation No. 25 (2004) para. 22). Such temporary special measures are necessary to bypass entrenched cultural and structural issues that make it impossible for women to compete on an even playing field with men (Id., para. 14).

The CEDAW Committee’s interpretation of the Convention through its Concluding Observations on state parties and its General Recommendations is vital to understand the practical implications and obligations of the Convention. Even if Article 8 has not been extensively interpreted, the CEDAW Committee has repeatedly obligated states to take whatever measures necessary to ensure de facto gender equality in international representation. Specifically, the Committee has repeatedly recommended that state parties establish temporary statutory quota systems to achieve substantive equality in both the diplomatic service and states’ representations to international organizations. (Concluding Observations, the Netherlands, 2010, para. 33). Finally, given the precise nature of the obligation to take all appropriate measures, this duty is of immediate application and may be subject to enforcement at the domestic and international jurisdiction (Sarah Wittkop, Article 8, supra, at 231).

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Inheritance Law Reform in Morocco: At the Intersection of Human Rights and Religious Identity

Last week, the president of Morocco’s National Human Rights Council (CNDH), Driss El Yazami, publicly released the Council’s most recent report on gender equality and parity in Morocco. The content and recommendations contained therein were broad, addressing a range of issues related to laws affecting women. However, one issue, in particular, received significant attention and has been the subject of heated debate here in the country: inheritance law.

The report comes four years after the adoption of a new, Arab Spring-inspired constitution and ten years after a controversial yet much celebrated reform of the Moroccan Family Code (al-mudawwana). While the CNDH has issued previous reports and memoranda on gender, the CNDH noted that the report was “the first of its kind” to review the efforts and achievements to promote and protect the rights of women in Morocco, but also to present the challenges, gaps, and obstacles that continue to prevent women from enjoying all of their human rights. The report is comprised of three chapters, addressing (1) gender equality and non-discrimination, (2) equality and parity in economic, social, and cultural rights, and (3) public policies and their impacts on women that are most vulnerable to human rights violations, and it offers 97 recommendations intended to ensure the full participation of women in society and their equal access to services and resources. From a human rights perspective, it is impressive.

In a press statement after the conference, El Yazami said, “There will be no democratic progress or fair and sustainable development in Morocco without the empowerment and full participation of women, who make up one-half of Moroccan society.”

The report provided many opportunities for controversy, but its recommendations relating to inheritance generated the most coverage in the Arabic- and French-language press. The report commented on current legislation around inheritance, which stipulates that male heirs receive double that of female heirs, among other such provisions. It then recommended an amendment to the Family Code giving women the same rights as men in the context of inheritance. In supporting its recommendation, the CNDH referred to both national and international law, citing Article 19 of the 2011 constitution and Article 9 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), of which Morocco is a party.

The most trenchant response has come from the Justice and Development Party (PJD), the ruling political party in Morocco since 2011. While they are often referred to as “Islamist,” the party describes itself as a political party with an Islamic frame of reference, an important distinction, I have learned, here in Morocco.

The party has referred to the report as an “unacceptable provocation,” criticizing its perceived overreach into the religious domain. Its principal objection has been that the recommendation to amend the inheritance laws contravenes explicit textual directives in the Qur’an, which the party says are not open to interpretation. Thus, they contend, the recommendation lacks legitimacy and legality in Morocco.

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Child Marriage in India: Loopholes in the Law

By sheer numbers, child marriage in India dwarfs the rest of the world; India has the highest number of child brides of any country.  Although the rate of child marriage is decreasing for children under the age of 15, the rate of marriage for girls aged 15-18 has increased from 26.7% in 1998-99 to 29.2% in 2005-06.  Child marriage is clearly not ending despite laws in place, and is perpetuated in India due to a range of factors, most prominently dowry, poverty and lack of educational opportunity for girls, concerns about the safety and honor of girls, and prevalent gender and social norms.

Child marriage violates international human rights laws and standards, including Article 16(2) of the Universal Declaration of Human Rights, which requires the “free and full consent” of spouses to marriage. It also violates Article 16 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which requires women and girls to have the “right freely to choose a spouse” and to “enter into marriage only with their free and full consent.” CEDAW also states that the “betrothal and the marriage of a child shall have no legal effect.” India is also signatory to the Convention on the Rights of the Child (CRC), and child marriage violates a range of CRC provisions, including the right of children not to be separated from their parents against their will and the right of children to freely express their views on matters that affect them. Further, under the CRC, the state is obligated to take measures to abolish traditional practices prejudicial to the health of children, including marriage.

The social forces at play perpetuating child marriage are difficult to combat, deep-seated and intertwined as they are. But perhaps what is lesser known is that laws in India prohibiting child marriage are flawed, contributing to the problem.

