The Leap from Theory to Practice: Snapshot of Women's Rights Through a Legal Lens

• Author: Brooke Stedman
• Position: International Tribunal for the Former Yugoslavia, Legal Associate (pro bono); University of Utrecht, LL.M Candidate International Human Rights and Criminal Law (2013); Marquette University, B.A. Criminal Law (2007)
• Pages: 4-28

e Leap from eory to Practice:

Snapshot of Women’s Rights rough a Legal Lens

Brooke Stedman

Merkourios 2013 – Volume 29/Issue 77, Article, pp. 04-28.

URN:NBN:NL:UI:10-1-112870

ISSN: 0927-460X

URL: www.merkourios.org

Publisher: Igitur Publishing

Copyright: this work has been licensed by the Creative Commons Attribution License (3.0)

Keywords

Violence against Women, Women’s Rights, Due Diligence, Inter-American Court of Human Rights, European Court of

Human Rights

Abstract

Globally, at least one in three women will be beaten, coerced into sex or otherwise abused by an intimate partner over the

course of her lifetime. It can be argued that the perpetuation of violence against women is a result of the failure to provide

equality under international law and to protect universal human rights. Over the last three decades, the international com-

munity has utilised human rights instruments and international bodies of law to advance the conceptualisation of women’s

rights as human rights. However, the continued prevalence of violence against women points to evidence of gender-based

discrimination and lack of gender equality within the legal realm.

is paper will highlight how the evolving jurisprudence of the Inter-American Court of Human Rights and the European

Court of Human Rights has helped shape gender norms and reinforce positive State obligations to prevent and protect

women against violence. Moreover, these shifts in the theoretical rights of women will be analysed to see whether they are

translated into practice within domestic jurisdictions.

Author Aliations

International Tribunal for the Former Yugoslavia, Legal Associate (pro bono); University of Utrecht, LL.M Candidate

International Human Rights and Criminal Law (2013); Marquette University, B.A. Criminal Law (2007). e author would

like to thank the Merkourios Editorial Board and the referee reviewer for the helpful comments on an earlier version of this

article. e author would also like to thank Margaux Raynaud for her support and insight into the issues at the crux of this

article.

Article

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Merkourios - Gender in European and International Law - Vol. 29/77

Case Note

Article

I. Introduction

Globally, at least one in three women will be beaten, coerced into sex or otherwise abused by an intimate partner over the

course of her lifetime.1 In his campaign to end violence against women United Nations Secretary-General, Ban Ki-Moon,

stated: “Violence against women and girls continues unabated in every continent, country and culture. Most societies prohibit such

violence – yet the reality is that too often, it is covered up or tacitly condoned”.2 Violence and discrimination against women

continue to exist in a multitude of forms and on a global scale, depriving half the world’s population of their social, economic,

and political rights. It can be argued that this perpetuation of violence against women is a result of the failure to provide

equality under international law and to protect universal human rights.

Over the last three decades, the international community has utilised human rights instruments and international bodies

of law to advance the conceptualisation of women’s rights as human rights. Pursuant to the Universal Declaration of Human

Rights, the notion of women’s human rights are based on the principle of universal, inalienable, and indivisible rights which

are granted to individuals by virtue of their humanity.3 While the conceptualisation of women’s rights as human rights is a

fundamental benchmark for ensuring equal rights based on gender, it should be noted that the term “women’s rights” extends

beyond the basic parameters provided for under a human rights framework. e fullment of women’s rights requires a

framework supplementary to that of universal human rights, one which addresses discrimination and inequality, violations

of rights, and specic needs and challenges based on gender.4 With this conceptualisation of women’s rights being equal to

and extending beyond the basic human rights framework, a shift has occurred in State obligations, moving from negative

obligations to positive obligations which require the State to respect, protect, and full the full realisation of women’s rights.

In fullling these positive obligations, the State is required to take measured steps to address the challenges faced by women

in the realisation of their rights, such as outreach programs which provide services to victims of domestic violence and provide

information on legal options moving forward.

However, the continued prevalence of violence5 against women points to evidence of gender-based discrimination and lack

of gender equality within the legal realm.6 is gender-based discrimination within the legal realm is be evidenced by gaps in

the protection of women’s rights.7 First, the women’s rights often fall victim to the public/private dichotomy and are pushed

from the public sphere into matters which are considered “private”, and therefore not within the jurisdiction and scope of

State responsibility to protect.8 For example, in some States domestic violence against women is seen as a “private” issue, as

it involves familial matters and is thus outside the State’s jurisdiction, leading States to remain inactive in protecting women

from violence. Moreover, the violation of women’s rights is often relegated to a “secondary” crime, overshadowed by matters

considered of greater importance, such as global and State security and stability.9 Lastly, numerous situations exist where

discriminatory practices against women, such as female genital mutilation and “honour” killings, are perpetuated under the

guise of cultural norms.10

1 UN Secretary-General’s Campaign “UNiTE TO END VIOLENCE AGAINST WOMEN,” ‘Framework for Action: Programme of United nations Activities and

Expected Outcomes 2008-2015’ (2008) 2 (UNSG Campaign Unite to End Violence Against Women).

2 Ibid.

3 Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A(III) (UDHR). e Preamble of the UDHR states, ‘the peoples of the

United Nations have in the Charter rearmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of

men and women’. Article 1 of the UDHR rearms the concept of equal dignity and rights as a corollary to being human, and Article 2 specically stipulates that

all rights provided for within the UDHR shall be fullled and protected “without distinction of any kind such as race, color, sex, language... or other status”.

4 Specic needs and challenges based on gender include, but are not limited to issues related to access to justice, education, and adequate general and reproductive

healthcare. Discriminatory practices against women which are widely accepted as human rights violations and in need of special attention include, but are not

limited to, issues relating to lack of economic empowerment, political participation, and participation in peace processes, as well as the need to address all forms

of violence against women.

5 is paper will adhere to the denition of “violence against women” as provided for in the Declaration on the Elimination of Violence against Women. Article 1

denes violence against women as “any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suering to

women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life”. See UNGA ‘Declaration on the

Elimination of Violence against Women’ (20 December 1993) UN DocA/RES/48/104

6 See e.g. Inter-American Commission on Human Rights (IACHR) ‘Report on the Rights of Women in Chile: Equality in the family, Labor and Political Spheres’

(27 March 2009) OEA/Ser.L/V/II.134, 43.

7 Please note, the primary objective of this paper is not to oer an extensive overview of gaps within the legal realm which leave women’s rights unprotected and

thus, this subject will only be highlighted to demonstrate the existence of such gaps.

8 See generally Charlotte Bunch and Samantha Frost, ‘Women’s Human Rights: An Introduction’ in Cheris Kramarae and Dale Spender (eds), Routledge

International Encyclopedia of Women, Global Women’s Issues and Knowledge (Routledge 27 December 2000).

9 ere is a growing trend which recognises the protection and advancement of women’s rights as a key component of global stability, peace and prosperity. For

example, UN Security Council Resolution 1325 (SCR 1325), passed in 2000, calls for a gendered perspective in peacekeeping, peacebuilding and post-conict

reconstruction, as well as the direct involvement of women in planning and implementing these concerns.

10 Newman Wadesango et al., ‘Violation of Women’s Rights by Harmful Traditional Practices’ (2011) 13(2) Anthropologist 121-129.

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