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Vol 22 No 11 Nov/Dec 2017

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Domestic Violence and International Law


ISBN13: 9781849463577
Published: March 2012
Publisher: Hart Publishing
Country of Publication: UK
Format: Paperback (Hardback 2010)
Price: £28.99
Hardback edition , ISBN13 9781841139111



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Domestic Violence and International Law argues that certain forms of domestic violence are a violation of international human rights law.

The argument is based on the international law principle that, where a state fails to protect a vulnerable group of people from harm, whether perpetrated by the state or private actors, it has breached its obligations to protect against human rights violation.

This book provides a comprehensive legal analysis for why a state should be accountable in international law for allowing women to suffer extreme forms of domestic violence and how this can help individual victims. The author pushes the boundaries of the doctrine of states' 'Responsibility to Protect', a developing area of international law, which holds states responsible for the failure to protect vulnerable groups from political violence, such as ethnic cleansing, mass rape, sexual slavery or torture. Where the violence is equivalent, this obligation ought to extend to victims of private violence.

It is irrelevant that the violence is perpetrated by individuals and not state actors such as soldiers or the police. The state's breach of its responsibility is in its failure to act effectively in domestic violence cases; and in its silent endorsement of the violence, it becomes complicit.

The book seeks to reformulate academic and political debate on domestic violence and the responsibility of states under international law. It is based on empirical data combined with an honest assessment of whether or not domestic violence is recognised by the international community as a human rights violation.

Subjects:
Human Rights and Civil Liberties, Family Law, International Criminal Law
Contents:
1. Domestic Violence as a Violation of International Human Rights Law
Introduction
Sources of International Law
Complexities of Customary International Law
The Elements of Customary International Law
Traditional Theories of Customary International Law
Contemporary Theories of Customary International Law
Applying Customary International Law to Domestic Violence
Traditional Theories of Customary International Law
Contemporary Theories of Customary International Law
Is there an Emerging Norm Prohibiting Domestic Violence?
Women's Rights in International Law—Historical Overview
Violence against Women in International Law—Historical Overview
Domestic Violence in International Law—Historical Overview and Status Quo: 1946–2000
1946: Commission on the Status of Women
1979: CEDAW
1979: CEDAW Committee
1985: UN Resolution
1990: UN Resolution
1992: CEDAW Committee General Recommendation 19
1994: DEVAW
1995: Beijing Platform for Action
Domestic Violence in International Law—Historical Overview and Status Quo: 2000–09
2000: The CEDAW Optional Protocol
2000: UN General Comment No 28
2004: General Assembly Resolution on the Elimination of Domestic Violence against Women
1994–2009: Reports of the Special Rapporteur on violence against women, its causes and consequences
2005–06: Resolutions and Action by the Office of the High Commissioner for Human Rights
2001–08: Resolutions of the Commission on Human Rights and the Human Rights Council
2004–09: Further General Assembly Resolutions
2006–08: Work of the Secretary-General
2000–09: Work of the Treaty Monitoring Bodies
The Approach of Regional Human Rights Law and Bodies to Domestic Violence
Inter-American System
European System
African System
Specification of Certain Forms of Violence against Women in International Law
Mass Rape
Female Genital Cutting
Trafficking
The Writings of Respected Authors and Scholars
The Distinction between Public and Private
The State's Role
Cultural Relativism
Discrimination and Violence
Conclusion
2. Freedom from Systemic Intimate Violence: The Human Right and Corresponding State Obligation
The Substance of the Right
Exploring the Internationalising Elements of Domestic Violence
The Elements of Systemic Intimate Violence
Severe Acts of Emotional or Physical Harm
Continuum of Harm
Between Intimates
Group Vulnerability of Women
The Failure of the State to Help
Moving from an Emerging Norm to a Right in International Law
Steps Needed in International Law
The First Step: The Enunciation of a Specific Legal Right
The Second Step: Political Consequences of Domestic Violence
The Third Step: Bringing Domestic Violence into the Remit of Non-Gender-Specific Human Rights Bodies
Good Governance Practices: What States Should Do to Protect Against Systemic Intimate Violence
Legislative Steps
Anti-discrimination Provisions
Acts of Violence
Continuum of Harm
Relationship
Criminal v Civil Sanctions
Balancing Civil and Criminal Sanctions: The Protection Order
Compensation and Damages
Evidence and Burden of Proof
Labour Laws
Murder by Victims
Fair Procedure and Rules of Justice
Remedies and the Provision of Services
Police Protection and Implementation of the Law
Statutory Obligation to Protect
Training
Specialised Units
Female Officers
Data and Inter-departmental Communication
Police Powers
Judiciary and Judicial Agents
Knowledge of Rights
Shelters
Emergency and Long-term Health and Economic Well-being
Statistics, Indicators and Budget
National Action Plans
Conclusion
3. State Responsibility in Relation to Systemic Intimate Violence
Principles of State Responsibility
Background
Who are the Subjects of International Law?
Doctrine of Denial of Justice
Is a State Responsible for the Actions of Non-State Actors?
Elements of State Responsibility and their Application to Systemic Intimate Violence
Conduct Element
Wrongfulness Element
Circumstances Precluding Wrongfulness
Application of the Justification Principles to Systemic Intimate Violence
Competing Values: Privacy
Fault and Knowledge
Role of the Judiciary
Consequences of an Internationally Wrongful Act
Conclusion
4. The Benefits of International Law for Victims of Systemic Intimate Violence
Non-coercive Compliance Theory
The Great Debate: Is International Law Effective?
Suspicion of International Law in Brief
Support of International Law in Brief
The Multi-Faceted Process of International Law
Norm Infiltration
Symbiotic Relationship between National and International Law
Deficiency Not Nugatory
Proliferation of Actors Facilitating Compliance with International Law
Functions of International Human Rights Law in respect of Violence against Women
International Law Leading to Change: The Expressive and Implementing Functions
How International Law Changed the Legal Response to Mass Rape
How International Law Changed the Legal Response to Enforced Disappearances
How International Law Changed the Legal Response to FGC
How International Law has Already Changed the Legal Response to Asylum and Domestic Violence
Non-coercive Compliance Theory in respect of Systemic Intimate Violence
Before DEVAW
After DEVAW
Domestic Violence in Mexico Before and After DEVAW
Domestic Violence in Nicaragua Before and After DEVAW
Domestic Violence in Sweden Before and After DEVAW
General Examples of Improvements in Domestic Violence Laws and Policies
Conclusion