First, the Prohibition of Child Marriage Act, 2006 repealed the Child Marriage Restraint Act, 1929 and attempted to address the previous Act’s shortcomings. This Act defined child marriage as the marriage of boys under age 21 and girls under 18. The Act also made positive changes, including extending the maximum length of punishment to two years of imprisonment and/or a fine of up to one lakh rupees. If the marriage is nullified, the Act requires the return of money, valuables, gifts, and ornaments given by each party to the other, and also allows an order of maintenance for the former wife.  The Act also provides for government-appointed Child Marriage Prohibition Officers to work to prevent child marriages; while good in theory, it is unclear whether they are actually in operation and to what extent.

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Violence against women: a new binding standard for 2015

The Council of Europe Convention on preventing and combating violence against women and domestic violence (the Istanbul Convention) entered into force on 1 August 2014. As we begin 2015, when the members of the treaty body (GREVIO) will be elected and the process of reviewing states’ conformity with this very detailed and practical convention will begin, it is a good moment to reflect on the possibilities which come with this new binding standard.

While this is a treaty negotiated and adopted within the Council of Europe, its values and antecedents are truly global. The general recommendations, concluding observations and jurisprudence of the Committee on the Elimination of All Forms of Discrimination, General Assembly Resolutions on violence against women and criminal responses to violence against women, regional treaties on women’s rights from the Americas and Africa were all influential on the content, as was the UN Secretary-General’s in-depth report on violence against women of 2006 and twenty years of insights from three successive Special Rapporteurs on violence against women, its causes and consequences. The treaty was negotiated by state representatives, some of whom were past and present members of CEDAW. Others were experienced members of feminist civil society, with in-depth practical knowledge of the demands of service provision to women escaping gender-based violence.

Christine Chinkin and Renee Romkens acted as advisers to the negotiation, with great distinction. Christine brought a deep knowledge of international human rights law, international humanitarian law and international criminal law. Renee brought a deep knowledge of the sociological research base on inequality and gender-based violence. Civil society were observers – with limited opportunities to engage with the debates – including the European Women’s Lobby, the ILGA-Europe (the European Region of the International Lesbian, Gay, Bisexual, Trans and Intersex Association), WAVE (Women against Violence Europe) and Amnesty International – the organization I represented during the negotiations.

The Istanbul Convention deals with violence against women, including domestic violence, within a legal and policy framework of promoting women’s equality, according to CEDAW Article 1 and the transformative commitment of the entire treaty. Among its purposes is to contribute to “the elimination of all forms of discrimination against women and promote substantive equality between women and men, including by empowering women.” (Article 1b). Its 65 substantive articles are based in a practical response to what we know about the practice of violence against women, and how to eradicate it.

The treaty provides for three engines of change to take action on this knowledge basis. At the national level, there is a requirement in Article 10 to establish a coordinating institution, “responsible for the coordination,  implementation,  monitoring  and  evaluation  of policies and  measures  to  prevent and combat all forms of violence covered by this Convention” which will enforce joined-up thinking and action within each member state. It is also responsible for coordinating the collection of data on violence against women, analysing and disseminate the results of the data. States are required to cooperate positively with civil society organizations (Article 9) and provide “appropriate financial and human resources for the adequate implementation of integrated policies, measures and programmes” (Article 8).

At the international level, there will be a monitoring process by a panel of experts to whom states must provide a report on the implementation of the Convention. The GREVIO is empowered to govern its own procedures (article 68(4)), receive information from civil society (Article 68(5)) and international organizations (Article 68(8)) and make recommendations to states on how to improve their implementation of the Convention. Exceptionally, the GREVIO has powers to undertake urgent reports in order to prevent “serious, massive, or persistent” violations of the Convention (Article 68(13)), even with the power to undertake visits to countries (Article 68(14)).

The third, and most novel, engine for change is to require states parties to invite their parliaments to participate in the monitoring of the implementation of the convention (Article 70), which is apt and resonant given the huge numbers of women affected by gender-based violence. Addressing violence against women is a matter for democratic scrutiny as well as implementation of the rule of law.

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20 Years of VAWA

Twenty years ago, on September 13, 1994, President Clinton signed into law a bill that included the Violence Against Women Act (VAWA). The Act afforded greater protections to victims, brought the issue out of the private sphere and into the public domain, and resulted in a 64% drop in the intimate partner violence rate. Yet, recent news reports have once again thrust the issue front and center here in the United States, where domestic violence accounts for 0ver 20% of all violent crime.

