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Download (1MB) A Feminist Theory of State Responsibility for Violence Against Women: Is the Due Diligence Standard an Appropriate Tool for Actualising Primary Prevention? Helen R. Griffiths A thesis submitted for the degree of Doctor of Philosophy Cardiff University 2019 Summary Over the past forty years the transnational women’s movement has worked to conceptualise and institutionalise the understanding of violence against women as a gendered human rights violation . Their efforts have led the response at the international level , and have shaped the (markedly feminist) international human rights law approach to violen ce against women . Despite successes in conceptualising and institutionalising norms concerning the elimination of violence against women, there remain problems in implementin g these norms and holding s tate s accountable. As such, violence against women is still pandemic, affecti ng at least one in three women . An area worthy of additional research and attention is s tate responsibility for prevention – particularly primary prevention, aimed at the ‘upstream’ or ‘root’ causes of violence against women – and t he use of the due diligence standard as a tool for actualising this obligation. The due diligence standard is a significant deve lopment of s tate responsibility, which, within the context of human rights protection, broadens notions of state responsibility to include instances where there is a failure to exercise due care to prevent or respond to violative acts or omissions of private or no n-state actors. In the context of violence against women, this provides a ‘juridical bridge’ for addressing private viol ence, particularly domestic violence, as a human r ights violation, for which the s tate can – and should – be held accountable. The evolution of ‘systemic due diligence ’ – aimed at the broader level of human rights protection – has fur thered this feminist theory of s tate responsibility. The aim of this thesis is to deepen the understanding of violence against women as a gendered human rights violation and to discover how the due diligence standard can be better used as a tool to bring about its elimination ; if, indeed, it is fit for this purpose. i Contents Dedication iv Introduction 1 Chapter 1: Feminism as Method: Consciousness Raising, Positionality 6 and Questioning. Constructing new knowledge 24 Chapter 2: Violence Against Women and International Human Rights 40 Law: The Development of an International Legal Paradigm Rooted in the Radical Feminist Theory of Positionality. The international human rights law response to violence against 43 women Key principles underpinning the development of a radical feminist 55 international human rights law approach to violence against women Summary of radical feminist human rights approach to violence 95 against women Chapter 3: A Feminist Theory of State Responsibility, Part 1: The 97 Conceptualisation of Primary Prevention within International Human Rights Law, and the Problematisation of Theorised Practice therein. The development of a feminist international human rights law 98 approach to primary prevention Case study: Problematising theorised practice and the engagement 14 5 of men and boys in primary prevention Chapter 4: A Feminist Theory of State Responsibility, Part 2: How 18 2 Effectively does the Due Diligence Standard Actualise the Feminist Conceptualisation of State Responsibility for Primary Prevention? The development of due diligence within international human rights 190 law and its applic ation to violence against women Assessment of the legal and sociopolitical significance of the due 24 4 diligence standard with regard the elimination of violence against women Conclusion 27 8 Bibliography 281 Appendices 31 1 iii Dedicated to Alice and Jean, the women who raised me, and to my strong and beloved sisters and nieces . With special thanks to : Professor Rashida Manjoo, Professor Jackie Jones and Dr Claire Malcolm, who gave me invaluable opportunities to liste n, to learn, and to contribute; and who generously shared with me the platforms that they had earnt. Professor Peter Sutch for encouraging, c hallenging, and listening to me throughout this project. Taylor Jone s for teaching me (both within the law and within our communities ) to put in the hard work that justice demands of us. Tom for supporting this project in countless practical ways . And to my parents, for who m I’m always so thankful. iv Introduction The transnational women’s anti -violence movement is now at a mature stage of development. It is nearly 40 years since the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW , 1979 ) was signed into law, and over 25 years since the CEDAW Committee made General Recommendation no. 19 (1992) on violence against women and the world community united behind the Declaration for the Elimination of Violence Against Women (DEVAW , 1993 ). The transnat ional women’s movement has worked across this time to conceptualise the understanding of ‘violence against women ’1 as a specifically gendered human rights violation, and this has led efforts to institutionalise a response at the international level, partic ularly within the field of international human rights law. 1 Throughout my thesis I rely on the definition given in Article 1 of the Declaration for the Elimination of Violence Against Women and Beijing Platform for Action, as framed by the efforts of the transnational women’s movement during the international conf erences. This definition is used by women’s organisations around the world. Violence against women is ‘ any act of gender -based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including thre ats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.’ ( United Nations, Report Of The Fourth World Conference On Women: Beijing Declaration and Platform for Action , paragraph 113 and General Assembl y resolution 48/104, Declaration for the Elimination of Violence Against Women , A/RES/48/104 (20 December 1993), Article 1). In Chapter 2 I will explain more fully the history and development of the term ‘violence against women’ within the international hu man rights law discourse, as well as detailing the significance of its feminist conceptualisation and focusing on the importance of its framing as ‘gender -based violence’ (meaning violence that is gendered and discriminatory). For now it is enough to note the framing and jurisprudential roots of the term within the two primary international legal sources focused on violence against women: the DEVAW and General Recommendations nos. 19 and 35, clarifying the inclusion of violence against women under the Conve ntion on the Elimination of Discrimination against Women . The DEVAW Preamble states that: ‘violence against women is a manifestation of historically unequal power relations between men and women, which have led to domination over and discrimination against women by men and to the prevention of the full advancement of women, and that violence against women is one of the crucial social mechanisms by which women are forced into a subordinate position compared with men.’ (General Assembly resolution 48/104, Dec laration for the Elimination of Violence Against Women , A/RES/48/104 (20 December 1993), Preamble, available from http://undocs.org/A/RES/48/104) The CEDAW Committee supports this definition by describing violence against women as: ‘[v]iolence that is dire cted against a woman because she is a woman, or that affects women disproportionately.’ (Committee on the Elimination of Discrimination against Women, general recommendation No. 19, 11 th session, A/47/38, (1992), paragraph 6, available from http://undocs.o rg /A/47/38) The CEDAW Committee further clarifies the definitions given by the DEVAW and General Recommendation no 19, and outlines the evolved understanding of this framing by offering further definitional clarity of the term: ‘The concept of ‘violence ag ainst women’ in general recommendation No. 19 and other international instruments and documents has emphasised that this violence is gender -based. Accordingly, this document uses the expression ‘gender -based violence against women’, as a more precise term that makes explicit the gendered causes and impacts of the violence. This expression further strengthens the understanding of this violence as a social – rather than an individual – problem, requiring comprehensive responses, beyond specific events, indivi dual perpetrators and victims/survivors.’ (Committee on the Elimination of Discrimination against Women, general recommendation No. 35 on gender -based violence against women, updating general recommendation No. 19, CEDAW/C/GC/35, (2017), paragraph 9.) 1 Despite successes in conceptualising and institutionalising norms concerning the prevention and elimination of violence against women, there remain problems in implementin g these norms and holdin g s tate s accountable to their duties to prevent and eliminate violence against women. As such, violence against women is still pandemic, posing one of the greatest threats to the lives and wellbeing of wome n globally. Affecting at least one in three women, violence against women continues to have devastating impacts on women across all racial, religious and socioeconomic groups, and is worthy of further and greater efforts, involving innovative research and action, to bring about its elimination. An area wo rthy of additional
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