The occasion of the twentieth anniversary of this vital legislation provides an opportune time to consider these sobering global statistics:

Legislation like VAWA is a powerful tool for combating violence against women domestically, and organizations working to prevent this violence and address root causes also effect change. International treaties including the Council of Europe’s Convention on Preventing and Comabating Violence Against Women, which entered into force just last month on August 1, the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence Against Women, and numerous other documents together evidence the depth and breadth of the global support regarding the right for women and girls to live without violence. Change happens slowly, but with all these instruments at our disposal, we have reason to believe it will happen.

Towards an International Convention against Violence against Women

Violence against women is a widespread phenomenon highlighted in various reports of the United Nations Special Rapporteur on Violence against Women, Its Causes and Consequences. Yet, no single treaty seems to cover this specific type of human rights violation and the protection offered to women in other treaties can be qualified, at best, as patchy if not deficient. The gaps in the normative system preventing violence against women, protecting women from such violence and ensuring them access to effective remedies were underlined at a panel convened in London by the Department of Law of the University of the West of England (United Kingdom) on 5 November 2013. The general consensus was that a universal, comprehensive treaty aiming at preventing and eradicating violence against women was needed.

Ms Rashida Manjoo, UN Special Rapporteur on Violence against Women, explained that there is no specifically legally binding instrument on the international plane. The European and African States have however risen to the challenge of eradicating violence against women by respectively adopting the Convention on preventing and combating violence against women and domestic violence (Istanbul Convention) and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa. This lack of international convention means that the principles of non-discrimination and equality are the norms used to address violence against women. The 1993 Declaration on the Elimination of Violence against Women was unfortunately of little avail as it is a non-binding declaration and has not yet crystallised into customary international law.  With regard to the enforcement of women’s right to be free from violence the principle of due diligence, albeit enshrined in international law, is poorly understood by States in this specific context as her call for information and subsequent report on the interpretation and implementation of the due diligence principle reveal. The 1993 Declaration on the Elimination of Violence against Women and General Comments 12 and 19 of the CEDAW Committee can to some extent offer guidance although it is doubtful that the former has reached customary nature. Is it possible to turn the Declaration into a convention? Ms Manjoo expressed her concerns that a number of States were reluctant to do so on the basis that it would lead to a proliferation of human rights treaties, that its monitoring mechanism would be costly, that it might lead to reforming CEDAW, etc. Ms Manjoo added that the mainstreaming of gender and the discourse on gender neutrality have led to substantive equality falling behind. Continue reading

CEDAW’s Contribution to the Development of Rights Norms

In 2014 the European Journal of International Law will publish an article of mine that raise issues I thought might be of particular interest to readers of this blog. The article in question, ‘Women’s Rights and the Periphery’, explores in some detail the case law of the Women’s Committee under CEDAW’s Optional Protocol.  It raises in particular the question of how far, if at all, the Committee has been able to develop ‘women’s rights’ in recent years into a body of law that departs from the normative and structural limitations of international human rights laws.  In large part, the article is an attempt to participate in the project of ensuring that the jurisprudence of the Women’s Committee is given the serious attention that it merits.

It is widely known that, unlike most other UN human rights treaty-monitoring bodies, the Women’s Committee was not initially empowered to receive individual complaints.  Support for an optional protocol to CEDAW was voiced at the 1995 Beijing Conference, with a request that any draft should include a right for individuals to petition the Women’s Committee. The Optional Protocol was finally adopted by the General Assembly on 6 October 1999 and entered into force on 22 December 2000.  This development, I suggest, was not just to be celebrated because it brought CEDAW into line with other treaties, but because it presented a unique opportunity for women’s voices to participate in the development of international human rights norms.

My article, however, is driven by a sense of surprise and frustration that the jurisprudence of the Women’s Committee seems to have received little attention from mainstream international scholars.  This is in spite of the Committee’s unique characteristic as a space within international law that is headed by women decision-makers, whose remit is specifically gendered and whose task is to uphold the rights of women.  Feminist scholars of International Law have long argued that women’s voices are silenced within the mainstream of our discipline, leaving them unable to participate in the development of its normative principles; the resounding silence that has met the case-law of the Women’s Committee so far appears to be another worrying example of this phenomena.

What attention has been paid to the Committee’s work has been rather muted in its assessment.  The Women’s Committee has been criticised by some for being stuck in the mainstream of international law, doomed to merely reaffirm, mantra-like, international law’s dominant ideologies.  Still others argue that CEDAW is so peripheral and isolated from the mainstream that it cannot hope to engage with, let alone challenge, the inequality and discrimination that underpin our discipline.  I take a rather more optimistic view of the Committee’s rather uneven early jurisprudence, arguing that it might suggest that the Committee is uniquely positioned to make a contribution to the transformation of human rights norms precisely because it navigates between positions both at the centre and at the periphery of international law.  The challenge for CEDAW is to consciously embrace the transformative potential inherent in its ambiguous positioning.

The article can currently be downloaded in full here in its pre-proof form.